`Some reason to be cautiously optimistic'

BY SPECIAL ARRANGEMENT

Interview with H. Rajan Sharma, lawyer of the survivors.

H. Rajan Sharma, an international lawyer and author currently based in New York, represents the survivors of the Bhopal gas disaster in courts in the United States. He obtained his Juris Doctor degree from the American University, Washington D.C. He has written extensively on international law and politics. His most recent article, `Dispute Resolution Mechanisms in International Environmental & Investment Disputes' was published by the Permanent Court of Arbitration at The Hague and included in a collection of The Peace Palace Papers by the International Bureau of the Permanent Court of Arbitration. Sharma has been profiled by The American Lawyer magazine and has been nominated for inclusion in `The Best Lawyers in America'. In an e-mail interview to V. Venkatesan, he answers questions on the Appeals Court's decision.

What makes the Appeals Court decision significant?

Never before in judicial history has a court sitting in one country ordered a multinational corporation to go some 8,000 miles [12,800 km] to clean up and remediate an environmental mess in another country literally halfway around the world. It is unprecedented. And that the precedent should be set in a case about Union Carbide's conduct in Bhopal certainly seems more than appropriate.

What is the next stage in the progress of this case? Are you optimistic about the outcome?

The case will go back before the District Court. It is, however, virtually impossible to predict the outcome or to speculate how the District Court will approach these issues. On the other hand, we believe that the legal effect of the Appeals Court rulings is very much in favour of the Bhopal victims and survivors. To that extent, I believe there is some reason to be cautiously optimistic.

Why is it important that Union Carbide Corporation (UCC) assumes responsibility for the clean-up of the site itself? What are the specific implications of this?

It is extremely important that Union Carbide be made to pay for and undertake the clean-up of the UCIL [Union Carbide India Limited] plant site. To understand this, one has to appreciate the hundreds of thousands of metric tons [tonnes] of extremely toxic waste and hazardous chemicals that have been buried in over 11 waste pits on the site, the landfill for the three solar evaporation ponds which contain several thousand metric tons of waste buried under the surface with just a thin plastic liner, and the other asbestos wall cladding, tons of crude Sevin, alpha naphthol and Sevin tarry residue, etc., on the site. These materials are gradually leaching into the groundwater aquifer beneath the surface of the plant and spreading through the drinking water supply of at least 10 neighbourhoods surrounding the factory. Some of these toxic and carcinogenic chemicals, scientifically determined in sample tests of the water supply, have been found to be at extremely high levels in the drinking water of these areas.

Tests conducted by the University of Exeter laboratories in the United Kingdom found, for example, that one carcinogenic chemical was present in the drinking water at nearly 1,705 times the maximum level permitted by the World Health Organisation. Other studies have found these chemicals in the breast milk of women living in the affected areas. Here, you have the possibility of another "slow motion Bhopal", where thousands of people over several generations may be injured or even killed by the underground contamination spreading through the water supplies of the area. In fact, although more studies are needed to determine the precise extent of the groundwater contamination, it is at least conceivable that eventually such high levels of contamination might spread to the drinking water supply of Bhopal as a whole.

The Indian government and the M.P. government now have an opportunity to redeem themselves by preventing this "slow motion Bhopal". On a more practical note, the M.P. government and the Indian government have been aware of this problem for some time but have been unable to address it properly. The M.P. government has asked the company that purchased UCIL to clean up the plant site and remove the source of the contamination. That company, Eveready Industries India Limited, has expressly and publicly refused to do so, claiming that the plant site was surrendered to the M.P. authorities in 1998 and it has no further responsibilities regarding the plant.

The Indian government has been trying to figure out how to handle the large-scale and massive nature of the task of properly remediating the plant site but is daunted by the complexity, magnitude and expense of the task. At one point, I believe they asked the Indian Department of Defence to take a look at the problem. But the problem is simply too huge and complex to be properly handled by government agencies and too expensive for them to contract it out to foreign companies. The Indian Supreme Court too has looked at the matter and asked that the international principle of "polluter pays" should be applied to the issue. Moreover, there is absolutely no reason why Indian taxpayers and the Indian public should be made to pay hundreds and hundreds of crores to clean up the plant site and the off-site contamination caused by Union Carbide, a company that has already done such egregious harm to the country and its people.

The importance of making Carbide responsible for clean-up is, in other words, a most basic proposition of justice: that this notorious corporate criminal should be held responsible for cleaning up the environmental mess that it has made in Bhopal, instead of being allowed to "socialise" this cost to the Indian public and taxpayer while it manages to "privatise" the profits from its unlawful conduct in the form of the sale of UCIL and other plant assets. From 1989 onwards, Union Carbide was actively involved with the Bhopal plant site in terms of what it called its "Bhopal Site Rehabilitation & Asset Recovery Project." Clearly, the emphasis was on "asset recovery" because, by its own admission in our case, Union Carbide has publicly conceded that it basically abandoned the plant site and any proposed remediation efforts in 1994 when the Indian Supreme Court allowed it to sell its shares in UCIL.

How will the submissions made by the Government of India and the Madhya Pradesh government before the District Court help the plaintiffs?

We do intend to approach them. All the insurmountable expenses and difficulties faced by the Indian government or the M.P. government regarding both on-site and off-site remediation can be avoided by the simple expedient of making just one submission to the U.S. court stating that they would be receptive to an order from a U.S. court requiring Carbide to undertake injunctive relief. There is simply no reason why the Indian or M.P. government should hesitate to do so. They are not required to become parties to the case or do anything that would adversely affect or even inconvenience them. It would be astonishing if the Government of India or the M.P. government would fail to avail itself of this opportunity, especially since they would benefit from it almost as much as the Bhopal survivors.

How did the Appeals Court address the District Court's argument that India's interests will get impugned by any grant of equitable relief from U.S. courts?

The District Court ruled that any grant of equitable relief will automatically interfere with India's interests in the context of this case (or, indeed, any other case). Simply put, the District Court held that any grant of such equitable relief by the U.S. courts for remediation affecting property located outside the U.S. would automatically and inevitably be inappropriate because it would interfere with or impugn a foreign sovereign's interests. This was the settled proposition of U.S. law that we were arguing against with no actual precedents in our favour because it has never been done before. Yet, our arguments prevailed over the settled, antiquated rule.

The Appeals Court said: "There may be circumstances in which it is appropriate for a court to grant injunctive relief with respect to the remediation of an environmental problem in a foreign country." It is not very dramatic-sounding, but the legal significance of the ruling is, I believe, nothing less than historic.