Will Inadequate Environmental
Legislation And Judicial Slumber Allow Future Union Carbides To Get Away With
Murder?
-
Sneha
K. Karle
Even
a lioness protects her cubs from danger, a tiny sparrow spreads her wings to
protect her eggs, have we supposedly the most evolved species become so self-centered
in our own quest for development and riches that we aren’t even stopping and thinking
what kind of world we are leaving behind for our progeny? Principle of Rio
Declaration states ‘The right to development must be filled so as to equitably
meet developmental and environmental needs of present and future generations.’
Let’s
take a look closer home, what does Indian legislation provide for protecting
our environment, is it all implemented well, what are our ghastly stories, what
are the lessons learnt if any, the larger questions to ponder on are the rise
of ecocolonialism or environmental imperialism and most importantly what
is the way ahead- the positive developments and the apparent solutions.
The
year was 1984, the perpetrators, an American company ‘Union Carbide’, the
consequences- an entire city was crippled, black smoke, bleeding bodies, blindness,
frothing mouths, suffocation, 40 tons of methylisocyanate a deadly gas seeped
into the lungs of Bhopal, 10000 died immediately, more than 150000 survivors
are injured for life, soil and groundwater is still contaminated with lethal chemicals,
babies are born with terrible deformities. Rashida Bi, a survivor of this
disaster sums up the grisly effects “Those who escaped with their lives are the
unlucky ones; the lucky ones are those who died on that night.” To top this all
the system’s apathy- paltry sums paid to the victims, after 25 arduous years of
court trial petty sentences were rendered, Warren Anderson the CEO escaped on a
government plane, is living a king-sized life and was rendered absconding, the
site is still not cleaned and lessons still not learnt. We always speak of
moving ahead, globalization, industrialization, New India rising to become a
superpower these are the honey filled words bombarded on us but the ghosts of
the past would never leave us alone unless the treachery is unfolded, unless
true justice is given, unless lessons are learnt……..
It’s
essential to analyze the facts of this worst industrial disaster the world has
faced till date as well as the preposterous handling of it to lay bare the
loopholes in our system.
Why did Union Carbide not apply the same
safety standards at its plant in India as it operated at a sister plant in West
Virginia, US? Is the value of Indian lives cheaper? There was gross negligence on several factors which led to this
catastrophe : the factory was built in the midst of densely populated
settlements, MIC a deadly chemical was produced and stored(permitted exposure
levels in USA and Britain are 0.02 ppm), plant was not designed to handle a
runaway reaction, MIC in the tank was filled to 87% of its capacity while the
maximum permissible was 50%, it was not stored at 0oC as prescribed
and the refrigeration and cooling systems had been shut down 5 months before
the disaster, as part of UCC's global economy drive, vital gauges and
indicators in the MIC tank were defective, the size of the work crew was cut in
half, the maintenance supervisor position had been eliminated, the period of
safety-training to workers in the MIC plant was brought down from 6 months to
15 days. There was no warning sounded no evacuation plan in place;
medical information on chemicals was withheld depriving patients of medical
care. Previously in 1981 and 82
two leakages had happened killing a worker and injuring two more, the
inspection of which revealed several flaws in the plants working. The large
scale disaster of 1984 could have been prevented if a blind eye was not turned
to these minor incidences before. The management of Union carbide could afford
to neglect such critical factors because of our lax regulations which give MNCs
the priggish attitude that they can get away scot-free.
