'The taxpayer is going to pay'

Interview with H. Rajan Sharma, counsel for gas victims.

H. Rajan Sharma, counsel for the gas victims in the civil suit in the U.S. District Court of New York claiming damages for the environmental contamination in Bhopal, sent the following responses to V. Venkatesan through e-mail:

How will this clean up impact on the ongoing leagl process in the U.S., in which the Indian government last year gave a no-objection certificate to make Dow Chemical pay for the clean up?

This depends on exactly what will be the scope and nature of the cleanup. If what is contemplated is limited to temporary containment measures to prevent further pollution, then we may be able to avert an adverse impact on the New York litigation. Even so, it will be critical for the Government of India or Madhya Pradesh to clarify, for the benefit of the U.S. court, that these are temporary containment measures, pending a proper and comprehensive environmental remediation that should be paid for and undertaken by Union Carbide.

On the other hand, if the Indian authorities or courts decide that the cleanup is or should be deemed a complete remediation, paid for by the Indian taxpayer instead of the polluter, then there is little doubt that it will have a profoundly negative effect on the New York litigation. Union Carbide will almost certainly claim that whatever needed to be done at the site has already been done and paid for by Indian governmental authorities. This will happen regardless of whether or not the cleanup is actually proper or comprehensive in an environmental sense, and even if it fails to satisfy the minimum international or domestic standards. For example, if the cleanup essentially consists of dumping all the thousands of tonnes of above-ground wastes into a landfill, and the M.P. High Court or the Indian government deem this to be a "complete environmental remediation", the U.S. court is likely to defer to their statement, even though this would almost certainly exacerbate the pollution problem as regards water supplies and would not be considered a remediation of any kind by acknowledged experts in the field. Union Carbide will simply repeat its familiar litany that "India has chosen to deal with its own environmental problem in its own way. Why should U.S. courts interfere?"

Activities by the Indian government or the M.P. High Court could, therefore, have the perverse effect of completely immunizing Union Carbide for liability for the severe environmental problem it has caused in Bhopal. Needless to say, the cleanup is also wholly inconsistent with the formal position submitted by the Government of India and Madhya Pradesh in communications to the U.S. court where both these governmental authorities represented that they would not incur any costs for the cleanup and all liability should be borne by Union Carbide as the polluter. The present cleanup will make the governments of India and M.PM. appear not only inconsistent, but ridiculous in the eyes of U.S. courts and others who have been following this case as an important precedent.

Once the factory site is cleaned up, do you think the Indian authorities will be able to make Dow pay up?

No. Legally speaking, there is absolutely no possibility that the Indian authorities will be able to make Dow or Union Carbide accept any liability or costs for cleanup activities at the Bhopal plant site either now or in the future. There are a number of reasons for this. Both Dow Chemical and Union Carbide have taken the position that they are not subject to the jurisdiction of India's courts. Nor have they formally entered an appearance in the M High Court, except that Dow's lawyers have conditionally appeared only to contest the court's jurisdiction.

There is no mechanism for enforcing any resulting judgment for cleanup costs (temporary containment or otherwise) by an Indian court against Dow or Carbide in the United States. Since both companies are headquartered there, an Indian judgment would have to be enforced against them in the U.S. courts. Under the existing law in the U.S., Union Carbide and Dow Chemical would be able to resist successfully 'recognition' and enforcement of any Indian judgment on a variety of grounds including but not limited to: (1) lack of personal jurisdiction; (2) lack of subject-matter jurisdiction; (3) lack of procedural or substantive due process in the proceedings that resulted in the judgment; and (4) the judgment is contrary to U.S. public policy. Of course, no one can predict the outcome of any litigation with absolute certainty but I think it is a virtual certainty that U.S. courts would decline to enforce an Indian judgment rendered against Carbide or Dow on one or more of these grounds, especially given the somewhat legally "unique" aspects of the "public interest litigation" device as it has evolved in India.

The only option that the Indian authorities would have in terms of recovering costs is to commence a fresh lawsuit in the U.S. courts against Dow and/or Carbide for the underlying environmental liability. Given the rules of locus standi and "real party in interest", my clients cannot assert claims on behalf of either the Union of India or MP State for recovery of those costs. In any event, the communication by Indian authorities to the U.S. courts expressly prohibited them from doing so. I suppose the Indian authorities could intervene formally as a party in our pending New York litigation but they have ruled out that possibility in their communications to the U.S. court as well. That leaves them with only one option: starting a new lawsuit and duplicating our efforts over the past four years or so. That seems unlikely, to say the least.

For all of those reasons, I think it would be next to impossible for the Indian authorities to recover any costs for cleanup from Dow or Union Carbide. Those costs will end up being borne by the Indian taxpayer.