September 27, 2017, Mundra, Gujarat:

Fishing communities and farmers affected by Tata Mundra said on Friday that they would approach the U.S. Supreme Court to review the decision of  U.S. Court of Appeals for the District of Columbia Circuit, which upheld the entitlement of the World Bank Group to “absolute immunity” from suits in U.S. courts.

The Court of Appeals on the Tata Mundra case, Budha Ismail Jam v. IFC, had ruled on Wednesday that it would not reconsider its immunity rule, despite the fact that one judge has stated that this rule is “wrong.” The D.C. Circuit left standing a decision that the International Finance Corporation (IFC), the private lending arm of the World Bank Group, could not be sued for its role in the controversial Tata Mundra coal-fired power plant that has devastated communities in Mundra, Gujarat.

In the ruling, the D.C. Circuit concluded that previous decisions concerning international organisations required the court to find the IFC immune from suit in this case. One of the judges, however, wrote separately, expressing strong disagreement with IFC immunity and noting other federal courts had rejected the prior D.C. Circuit cases. The plaintiffs then asked the D.C. Circuit to reconsider the case “en banc” – a procedure that allows the judges to re-evaluate their prior decisions – but the Appeals court refused to do so.

Budha Jam, the main complainant against the IFC, expressed disappointment over this decision and said that they would not give up their struggle for justice. “The court’s decision tells the world that the doors of justice are not open to the poor and marginalised when it comes to powerful institutions like IFC,” said Gajendrasinh Jadeja, the head of Navinal Panchayat, a local village involved in the case.

Richard Herz, senior litigation attorney at EarthRights International (ERI), who argued the case for the plaintiffs said, “The court’s decision says the IFC is above the law and accountable to no one, regardless of how much harm it causes. Such sweeping immunity has already been rejected by other federal courts, it is inconsistent with Supreme Court precedent, and it is contrary to the IFC’s mission. The Supreme Court should correct this error.”

Fishing communities and farmers filed suit against the IFC in 2015 over the destruction of their livelihoods and property and threats to their health caused by the IFC-funded Tata Mundra coal-fired power plant in Mundra. The plaintiffs appealed after a district court found that the IFC was immune from suit. On appeal, the D.C. Circuit recognised the “dismal” situation of the Plaintiffs, noting IFC did not deny that the plant had caused substantial damage and yet found IFC could not be sued based on the Circuit’s previous decisions.

The plaintiffs appealed after a district court found that the IFC was immune from suit. On appeal, the D.C. Circuit recognised the “dismal” situation of the Plaintiffs, noting IFC did not deny that the plant had caused substantial damage and yet found IFC could not be sued based on the Circuit’s previous decisions. In her separate opinion, Judge Nina Pillard had criticised those decisions as “wrongly decided” and suggested they should be reconsidered. She wrote that the D.C. Circuit had taken “a wrong turn” when it “grant[ed] international organisations a static, absolute immunity” and in limiting the IFC’s explicit waiver of immunity. The plaintiffs will now ask the U.S. Supreme Court to hear their case.