The legal
journey –The
Government of India (GoI) been the sole representative of the victims under
Bhopal Gas Leak (Processing of Claims) Act,1985 filed its suit for compensation and damages against UCC in the US District Court. In May
1986, Judge Keenan ruled that India and not the US was the appropriate forum
for the Bhopal compensation litigation. In the first pre trial hearing in the
consolidated Bhopal litigation in US federal courts, J. Keenan, asked UCC as 'a
matter of fundamental human decency' to provide an interim relief payment of
$5-10 million. UCC agreed to provide $5 million, provided a satisfactory plan
of distribution and accounting of the funds was devised. In November 1985, the
parties agreed to channel the money through the American Red Cross to the
Indian Red Cross. Even after one year of the tragedy, no one had any idea what
the Red Cross would do with the money. Interim relief directed by two Indian
courts was denied. SC then in 1989 ruled that UCC should pay US$470 million as
compensation in full and final settlement. UCC said it would accept the ruling
provided GoI did not pursue any further legal proceedings against the company
and its officials and this offer was accepted without consulting with the
victims. So apparently UCC
opposed the orders of our highest court of law and GoI made it a breeze for
them, it just showcases a mockery of the whole system. Environmental damages
weren’t even addressed in this settlement. In a stark contrast in the same year, US $ 40,000 were spent on the
rehabilitation of sea otters affected by the Alaska oil spill. Each sea otter
was given rations of lobsters costing US$500 per day. Thus the life of an
Indian citizen in Bhopal was clearly much cheaper than that of a sea otter in
America.
In 1991, the Bhopal court
summoned Warren Anderson, to appear on a charge of 'homicide in a criminal
case.' If tried in India and convicted he faced a maximum of ten years in
prison. However, he did not turn up. For years his whereabouts were unknown and
it wasn’t until August 2002 that Greenpeace found him, living a life a luxury in
the Hamptons. Neither the American nor the Indian government seemed interested
in disturbing him with an extradition. In August 1999, Dow Chemical purchased
UCC for US$ 9.3 billion, and claimed that the $470
million settlement with the GoI in 1989, had “resolved all existing and future
claims” against the company. After an arduous
legal journey, judgement was given after quarter of a century in 2010 - a
local court in Bhopal convicted all the eight accused in the case including former
Union Carbide chairman Keshub Mahindra and seven others, for criminal negligence,
which is punishable with a maximum of two years in jail. In the
judgment passed by the Chief judicial magistrate Mohan P Tiwari, only Indians
were found culpable, there was no mention of the main culprit, Warren Anderson,
who was declared an absconder. Justice was reduced to a travesty. “Today’s verdict is a
disaster… They’ve made it look like a traffic accident,” said Satinath Sarangi
of the Bhopal Group for Information and Action, an NGO representing the
survivors. It was only a mild rap on the knuckles that too given 26 years later.
Bhopal
tragedy was not an accident it was gross criminal negligence of an American
company, its cynical disregard for human
life in a third world country but also it was the corrupt
babudom-netas-corporate nexus in our country, which kills thousands every
year by usurping funds allocated for flood relief, medicines and ration for the
poor, building of infrastructure, scams ... the list goes on. And we the privileged ones are also
responsible for it, we remain silent over the issue of corruption but cry foul
only when the fire reaches our houses.
An
important lesson lies to GoI in the fact that a year after Bhopal tragedy , in
West Virginia, another Union Carbide plant released toxic gas into the
atmosphere, resulting in illnesses among town residents. Deeply concerned about
the possibility of a Bhopal-like disaster in the US, Congress acted swiftly to
enact the Emergency Planning and Community Right-to-Know Act (EPCRA). It
required companies that handle hazardous waste to furnish complete disclosure
of their polluting activities, storage facilities, any accidental release of hazardous material into
the environment in a quantity above an established safe limit, and all material
necessary for local authorities to respond to an accident involving the
hazardous material on site. Since the law was enacted, a substantial reduction
in toxic releases was reported by companies who are required to participate in
EPCRA disclosures. Conversely in India successive
governments have laid the foundation for many more Bhopals-GM
crops, FDI in agriculture, Special Economic Zones (SEZ), nuclear
plants, to name a few and are busy amending laws to make it easier for business
and industry to exploit India. Following the 1984 disaster, major
incidences of chemical disasters in India include- a vapor cloud explosion in
the Hindustan Petroleum Corporation Limited Refinery Vishakhapatnam (1997), an
explosion in the Indian Petrochemicals Corporation Limited Gas Cracker Complex,
Nagothane, Maharashtra (1990), a fire in an oil well in Andhra Pradesh (2003).
