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.

Update:

Since this piece was submitted, all 8 executives were sentenced to a 2 year prison term and a fine of approximately $2,100. See https://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.