Bano v. Union Carbide Corp.

Citation361 F.3d 696
Decision Date17 March 2004
Docket NumberNo. 03-7416.,03-7416.
PartiesSajida BANO, Haseena BI, Sunil Kumar, Dr. Stanley Norton, Asad Khan, Shiv Narayan Maithil, Devendra Kumar Yadav, Bhopal Gas Peedit Mahila Udyog Sangathan (BGPMUS), Gas Peedit Nirashrit Pension Bhogi Sangharsh Morcha (GPNPBSM), Bhopal Gas Peedit Mahila Stationery Karmachari Sangh (BGPMSKS), Bhopal Gas Peedit Sangharsh Sahayog Samiti (BGPSSS), and Bhopal Group for Information and Action (BGIA), on behalf of themselves and all others similarly situated, Plaintiffs, Haseena BI, Bhopal Gas Peedit Mahila Udyog Sangathan (BGPMUS), Bhopal Gas Peedit Mahila Stationery Karmachari Sangh (BGPMSKS), Bhopal Gas Peedit Sangharsh Sahayog Samiti (BGPSSS), and Bhopal Group for Information and Action (BGIA), on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. UNION CARBIDE CORPORATION and Warren Anderson, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Curtis V. Trinko, New York, NY (Curtis V. Trinko, LLP, New York, New York, H. Rajan Sharma, Edison, NJ, Richard L Herz, Earthrights International, Washington, D.C., on the brief), for Plaintiffs-Appellants.

William A. Krohley, New York, NY (William C. Heck, Kelley Drye & Warren, New York, NY, on the brief), for Defendants-Appellees.

Members of the United States House of Representatives Frank Pallone, Jr., Raul M. Grijalva, Sherrod Brown, Eni F.H. Faleomavaega, Janice D. Schakowsky, Dennis J. Kucinich, Sheila Jackson-Lee, Joseph Crowley, and Fortney Pete Stark, Washington, D.C., filed a brief as Amici Curiae in support of Appellants.

Before: FEINBERG, KEARSE, and RAGGI, Circuit Judges.

KEARSE, Circuit Judge.

Plaintiffs Haseena Bi and several organizations representing residents of Bhopal, India, to wit, Bhopal Gas Peedit Mahila Udyog Sangathan ("BGPMUS"), Bhopal Gas Peedit Mahila Stationery Karmachari Sangh ("BGPMSKS"), Bhopal Gas Peedit Sangharsh Sahayog Samiti ("BGPSSS"), and Bhopal Group for Information and Action ("BGIA") (collectively the "Bhopal organizations"), appeal from a judgment of the United States District Court for the Southern District of New York, John F. Keenan, Judge, dismissing their amended complaint seeking monetary and equitable relief for personal injuries and property damage allegedly suffered by Bi and persons similarly situated as a result of exposure to water contaminated by chemicals released from a factory site operated in Bhopal in 1969-1984 by a subsidiary of defendant Union Carbide Corp. ("Union Carbide"). The district court granted defendants' motion to dismiss the amended complaint pursuant to Fed.R.Civ.P. 12(b)(1), 12(b)(6) and/or 56, ruling (1) that Bi's damages claims for personal injury and property damage are barred by the statutes of limitations set forth in New York Civil Practice Law and Rules ("N.Y.C.P.L.R." or "CPLR") §§ 214 and 214-c (McKinney 2003), (2) that the Bhopal organizations lack standing to bring claims for money damages on behalf of their members, and (3) that the injunctive relief demanded in the amended complaint is not feasible. On appeal, plaintiffs contend (a) that the district court's statute-of-limitations ruling was erroneous because Bi's personal injury claims are timely under, inter alia, a continuing trespass theory or a continuing nuisance theory, and because defendants failed to carry their burden of showing when Bi's property damage claims accrued; (b) that the court's ruling on standing was erroneous because the Bhopal organizations should be allowed to pursue damages claims as putative class representatives; and (c) that the court's conclusion as to the impracticability of the requested equitable relief was unsubstantiated. For the reasons that follow, we affirm the judgment of the district court except to the extent that it dismissed Bi's claims for monetary and injunctive relief for alleged injury to her property. As to those claims, we vacate the judgment and remand for further proceedings, including consideration of whether those claims may be pursued in a class action.

