(District Court) Proposed Amended Complaint
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Case 1:15-cv-00612-JDB Document 63-1 Filed 03/12/20 Page 1 of 104 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BUDHA ISMAIL JAM, Sanghad, Taluka Anjar Dist. Kutch, Gujarat, India, KASHUBHAI ABHRAMBHAI MANJALIA, 209-1 Muslimwas Sanghad, Taluka Anjar Dist. Kutch, Gujarat, India, SIDIK KASAM JAM, Sanghad, Talkua Anjar Dist. Kutch, Gujarat, India, RANUBHA JADEJA, Navinal, Taluka Mundra Dist. Kutch, Gujarat, India, on behalf of themselves and all others similar situated; [PROPOSED AMENDED] CLASS ACTION COMPLAINT FOR NAVINAL PANCHAYAT, DAMAGES AND EQUITABLE Navinal, Taluka Mundra RELIEF Dist. Kutch, Gujarat, India 370405, Civil Action No. 15-cv-00612 (JDB) and MACHIMAR ADHIKAR SANGHARASH SANGATHAN (MASS), Bhadreshwar, Taluka Mundra Dist. Kutch, Gujarat, India, Plaintiffs, v. INTERNATIONAL FINANCE CORPORATION 2121 Pennsylvania Avenue, NW Washington, D.C., 20433 Defendant Case 1:15-cv-00612-JDB Document 63-1 Filed 03/12/20 Page 2 of 104 COMPLAINT TABLE OF CONTENTS I. SUMMARY OF THE ACTION ......................................................................................1 II. PLAINTIFFS AND DEFENDANT .................................................................................5 III. THE TATA MUNDRA PROJECT, ENABLED AND FINANCED BY THE IFC, HAS SIGNIFICANTLY HARMED THE LIVES AND LIVELIHOODS OF MEMBERS OF TRADITIONAL LOCAL COMMUNITIES ..........................................6 A. Plaintiffs’ communities have depended on their natural resources for generations ................................................................................................................ 6 B. The massive Tata Mundra coal-fired power plant was built among these traditional communities.............................................................................................. 8 1. The Plant burns millions of tons of coal annually ............................................. 9 2. The Plant takes in enormous quantities of seawater, and discharges heated water into the sea through a huge outfall channel .................................. 9 C. The IFC, whose goals are to end extreme poverty and increase shared prosperity, funded the Tata Mundra Plant and enabled its construction..................... 11 1. The IFC was formed to fight poverty and promote development through private-sector projects. ................................................................................... 11 2. The IFC’s investment enabled the Tata Mundra Project, which it recognized would have significant negative environmental and social impacts .......................................................................................................... 12 3. The IFC disbursed its loan despite changes to the design and operating conditions that contributed to negative impacts. ............................................. 16 D. The Tata Mundra Plant has fundamentally altered the local environment with harmful effects on local communities. ...................................................................... 18 1. Construction and design of the Plant, particularly the intake and outfall channels, has substantially harmed local communities and resulted in both economic and physical displacement. ..................................................... 18 2. Dredging of and discharge from the cooling system’s outfall channel has substantially changed the local marine ecosystem and led to a drastic decline in the fish catch local fishing communities rely upon. ........................ 19 i Case 1:15-cv-00612-JDB Document 63-1 Filed 03/12/20 Page 3 of 104 3. Construction and design of the Plant has restricted access to grazing lands and traditional fishing grounds and increased the time and cost of travel. ....... 21 4. Air pollution has already substantially affected the quality of the air; certain pollutants are already present in levels that are dangerous to human health, in violation of IFC standards and Indian air quality standards. ....................................................................................................... 22 5. Coal dust and fly ash frequently contaminate agriculture, fish laid out to dry, homes and property, and threaten human health. ..................................... 24 6. Salt water intrusion into the groundwater has destroyed vital sources of drinking and irrigation water. ......................................................................... 25 E. The IFC’s Obligations in Financing Development Projects ...................................... 26 F. After Plaintiff MASS filed a complaint with the CAO, it found that the IFC failed to ensure that the Tata Mundra Project met environmental and social requirements intended to protect communities and the environment. ........................ 