Over 20 major chemical accidents have been reported in MAH units during
2002–06.
The
recent oil spill incident on august 7 by collision of MCS Chitra and MV
Khalijia off the Mumbai coast sheds light on the fact that lessons have not
been learnt as far as implementing norms are concerned.
Facts-
500 tonnes of oil spilled and 250 containers, some carrying hazardous chemicals
and pesticides spilled into sea.
Repercussion
- Several aquatic species, sea birds found dead along the coast, turtles,
fishes rendered immobile due to viscous oil cover in toto disarray of
biological equilibrium, ripple effect- losses to local fishermen due to ban on
fishing, 24000 ships stranded affecting export market, mangroves damaged.
Likely
causes – none of the ships had pilots or escorts on board,
incoming ship failed to submit pre-arrival notification, faulty electronic
steering system.
Action
taken- joint notice issued by Maharashtra government, and
Mumbai port trust to Mediterranean Shipping company, owners of Chitra. But
India is not a signatory to Bunker Convention of International Maritime
Organization so a heavy compensation is not in sight.
Deeper
issues - poor delegation of responsibility as all logistic
and warehousing matters of major ports are referred to shipping ministry in Delhi,
Chitra is 31 years old and Khalija 26 as opposed to international norms of not
allowing ships of more than 20 years old to operate, do foreign companies let
old and unworthy ships set sail here?
Is
safety taken too lightly in this country? Was the biggest industrial tragedy in
the world (Bhopal disaster) not enough to teach us a lesson? Yes this
fortunately did not take human lives but are we waiting till another Bhopal
happens?
This
incident should be analyzed au contraire to the US which made British Petroleum
pay up $20 billion for the oil spill in the Gulf of Mexico whereas the
insurance was for only $460 million. Eleven people were killed when British
Petroleum's Deepwater Horizon rig exploded in Gulf of Mexico. This is not
the only example though- In the Exxon Valdez oil spill case, where no one died,
$507 million was awarded, the Vioxx drug case, where 47,000 consumers suffered
strokes or death, $4.85 billion was paid on an average of $103,000 per plaintiff,
in asbestos litigation, jury verdicts range anywhere from $1 million to $20
million in compensation per person.
Another
recent incident - Chlorine Gas Leakage from cylinders lying in an unused
contained yard in the Mumbai Port led to deaths and sickness. It was a totally
avoidable disaster which reflects the callousness of the port authorities. It
is a clear case of criminal negligence to allow dangerous chemicals and gases
to lie in Port Areas. The newspapers sadly but truly quoted: As is the usual
pattern, don’t expect and prosecution or punishment of guilty officials.
In
dam projects like the Sardar sarovar dam, Narmada sagar projects- environmental
assessment was not done to start with leading to host of bureaucratic
complexities, legal mishaps and protests most importantly common man suffering
at the end. The study of 300 projects by the Expert Committee on River Valley projects
which found that 89% of them violated the guidelines laid down by the Ministry
of Environment. Apart from the major apparent disasters there are many small
steps taken every minute by many industries big or small, local or international
which may snowball into major calamities.
A
glimpse at India’s environmental legislation-
Constitutional
provisions- Article 48-A makes the state responsible to
protect and improve environment, likewise article 51-A(g) states that it
is the duty of every citizen of India to protect and improve the natural
environment.
The
denial of the right to a healthy, clean and pollution free environment has been
recognized by our apex court as a violation of the right to equality (article
14), right to freedom (article 19) and right to life(article 21). In the landmark
case of Vellore citizens welfare forum v U.O.I , 1996 the SC evolved the
principle of ‘sustainable development’ and held that ‘precautionary principle’
and the ‘polluter pays’ principle, are essential features of ‘sustainable
development’. In D.S. Rana v Ahmadabad municipal corporation and
subsequently in Abhilash textile v Rajkot municipal corporation it was
held that polluting industries cannot resort to article 19(1) (g) contending
restriction to be violative to freedom of trade and business guaranteed under
this article as it is subject to reasonable restriction which may be placed in
interest of general public as provided in sub clause (6) of article 19 itself.
