A leading think-tank believes $50m should be spent on clean-up of 1984 chemical disaster.
The international fight for justice by survivors of the 1984 Bhopal gas disaster in India has been a rollercoaster ride of delay, disappointment and few victories for families of the tens of thousands of people who died in one of the world’s worst industrial disasters.
However, three recent major legal and environmental developments suggest that the fight following the catastrophe is far from over.
The Indian government earmarked $50m for the recovery, which could be used to implement an ambitious five-year action plan to finally clean up the toxic factory site and surrounding area. The poisoned land, where children still play and animals graze in ignorance, contaminates water sources – causing serious health problems for nearby communities.
The new plan by the Centre for Science and Environment (CSE), a New Delhi-based public interest research group whose funders include the Indian government and the European Commission, is based on a meta-analysis of 15 existing studies to assess soil and groundwater contamination in and around the former Union Carbide factory site.
More than 350 tonnes of surface chemical waste, with thousands more buried underground, have been left unsecured since the gas disaster, causing widespread contamination, according to CSE.
Preliminary epidemiological data from 100,000 patients at the Sambhavna clinic in Bhopal suggests birth defects are up to seven times as frequent among those affected by contamination compared to the general population.
The CSE action plan emerged in the last two weeks after roundtable discussions that brought together senior government officials, scientists and survivor groups for the first time. Its supporters say it offers a practical, evidence-based way forward after years of legal wrangling, indecision and inaction.
Immediate proposals include securing the site to prevent further human contact and stopping the annual spread of surface chemicals during the monsoon. Longer-term initiatives include excavation, recovery and safe disposal of all the waste, dismantling the machinery and factory, and developing a centre of excellence and memorial in its place.
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Chandra Bhushan, CSE deputy director general, said the central government had set aside 3.1bn rupees ($50m): “We won’t wait for Dow [Chemical Company] to pay for the clean-up.”
Despite the input of government scientists, the CSE has no authority to enforce its recommendations and, crucially, cannot decide liability, a hotly contested issue both morally and legally.
The Madhya Pradesh state government, which now owns the Union Carbide site, dismissed the CSE report. “Who are they to give us advice?” said Babulal Gaur, Minister for Bhopal Gas Relief and Rehabilitation. He said the state would only be directed by the courts. There are plans afoot to present the report to the Supreme Court to order implementation.
The use of taxpayer money is contested by survivors’ groups fighting to make US-based Union Carbide Corporation (UCC) – which was the controlling shareholder of Union Carbide India in 1984 – and the Dow Chemical Company, which bought UCC in 2001, pay for the environmental damage and clean-up.
Survivors, however, suffered a huge set-back in June when a legal battle to hold UCC directly and indirectly responsible for the environmental damage and ill health caused by the contamination was dismissed by the US Court of Appeal on grounds ofinsufficient merit.
The case was an important test for foreign plaintiffs seeking to enforce legal responsibility for environmental harms committed overseas by US-based multinational companies.
Louise Christian, a British human rights lawyer, said: “The Appeal Court has ignored compelling evidence about the central role played by UCC.” She said company documents showed that “UCC failed to give advice which would have ensured the gas leak did not happen, and also prevented the contamination which has poisoned the drinking water around the plant”.
Christian added: “Those who run multinational corporations should not be allowed to escape liability for grievous harm by creating complex corporate structures and hiding behind them.”
Dow and UCC remain named respondents in a case in the Madhya Pradesh High Court (2004), which is seeking rehabilitation of the abandoned factory site. But the US judgment casts serious doubt on whether any financial liability determined by courts in India could ever be enforced in the US, where the two companies are registered.
In stark contrast, the survivors received a boost in a culpable homicide criminal case against UCC that has been running for 21 years in the company’s absence. The Chief Judicial Magistrate’s Court in Bhopal ruled that Dow must explain why its wholly owned subsidiary, UCC, has repeatedly ignored court summonses.
The criminal charges date back to December 1987, when UCC and its former CEO Warren Anderson were among several foreigners charged with “culpable homicide not amounting to murder” by India’s Interpol agency, the Central Bureau of Investigation. Numerous summonses and arrest warrants ordering their appearance in court to face the charges have been ignored.
Dow, a controversial sponsor of the London 2012 Olympic and Paralympic Games, insists that it bears no responsibility or liability for Bhopal as it acquired UCC 16 years after the disaster and that the two companies are distinct legal entities.
‘Absconders from justice’
Audrey Gaughran, Director of Global Issues at Amnesty International, said: “Dow has always tried to claim it has nothing to do with UCC’s liability for Bhopal, but the court has made it clear it has a responsibility to ensure UCC faces the outstanding charges against it. Dow can no longer turn its back on the tens of thousands still suffering in Bhopal.”
UCC and Anderson were declared “absconders from justice” by the Bhopal Chief Judicial Magistrate court in 1992. The first extradition request for Warren Anderson, who is now in his 90s, by the Indian government was made to the Americans in 2003.
This was rejected by the US on technical grounds.
|Those who continue to try and attach this issue are misguided and are misrepresenting the facts regarding Dow, as we never owned or operated the facility in Bhopal.|
– Scott Wheeler, Dow spokesman
The latest extradition request was made in 2011 as part of the Indian government’s response to fury over the lenient sentences given to seven former Union Carbide India employees. The seven appealed the two-year sentences and have yet to serve a day in jail.
More than two years later, the US government is apparently still considering the latest request – a sharp contrast to its own expectations of countries like Hong Kong and Russia to act immediately on the extradition request for whistleblower Edward Snowden.
The summons by the Bhopal Court means Dow must explain why it, the parent company, has failed to ensure UCC’s attendance for the criminal trial. It comes eight years after the “Show Cause” notice was first issued, but was stayed after a legal challenge by Dow’s Indian subsidiary.
The implications for Dow, which could still appeal the summons at the Supreme Court, are potentially serious. At the time of the merger, Dow made no reference to the pending charges in filings with regulatory bodies.
But if the criminal case against UCC finally takes place, and if it loses, then Dow could be ultimately responsible for any fines levied by the court.
Tim Edwards, from Bhopal Medical Appeal, said Dow “could potentially face billions of dollars of damages in Bhopal, which could have a catastrophic impact upon company shares and dividends”.
Scott Wheeler, a Dow spokesman, said: “Those who continue to try and attach this issue are misguided and are misrepresenting the facts regarding Dow, as we never owned or operated the facility in Bhopal.”
Almost three decades after the world’s worst industrial disaster, which killed between 15-25,000 people, there is still little common ground between the survivor groups and those alleged to be responsible.
Even the $470m settlement paid by UCC and Union Carbide India in 1989 is now being challenged in the Supreme Court as “unjust”. Both UCC and Dow are vigorously contesting the case. This fight, campaigners say, is long from over.