I. BACKGROUND

In 1984, a highly toxic gas, methyl isocyanate, was released into the air from a chemical manufacturing facility in Bhopal operated by Union Carbide India Limited ("UCIL"), an Indian company that was 50.9%-owned by Union Carbide, killing thousands of people and injuring more than 200,000 others (the "gas-release disaster"). See generally In re Union Carbide Corp. Gas Plant Disaster, 809 F.2d 195, 197 (2d Cir.), cert. denied, 484 U.S. 871, 108 S.Ct. 199 (1987). The present lawsuit is one of many commenced after that disaster. See Bano v. Union Carbide Corp., 273 F.3d 120, 122-24 (2d Cir.2001) ("Bano I"). In Bano I, we affirmed the dismissal of so much of the present complaint as asserted claims for injuries arising out of the gas-release disaster, ruling that those claims were barred by a settlement between Union Carbide and the government of India that had been approved by the Supreme Court of India. See id. at 122; see also Bi v. Union Carbide Chemicals & Plastics Co., 984 F.2d 582, 586 (2d Cir.) (affirming ruling that individual victims lack standing to challenge the settlement negotiated between Union Carbide and India), cert. denied, 510 U.S. 862, 114 S.Ct. 179, 126 L.Ed.2d 138 (1993). We noted in Bano I, however, that the district court had dismissed without discussion the common-law claims for environmental injuries unrelated to the gas-release disaster, and we remanded for further proceedings on those claims. See 273 F.3d at 132-33.

A. UCIL's Plant Operations and Storage of Toxic Wastes

The portion of the amended complaint whose dismissal was vacated in Bano I alleged principally that residents of and near Bhopal suffered physical injury and property damage caused by pollution that emanated from the site of UCIL's operations in Bhopal and entered the residents' water supply. For purposes of the present appeal from the district court's grant of summary judgment and its decision that the Bhopal organizations lacked standing as a matter of law, we view the record in the light most favorable to plaintiffs as the parties against whom summary judgment was granted.

UCIL's Bhopal plant commenced operation in 1969 on two noncontiguous tracts of land, totaling 88 acres, leased at various times from the Indian State of Madhya Pradesh. At the plant, pesticides imported from a Union Carbide facility in West Virginia were converted into a marketable product for sale in India. In 1979 or 1980, UCIL began to manufacture at its Bhopal plant the pesticides that it previously had been importing. As a byproduct of the expanded operations, hazardous wastes were produced. UCIL kept these wastes in tanks and pits at the plant site, as well as in three solar evaporation ponds constructed on the noncontiguous leased property some 800 meters north of the plant.

A UCIL document indicates that in March 1982, UCIL was aware of leakage from one of the evaporation ponds and that another pond showed signs of leakage. In April 1982, a UCIL document noted that "continued leakage from [an] evaporation pond [was] causing great concern" and that repairs were being planned with the assistance of consultants. Immediately following the 1984 gas-release disaster, operations at the UCIL plant were discontinued, and the plant was closed in early 1985. Thereafter, the Indian government took control of the unit responsible for the production of methyl isocyanate. Apparently it is undisputed that the plant never resumed normal operations and that no effluent was added to the solar evaporation ponds after 1984.

In 1989, the Madhya Pradesh government asked the National Environmental Engineering Research Institute ("NEERI"), an Indian governmental organization, to conduct a study of the environmental damage caused by the solar evaporation ponds in order to help determine whether the land where those ponds were located was suitable for alternative industrial uses. In April 1990, NEERI issued a report stating that its study found no evidence of certain chemicals that would be indicative of pollution in test wells dug within a one-kilometer radius of the solar evaporation ponds and found that the water quality met local standards in test wells dug within a 10-kilometer radius of the ponds. (See NEERI, Assessment of Pollution Damage Due to Solar Evaporation Ponds at UCIL, Bhopal (1990) ("First NEERI Report" or "First Report") at xiv-xv.) Its

[i]nvestigations revealed that the land and water environment have not been contaminated due to the provision of flexible membrane liner in the pond and [the] presence of low permeable plastic clay below [the solar evaporation ponds].

(Id. at unnumbered Foreword page.) "The overall conclusion of the study [wa]s that no contamination of soils and ground water was observed due to the impoundment of wastewater in solar evaporation ponds." (Id. at xvii.) However, the First NEERI Report recommended remediation of the waste sites, to wit, excavation of the sediment, residue, and contaminated soil from two of the solar evaporation ponds and their containment in a secure landfill in the third pond. (See id. at xviii.) UCIL thereafter undertook these tasks, but work to close and cap the secure landfill was not completed until July 1998.

In the meantime, there were additional environmental studies and a change in UCIL's corporate ownership. In September 1994, Union Carbide sold all of its shares in UCIL, which was subsequently renamed "Eveready Industries India Limited" ("EIIL"). EIIL succeeded to UCIL's lease, which required EIIL to use the land for industrial purposes. EIIL retained NEERI to assess environmental conditions on the plant premises in 1994.

In October 1997, NEERI responded with a report entitled Assessment of Contaminated Areas Due to Past Waste Disposal Practices at EIIL, Bhopal (1997) ("Second...

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