The world's worst industrial disaster, in Bhopal in 1984, left an estimated 8000 dead within a few days of the gas leak. Over subsequent years, about 25,000 have died due to toxic-gas-related diseases, and the lethal effects of the gas leak, however, are still being felt even 25 years on, in the shape of groundwater contamination. H Rajan Sharma is an international lawyer practicing in New York. He is currently lead counsel in a class-action litigation against Union Carbide concerning environmental pollution caused by its Bhopal plant. In the weeks prior to the 25th anniversary of the gas leak, Sharma discussed the case with Himal by e-mail.
In 1999, you filed the class-action suit against Union Carbide Corporation (which had been bought by Dow Chemical in 2001), seeking damages for environmental contamination and for the clean-up of the Bhopal plant, which polluted sub-surface groundwater. What are the key contentions of the suit, and the current position?
The key contentions are that Union Carbide transferred technology to its Indian subsidiary, Union Carbide India Limited (UCIL), of the kind it knew would cause an environmental-pollution problem at the Bhopal location. Our case also contends that Union Carbide was involved in a defective and incomplete clean-up of the plant site after its closure in 1984 until at least 1994. This caused or further contributed to the pollution threat posed by the plant, including the creation of a massive landfill containing thousands of tonnes of toxic waste in the area of the plant's solar evaporation ponds.
The complaint seeks damages, medical monitoring and clean-up of the above-ground waste as well as the groundwater contamination. The complaint also relies on several environmental surveys from independent organisations showing that the drinking water of at least 16 residential communities near the Bhopal plant has been affected by the sub-surface pollution – which, we believe, continues to spread through the groundwater table. Meanwhile, the dismissal of the case on several occasions in the past has had more to do with Union Carbide's efforts to distort the factual record of their extensive involvement in the Bhopal plant than anything else.
You have unearthed evidence to prove that monetary factors were responsible for UCC's low safety standards at the Bhopal plant, which contributed to the magnitude of the disaster. Could you elaborate on this 'criminal negligence'?
Documents obtained as part of the litigation process show that several factors contributed to the defective and improper technology utilised at the Bhopal plant. These extended to safety systems as well as core processes used in manufacture, including changes in choice of materials, instrumentation and the like. One of those factors was the desire of Union Carbide to maintain a majority interest in its Indian subsidiary, despite regulations such as the Foreign Exchange Regulation Act (FERA) under Indian law, which would have required a voluntary dilution of its equity. Had UCC made the decision not to manufacture pesticides in Bhopal, its holding in the Indian subsidiary would have been reduced to 40 percent under FERA. Another factor was the concerns over the licensing of proprietary technology to UCIL, while Union Carbide was simultaneously required to lower its equity stake in UCIL from 60 percent to 40 percent under FERA. As it happens, Union Carbide was able to retain 50.9 percent ownership of UCIL, and the technology ultimately transferred was not entirely its own.