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8 Are Guilty After 25 Years: Legal Failure in Bhopal Bodes Poorly for Corporate Accountability in BP Oil Disaster
Since April 20, people around the world have watched in horror as BP scrambles unsuccessfully to seal their deepwater oil gusher. While the technological responses to the disaster have been tragicomic, the political response has been a chorus of "lessons learned" delivered in tones alternately righteous (Obama), bumbling (the EPA), and evasive (BP). As BP chairman Lamar McKay demurred in testimony last month, "I think we're learning right now as we go." News from central India this morning, however, ought to remind everyone how disingenuous this dissembling is.
Today, an Indian judge finally handed down a guilty verdict in the criminal trial against defendants charged with responsibility for the 1984 Bhopal Gas disaster. The trial lasted 23 years, called 178 witnesses, and exhibited 3008 documents. "The world's worst industrial disaster" occurred when an explosion at a Union Carbide Corporation (UCC) pesticide factory in the city of Bhopal choked 500,000 with 40 tons of toxic methyl isocyanate gas. Amnesty International has estimated that 8,000 people died in the immediate aftermath and 20,000 more of complications since. Even if the maximum sentence is applied in however, the guilty executives will only face 2 years in prison.
What does this tardy verdict mean for accountability for the ongoing BP spill? As we consider a fitting punishment for BP, the length of the Bhopal trial should be shocking enough. But even if the executives are indeed punished, it will be at best partial victory, as the convicted only represent a few surviving, now-elderly, representatives of the of UCC's defunct Indian subsidiary. Conspicuously absent is the primary accused, Warren Anderson, UCC's American CEO. In keeping with UCC's top-down managerial style, Anderson had personally signed off on the Bhopal plant's design flaws and safety lapses. Anderson absconded in 1984 from an Indian warrant charging him with culpable homicide in the Bhopal case.
Now in his eighties, Anderson lives in comfortable retirement in Florida. India has requested Anderson's extradition, but the US has declined to produce him. Anderson's success at evading liability is instructive as we watch BP trying to shift blame onto its subcontractors. At a press conference after the gas leak he infamously took "moral, but not legal, responsibility" for Bhopal, a move which has inspired many CEO's in trouble since. He and UCC then, serially, blamed the accident on "Sikh terrorists," the Indian subsidiary, and, finally, a particular, but to date unnamed,"disgruntled employee." This despite a lengthy paper trail of procedural lapses, accidents, and deactivated safety systems at the factory. 25 years ago Bhopal defied risk predictions about the possible scale of industrial disasters. So why in 2009 was the EPA willing to accept at face value BP's assurance that an oil spill at their rig was "unlikely" -- and that even if it happened "no significant adverse effects [were] expected"? Did we learn nothing from Bhopal?
Not exactly: the strong environmental safety legislations passed in the 1980's in fact all followed high-profile disasters. The Comprehensive Environmental Response and Compensation Act (1980) passed after Hooker Chemical's Love Canal disaster in the 1970's. Congress passed the Emergency Planning and Community Right to Know Act (1986), and the Superfund Amendments and Reauthorization Act (1986) following Bhopal. And the Oil Pollution Act (1990), protecting the environment a little (requiring environmental impact statements) and the industry a lot (e.g. the infamous $75 million cap on damages) became law in the wake of the 1989 Exxon-Valdez oil spill.
This Oil Pollution Act was reflective of liberal anxieties about the environment, but also of conservative anxieties about environmentalists. Its passage began a slow unraveling in the US of the 1980's safety gains, reinforced by the sense of impunity that emerged from the legal trials over these disasters. Though Exxon was originally held liable for an unprecedented $5 billion in damages for the Valdez spill, this was reduced through appeal to a mere $507.5 million (hardly a number to make BP, with daily profits of $62 million, quake in its boots). And though no one died in the Exxon spill, this much-reduced award still exceeded the $470 million civil settlement reached in 1990 between India and UCC in an Indian legal system direly unprepared for a tort case of this scale. India had originally filed the Bhopal litigation against UCC in a New York court. Judge Keenan, however, refused the precedent-setting opportunity to try the case under our well-developed tort law system, arguing, despite India's pleas, that to try the case would be a form of "continued imperialism."
Therefore, despite the significant legislation, the failure of the judiciary to respond to disasters with judgments punitive enough to make prevention a more lucrative strategy than remediation began to turn the tide on environmental protection. Emboldened, perhaps, by these signs, Bob Doyle tried (but failed) in 1995, to pass bill S.343, which would have blocked enforcement of environmental safety laws if the costs of pollution clean-up outweighed the estimated benefits in strictly monetary terms. But George W. Bush followed up. Beginning in 2001, Bush gutted many of the protections that had constituted the hard-won lessons of Bhopal. The relationship between the EPA and Big Oil that Obama has called "cozy" is but one example of this of this weakening of environmental laws and institutions.A Bhopal trial in the US could have offered the possibility of real corporate accountability, and the imperative to challenge the received wisdom of "risk management science." Instead, we chose the protection of corporate interests, and the fuzzy math of "environmental impact statements." Based on the evidence, it is to be hoped that these 8 executives will indeed serve some punishment in India for the thousands of deaths that occurred as a result of their negligence. Will there be justice for BP? If our treatment of the Bhopal is any indication, it is unlikely. While the Indian accused await sentencing at long last, we must remember our elderly fugitive Anderson, playing, perhaps, a calm game of golf as he watches BP's oil lap against the Florida shore.
Since this piece was submitted, all 8 executives were sentenced to a 2 year prison term and a fine of approximately $2,100. See http://news.bbc.co.uk/2/hi/south_asia/8725140.stm . The 8 convicted were Keshub Mahindra, the chairman of the Indian arm of the Union Carbide (UCIL); VP Gokhale, managing director; Kishore Kamdar, vice-president; J Mukund, works manager; SP Chowdhury, production manager; KV Shetty, plant superintendent; SI Qureshi, production assistant.