34 G. IFC failed to meet its obligations. ............................................................................ 39 IV. THE IFC IS RESPONSIBLE FOR THE HARM FROM THE TATA MUNDRA PROJECT. ..................................................................................................................... 44 V. THE IFC IS NOT IMMUNE FROM SUIT .................................................................... 48 A. From the beginning of the Tata Mundra Project’s development, evaluation and supervision of the project, and the ultimate authority over the terms under which the project could go forward occurred in IFC’s Washington, D.C. headquarters. ...... 48 B. Despite knowing that a project of this nature would cause damage if not properly designed and operated, IFC still made the decision to finance the project based on information that IFC knew or should have known was incorrect and/or insufficient to understand what mitigation measures needed to be put in place to prevent harm to the Plaintiffs and others similarly situated. ........................ 53 C. After Board approval of the Tata Mundra Project, IFC’s monitoring and supervision of the Project’s environmental and social performance and the decision to continue to disburse the loan despite worsening performance occurred in IFC’s Washington, D.C. headquarters. .................................................. 56 D. In addition to the normal monitoring and supervising activities, high-level IFC staff based in Washington, D.C., scrutinized and exercised control over the Tata Mundra Project because of the CAO process that was began early in the Project. ................................................................................................................................ 63 ii Case 1:15-cv-00612-JDB Document 63-1 Filed 03/12/20 Page 4 of 104 VI. EACH PLAINTIFF HAS BEEN HARMED BY THE TATA MUNDRA PROJECT. ..................................................................................................................... 70 VII. CLASS ACTION ALLEGATIONS: PLAINTIFFS REPRESENT A CLASS OF INDIVIDUALS HARMED BY THE TATA MUNDRA PROJECT. ............................. 79 VIII. THIS COURT HAS JURISDICTION AND IS THE PROPER VENUE. ....................... 85 IX. PLAINTIFFS ARE ENTITLED TO RELIEF ON MULTIPLE CLAIMS. ..................... 85 X. DEMAND FOR JURY TRIAL ...................................................................................... 99 XI. PRAYER FOR RELIEF ................................................................................................ 99 iii Case 1:15-cv-00612-JDB Document 63-1 Filed 03/12/20 Page 5 of 104 COMPLAINT 1. Plaintiffs, by their attorneys, bring this action both individually and on behalf of all other persons similarly situated, against Defendant International Finance Corporation (“IFC”), for compensatory damages, punitive damages and injunctive relief relating to property damage, environmental destruction, loss of livelihoods, and threats to human health arising from the Tata Mundra Ultra Mega Power Plant (the “Tata Mundra Plant,” “the Plant,” “Tata Mundra Project,” or “the Project”) in Kutch District in Gujarat, India. The IFC financed the Tata Mundra Plant and enabled its construction, despite knowing that the coal-fired power plant would cause significant harm to surrounding communities, and failed to mitigate that harm, in violation of applicable laws, industry standards, and their own standards. The IFC’s own ombudsman has found that the IFC failed to take necessary steps to prevent the harms it knew were likely to occur, has failed to remedy the harm that has already occurred, and that the IFC remains out of compliance with its obligations. I. SUMMARY OF THE ACTION 2. This case arises out of the irresponsible and negligent conduct of the International Finance Corporation in appraising, financing, advising, supervising and monitoring its significant loan to enable the development of the Tata Mundra Project in Gujarat, India. The IFC invested $450 million in Coastal Gujarat Power Limited (CGPL), a subsidiary of Tata Power, an Indian company, to develop the 4,150 mega-watt coal-fired Tata Mundra Plant. Without the IFC’s funding, the Tata Mundra Project could not have gone forward. 3. The Tata Mundra Plant is located in an ecologically rich, but fragile, portion of the Kutch coast in Gujarat, India. The area is home to traditional agricultural and fishing communities who rely upon their natural environment for their survival: the land for farming and 1 Case 1:15-cv-00612-JDB Document 63-1 Filed 03/12/20 Page 6 of 104 animal rearing; the groundwater for irrigation and drinking water; the fish and other coastal marine resources for their income; and upon clean air to breathe. Despite knowing of these communities and their vulnerability