The Dow Chemical Company’s Bhopal Related Legal Liabilities

Production unit, abandoned Union Carbide factory, Bhopal

 

 

The Dow Chemical Company (Dow) claims that all legal matters concerning the Bhopal disaster are closed. This is simply not true. Dow is a named respondent and/ or summoned to appear in a number of ongoing cases arising from Union Carbide’s business in Bhopal:

 

1. Dow is a named respondent in a forthcoming ‘curative petition’ in India’s Supreme Court aiming to address inadequacies within the 1989 civil settlement (U.S. $470 million). A hearing date is due after postponement of the scheduled date, August 5th, 2014.

The Indian Government’s (GoI) stated aim for the petition is to: ‘cure the gross miscarriage of justice and perpetration of irremediable injustice being suffered by the victims of the Bhopal Gas Tragedy; It is submitted that the settlement compensation…. was based on certain factual assumptions which have been found to be completely incorrect and far removed from reality.’

GoI is seeking additional compensation, based on higher figures for the dead and injured, of $1- 1.5billion. The Bhopal survivors groups have challenged the Government to use its own, previously published, figures (Indian Council of Medical Research, epidemiological report, 2004) for the dead and injured which would require a settlement of $8.1billion. The other respondents are Union Carbide Corporation, Union Carbide India Limited and Eveready Industries.

 

2. Dow’s wholly owned subsidiary Union Carbide Corporation (UCC) is wanted on CRIMINAL charges of ‘culpable homicide not amounting to murder’ and is a ‘proclaimed absconder’ from Indian justice. Dow has total control of UCC but has never produced UCC in court.

After the 2001 takeover of UCC, Dow used an Indian subsidiary, Dow Private India Ltd, to block a 2005 judicial summons, addressed to its Michigan HQ requesting it explain the non-appearance of UCC in the courts. The court removed the blocking order, in 2012, and a notice was served to Dow requiring it to explain why UCC has repeatedly ignored court summons. Dow did not attend the court, nor did it attend further hearings on March 13, 2015 and the 19th December 2015.

In 2016, a White House ‘We The People’ petition was launched criticising the US Department of Justice. The petition stated: “Under a Mutual Legal Assistance Treaty, India sent 4 notices to the US Dept. of Justice to summon Dow to explain UCC’s whereabouts. The DoJ has ignored or obstructed every notice… We insist that the US govt. meet its obligations under Treaty & international law by immediately serving notice upon Dow to attend court in Bhopal on July 13, 2016.” The notice was not served and Dow did not attend the Bhopal court.

On Friday 13 Jan 2017, the court of the Chief Judicial Magistrate, in Bhopal, issued summons to Dow Chemical, via email, directly to Amy Wilson, Corporate Secretary and Associate General Counsel of the Dow Chemical company. The court stated that: “as per the provisions under Section 65 of Code of Criminal Procedure, court can order to execute summons using any new means.”

Ms. Wilson did not attend the court and a second summons was issued for a hearing to which she also did not attend. A third summons has now been issued requiring Ms. Wilson to attend court in Bhopal on the 15th November 2017.

Audrey Gaughran, Amnesty International’s Director for Global Issues, said: “The time has come for Dow to appear in an Indian court and account for the failure of its wholly-owned subsidiary, Union Carbide, to respond to the criminal charges against it.”

 

3. Dow is a named respondent in public interest litigation in the Madhya Pradesh High Court (2004) seeking remediation of the abandoned Union Carbide factory site. But Dow continues to resist the Ministry’s 2006 request for a £16 million deposit towards initial costs.

Dow refuses to acknowledge the official position of the Indian government, as expressed in a letter to the Lower District Court, Manhattan, dated June 8, 2004, viz: “It is the official position of the Government of India that the previous settlement of claims concerning the 1984 Bhopal Gas Disaster between Union Carbide and Union of India has no legal bearing on or relation whatsoever to the environmental contamination… Pursuant to the ‘polluter pays’ principle recognized by both the United States and India, Union Carbide should bear all the financial burden and cost for the purpose of environmental clean-up and remediation.  The Union of India and the State Government of Madhya Pradesh shall not bear any financial burden for this purpose.”

 

4. Union Carbide Corporation has been subject to three class-action lawsuits in the Southern District New York Court Since 1999. The US courts accept that this is a separate matter from the 1984 gas disaster and has not been part of any pre-existing settlement. The last of the class actions, known as Sahu II, was dismissed on July 30, 2014. A petition for re-hearing was filed with the Second Circuit Court but, in an extraordinary turn of events on the 15th August, 2016, an order was issued dismissing the petition without any comment.

History of Sahu II: CLICK

History of Bano, Sahu I & II class actions: CLICK

Dow’s flawed legal defence. Further details concerning ownership of Union Carbide: CLICK

Dow’s corporate veil: CLICK

Marco Simons , Legal Director of EarthRights International, assisting the Bhopal plaintiffs in the case said:

“John Couvaras, the project manager who directly oversaw the construction of the Bhopal plant, testified that he worked for Union Carbide at the time. A manager from Union Carbide’s Indian subsidiary confirmed this assertion.” 

“Astonishingly, the court simply didn’t care. Couvaras’s own testimony about the company he worked for is ‘unsubstantiated,’ (Judge) Keenan decided. Instead, Union Carbide’s statements that Couvaras worked for its subsidiary were ‘conclusive’ evidence. If you ever thought you knew your own employer’s identity, think again — your testimony on that subject isn’t even really evidence.”

“After the Bhopal debacle, Union Carbide packed up and left a mess that’s still poisoning residents and their environment, and its mess is now Dow’s problem. People living near the plant continue to suffer physical ailments, live on contaminated property, and drink poisoned water. Not only have the victims been denied justice at every door they’ve knocked on, they have also been sued for seeking justice in the first place.”  (Note: Dow has tried to sue Bhopal activists four different times in Indian courts over their continued protests against the company).

 

We believe Dow & DuPont must finally accept responsibility for Bhopal. Until then, The Bhopal Medical Appeal funds two award-winning clinics in the city. Both offer free, first-class care to victims of the gas disaster or the ongoing water contamination. The survivors have nowhere else left to turn – please help if you can.