IPC also declares acts and omissions affecting public health and safety as
offences under S.268, 269,277,278,284.
Water
(Prevention and Control of Pollution) Act, 1974
- to restore wholesomeness of water, and to ensure that domestic and industrial
effluents are not discharged into watercourses without adequate treatment.
Air
(Prevention and Control of Pollution) Act, 1981- This
act provides for the abatement, control and prevention of air pollution,
establishment of central board and state boards for this purpose. It lays down
standards to maintain quality of air.
In the year 1978, Environmental Impact Assessment (EIA) study was
commenced so as to comply with the directive of the Planning Commission for
Government of India. EIA studies became mandatory in India with effect from
1994 for selected infrastructure projects which require forest or wildlife
clearance. In 1997, the EIA regulation underwent an amendment which made public
hearing mandatory in the interest of the citizens. This particular regulation
also demands a No Objection Certificate (NOC) from the respective State
Pollution Boards under the Water Act and the Air Act. The environmental
clearance granted by this process has a validity of 5 years of operation with
effect from the day of the grant. Apart from specific projects there was no
requirement for site assessment in the said EIA Notification and even the
Factories Act does not provide for site selection but in 1987, the GoI issued
environmental guidelines specifically for thermal power plants about minimum
distance from cities, from riverine systems etc. But unfortunately they remained
mere guidelines and the Government has done little to enforce it legally. Public hearing has also been made compulsory by
most of the multilateral and bilateral aid agencies prior to sanctioning funds
for any projects. However, public hearings are meaningless without information
on project details and its implications hence the Right to Information act is
significant.
Before
the EPA, there was a total lack of any enactment dealing with hazardous
substances. The Water act and the Air act also did not have effective penal
provisions. Another inadequacy was there was complete lack of co-ordination
among the authorities on the existing enactments. There was no legislation
dealing with allowable limits of pollutants.
Another reason for introducing EPA was the Stockholm conference
in which was introduced the Magna Carta on human environment, which
suggested that the governments must enact necessary legislations to protect and
improve the flora and fauna, non-renewable resources, wild life and human
health. Current problem is multiplicity
of regulatory agencies.
Environment
Protection Act, 1986 - It takes a wholesome view of
environmental pollution. It includes a citizens’ suit provision under S.19 (b)
and a provision under S.5 authorizing the Central Government to issue direct
orders to protect the environment. Rule 5 of the Environment (Protection)
Rules, 1989, empowers the Central Government to prohibit or restrict the
location of any industry and the conduct of certain activities in notified
areas. The power to issue directions under S.5 has also been delegated to some
state governments and the power of entry and the right to take samples has been
delegated to various officers. The
problem which arises here is the blame shift game between the Centre and the
States.
There
is no doubt that EPA is an umbrella legislation, but it has certain shortcomings- its area of operation is
narrow, it has weak citizens suit provision, weak tax provision relating to fixing of
liability of corporate officials. There is no provision for an individual’s
right to sue the defaulter for damages. Even 25 years after EPA was implemented
we as a nation are still taking baby steps towards the problem of climate
change and protection of biodiversity. In S.15 of EPA there has been a provision for
punishment for every type of contravention under the act but there is no
minimum punishment provided. S.19(b) of EPA requires every person who intends
to file a case under the act, to give a 60 days ‘notice this is not a practical
provision because the concerned person has to wait helplessly; also action can
be filed only by the central government. This denies the right to the public
for participation and rejection of the principle of participatory justice.
The Public Liability
Insurance Act, 1991-
to provide insurance for immediate relief to the
persons affected by accidents
occurring while handling any hazardous substances.
