English High Court Holds BHP Liable for 2015 Brazilian Dam Disaster

The English High Court ruled on October 13, 2023, that the Australian company BHP Mining is liable for the catastrophic collapse of the Fundão Dam in Brazil in 2015. This incident resulted in the country’s worst environmental disaster, claiming the lives of 19 individuals. The court found that the collapse was a foreseeable event, rejecting BHP’s defense that it was a “sudden and unexpected” occurrence.

In a detailed judgment, Justice Finola O’Farrell emphasized that evidence showed the dam exhibited clear signs of distress, such as seepage and cracking, for over a year prior to the disaster. A thorough stability analysis at that time would have indicated a significant risk of collapse. This ruling is particularly significant because it applies Brazilian environmental law within the English legal framework.

The case faced considerable challenges in the English courts. BHP had previously claimed that the UK lawsuit constituted an “abuse of process” because it duplicated existing Brazilian legal proceedings. However, the court found that it could proceed under Brazilian law, defining BHP as a “polluter” according to the strict liability regime in Article 3, IV of the Brazilian Environmental Law. This article holds companies accountable regardless of fault, thereby expanding the scope of responsibility to include not just direct operators but also those who finance or benefit from the operations.

Impact of the Ruling and Environmental Consequences

Justice O’Farrell noted the importance of a broad and multifactorial approach when assigning liability. The ruling indicates that those with control over the activity, who create risks, or who derive economic benefits from such activities can be considered liable. This precedent may lead to increased accountability for multinational corporations operating in foreign jurisdictions.

Following the dam’s collapse, the environmental impact was devastating. The rupture released massive amounts of mine waste into the Doce River, enough to fill approximately 13,000 Olympic-sized swimming pools. A report from the Wilson Center highlighted the severe ecological consequences, including the collection of 29,000 fish carcasses, which disrupted the local food chain and led to significant mortality among birds reliant on fish as a food source. Furthermore, around 80 percent of the native vegetation in the area was destroyed, with Brazilian prosecutors estimating the socio-environmental damage between 37.6 billion to 60.6 billion reais.

Before this landmark decision, various legal proceedings were initiated against top BHP executives, who faced homicide charges related to the deaths caused by the dam collapse. However, these charges were later suspended, leaving the company facing scrutiny without individual accountability for its executives.

The ruling demonstrates a shift toward holding corporations accountable in their home countries for actions that have global repercussions, particularly in terms of environmental impacts. As the case unfolds, it may serve as a catalyst for future legal challenges against companies involved in similar environmental disasters across the globe.