Author Name:   snehakarle

Analysis of current environmental laws on the backdrop of the Bhopal gas tragedy and the road ahead.

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)

The  author can be reached at: snehakarle@legalserviceindia.com

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