The
MoEF published Environment (Protection) Rules establishing
industry-based standards for certain types of effluent discharge and
environmental audit was introduced in the same in 1992. It recognizes
self-regulation among the industry and makes submission of an audit statement
compulsory to be filed every year to the State Pollution Control Board. Greater
industry compliance with environmental laws, disclosure of data on waste
generation, adoption of clean technology for pollution prevention, waste minimization,
recycling and utilization, arrangement for off-site disposal and revealing
of data on consumption of water and raw
materials are some of the remarkable improvements resulting from this audit
regime.
The National Environment Tribunal Act, 1995- to provide
for strict liability for damages arising out of any accident occurring while handling any hazardous substances and for the
Establishment of a National
Environment Tribunal for effective and expeditious disposal of cases arising
from such accident.
The Hazardous Wastes (Management & Handling)
Rules, 1989 - to look after the storage, treatment and
disposal of hazardous waste in order to control the indiscriminate dumping of
such waste generated from different industries.
The Environmental Clearance of Project Notification,
1994- to impose restrictions on the expansion and
modernization of any activity or new projects being undertaken in any part of
India unless environmental clearance has been accorded by the Central
Government or the State Government.
The Manufacture, Storage and Import of Hazardous Chemicals, Rules, 1989- to control the
import of hazardous chemicals, which are not permitted to import under this Rule.
The Chemical Accidents (Emergency Planning,
Preparedness & Response) Rules, 1996 - to
compliment the set of rules of
accident prevention and preparedness notified under the EPA.
Disaster
Management Act, 2005 seeks to
institutionalise the mechanisms at the national, state and district levels to
plan, prepare and ensure a swift response to both natural calamities and
man-made disasters/accidents. It also mandates formation of national, state and
district disaster management bodies.
Indian
Easements Act, 1882- recognizes the right of a riparian
owner (someone who owns the land adjoining a river or water stream) to
unpolluted waters. S.7 of the Easement Act provides that every riparian owner
has the right to the continued flow of the waters of a natural stream in its
natural condition without destruction or unreasonable pollution.
In his article dated 30th
December Samar Halarnkar of HT observed very aptly: India has some of the
world’s best environmental laws but they have been ignored or undermined for
commercial and personal profit. For the first time in decades Jairam Ramesh
is showing firm commitment, balancing the preservation of India’s ecological
wealth with the growing need to find minerals and build the infrastructure
needed for the new India. The nation cannot be recreated and sustain its
growing economy in a time of climate change if it fails to preserve its natural
treasury.
Coming to the larger question of ‘Ecocolonialism’; it is reckless resource
exploitation, basically export of environmental hazard to third world countries
by MNCs. Considering the economic gains, employment opportunities and off
course the hidden wealth pipelines involved exclusively for the netas and the babus,
exposure to toxic wastes is accepted as a necessary opportunity cost. In order
to stop exploitation of countries with laxer laws, both preventive and punitive
laws should be made applicable to all countries as far as environmental damage
is concerned. MNCs have to invest in preventive technology and also
influence the environmental management of their suppliers, affiliates, and
competitors both by setting an example and by introducing their own
environmental standards, they may provide local engineers and technical staff
with training in pollution prevention technologies and practices and waste
minimization. There is also the problem of MNCs subcontracting
production and acting as global distributors, this decoupling gives them an
excuse to put their hands up and not take responsibility for environmental
damage caused by such factories that manufacture parts of their products. But
although MNCs are always charged with using developing countries as pollution
dumps they also now are harbingers of a revolution in clean and environmentally
sound technology and management but to get such spill over benefits the
necessary infrastructure must be available. The important factors are their
environmental management, the presence of sunk costs, host country environmental
regulations and enforcement, the availability of pollution prevention
technologies and their own global environmental policies. Social and citizen
groups opposing big infrastructure and industrial projects are often accused of
Not-in-My-Backyard (NIMBY) syndrome (used pejoratively to
describe opposition by residents to a proposal for a new development close to
them.); by the corporations with distant investors but they rather hold strong
principles of local sovereignty and strive to prevent the ruthless
environmental exploitation. In most cases, environmental degradation leads to
human rights transgressions. Activities like toxic waste dumping, natural
resource exploitation by state and MNCs, land acquisition; large scale economic
development projects are rife with human rights abuse.
Positive developments- With Parliament
in the hands of the corporate, and with democracy not looking beyond industry a
ray of hope surely is our current environment minister Mr. Jairam Ramesh. An
ardent environmentalist he has aggressively pursued the green agenda, so much
so that he has made enemies in his own party’s cabinet. In a recent interview
he has raised hopes for Mumbai promising that the CRZ 2011 will make slum
re-development easier and also allow for preservation of open spaces. He has
stopped a number of projects including the recent Lavasa project, the Renuka
Dam project which meant chopping 1,70,000 trees, Pollavaram project, Vedanta project. He proudly and rightly so declares that the
four laws that form the pillars of his ministry are Forest Conservation Act
1980, Environmental Protection Act 1986, Forest Rights Act 2006 and CRZ
notification of 1991 and that any project that violates any of these laws will
attract action from his ministry. The withdrawal of Vedanta Bauxite Mining
Project in Orissa was also because of staunch and vociferous public voice
against it. People are getting increasingly aware and voicing their opinions
through print media and also NGOs like Greenpeace which frequently bring out
petitions asking for public support. At least in that sense spirit of democracy
is still alive.
On
October 19, 2010 India launched a “green” court to make polluters pay
damages. Quoting Mr. Jairam Ramesh,
“India is only the third country in the world after Australia and New Zealand
to set up such a tribunal. This is the first body of its kind in India to apply
principle of sustainable development Anybody and everybody can approach the tribunal
to claim civil damages arising out of inadequate implementation of environment
laws." Another positive development is that the government will put in
place a set of new environment protection guidelines as part of its proposed shale
gas policy, which companies venturing into exploration of this new fuel
source in India will have to compulsorily follow. The proposed guidelines are
likely to force oil explorers to disclose the chemicals they use, which are
increasingly being linked to groundwater contamination globally. As far as
self-regulation by MNCs is concerned a change of view is required, rather than
adopting different norms for different countries the earth as a whole
must be considered one’s home only then would each industry become responsible.
Apparent solutions- Fast track
courts are needed to tackle complaints under EPA. In the oleum gas leak case of
Shriram industries, the SC has suggested that such cases must be decided within
three months but sadly that’s not the case. The concept of personal
liability of the defaulting industrialist must be incorporated in the act.
The enforcement mechanism needs to be strengthened. There can be no panacea for
environmental protection but law should be strengthened by providing for
stringent penal provisions to act as a deterrent to those who endanger
environment thus stomping on basic human rights. There should provisions for
regulatory agencies to work in sync. The legitimate weapon of writs is bestowed
on us by article 32 and article 226 of the constitution of India, so waking up
the judiciary from its slumber is also partly in our hands. Tapping the carbon
credit market would help us in multiple ways: progress of clean development
mechanisms, reduction in pollution and monetary gains. A positive step in this
direction is National Clean Energy Fund (NCEF) for funding research and
innovative projects in clean energy technology.
Concluding with words of Gandhi:
"The reforms required are more from within than from without. A perfect
Constitution super-imposed upon a rotten internal condition will be like a
whited sepulchre (Young India, June 24, 1926)." This aptly summarizes
condition of our environmental legislation.
Our environmental laws have seen an evolutionary growth along with increase
in industrialization but the time has come to see not an evolutionary but a
revolutionary change in both preventive and penal laws only then can we prevent
future union carbides from happening and getting away scot-free.
REFERENCES- Combat
Law magazine e-copy,
Minister of
Environment & Forest (http://moef.nic.in/index.php)
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