On Monday June 7 a court in India convicted eight former senior executives of United Carbide India Limited (Union Carbide’s Indian subsidiary) of criminal charges of causing death by negligence for the December 1984 chemical release in Bhopal that killed thousands. The defendants, one of whom has died, are all citizens of India. They were sentenced to the maximum two-year sentence and fined 100,000 rupees ($2,130) each. Union Carbide India Limited also was convicted and fined 500,000 rupees ($10,650). Advocates for the victims criticized the charges, which usually are used in hit-and-run vehicle accidents, as too lax. Satinath Sarangi, a victims’ advocated said the verdict was akin to treating “the world’s worst industrial disaster” as “a traffic accident.” Lydia Polgren & Hari Kumar, 8 Former Executives Guilty in ’84 Bhopal Chemical Leak, N.Y. Times, June 8, 2010. The defendants initially had been charged with culpable homicide, which carries a maximum 10-year sentence, but the charges had been reduced by the Supreme Court of India.
One obvious question is why it took so long to complete these criminal prosecutions. While the Indian legal system is notoriously slow in handling criminal cases, having these verdicts handed down more than a quarter century after the December 1984 disaster seems an extreme case of justice delayed. When the Supreme Court of India in February 1989 directed a $470 million settlement between Union Carbide and the government of India, it quashed all other proceedings relating to the disaster. It was not until April 1992 that India’s Central Bureau of Investigation (CBI) persuaded the Supreme Court to permit the criminal prosecutions. In September 1993 the government of India unsuccessfully sought the extradition from the United States of Warren M. Anderson, the American chairman of Union Carbide at the time of the tragedy. He is now considered a fugitive from justice in India. The criminal prosecution of the Indian executives was stayed from April 1993 to August 1995 as defense lawyers sought to have the Supreme Court reduce the charges. The Supreme Court reduced the charges in September 1996 following another defense petition. After presenting 178 witnesses and introducing 3009 exhibits, the prosecution finished its initial case on December 20, 2005. Defense witnesses testified from May 8, 2005 to December 22, 2007. Disputes over the recording of testimony by eight defense witnesses then continued until January 2010, when closing arguments commenced. Because the convictions will be appealed, it still may still be years before the any of the defendants are jailed. One of the convicted defendants, Keshub Mahindra, is a prominent industrialist who is now chairman of the India’s top utility vehicle and tractor manufacturing company.
The Bhopal verdicts come a a particularly sensitive time because the Indian Parliament currently is debating legislation to limit the liability of foreign companies who invest in Indian nuclear powerplants. Last month the Parliament passed the National Green Tribunal legislation that will allow specialized environmental courts to be established in India. Indian Environment Minister Jairam Ramesh has announced that the first “Green Tribunal” will be established in Bhopal. The Ministry also is considering a proposal to establish a National Environment Protection Authority to help enforce India’s environmental laws (see http://moef.nic.in/downloads/home/NEPA-Discussion-Paper.pdf).
On Thursday the U.S. Senate by a vote of 53-47 defeated S.J. 26, an attempt to block EPA’s December 2009 “endangerment” finding for emissions of greenhouse gases (GHG) under the Clean Air Act. Six Democratic Senators (Bayh, Lincoln, Landrieu, Ben Nelson, Pryor, Rockefeller) joined all 41 Republicans in voting for the resolution to invoke the Congressional Review Act (CRA). The other 51 Democrats and two Independents voted against. The CRA, enacted in 1996 in the wake of the Republican takeover of Congress, creates a special fast-track procedure for an up-or-down vote on a joint resolution blocking agency regulations. Unlike the legislative veto that was declared unconstitutional by the U.S. Supreme Court in INS v. Chadha in 1983, the CRA requires that the disapproval resolution be passed by a majority in each house of Congress and signed by the President or enacted by two-thirds majorities of each House over his veto. On Tuesday senior officials of the Obama administration indicated that if the resolution passed both houses of Congress they were likely to recommend that President Obama veto it. Thus, it was fairly clear that there was no likelihood that the effort to block the EPA regulations would be successful. In fact in its 14-year history the CRA has been used only once to veto a regulation - OSHA’s ergonomics rule in March 2001 - and that occurred only because there had just been a change in administration and new President George W. Bush eagerly signed the disapproval resolution.
The CRA provides that if a regulation is vetoed the agency cannot adopt a rule that is “substantially the same” without first getting express authority from Congress to do so. Thus, had the “endangerment” finding been vetoed through the CRA, it effectively would have nullified the ability of EPA to regulate GHG emissions following the Supreme Court’s landmark Massachusetts v. EPA decision upholding EPA’s authority to regulate them under the Clean Air Act. While EPA’s “endangerment” finding is being challenged in court, the defeat of the disapproval resolution will have no legal impact on that litigation. The CRA provides that if Congress fails to disapprove a rule “no court or agency may infer any intent of the Congress from any action or inaction of the Congress with respect to such rule.” 5 U.S.C. §801(g).
As oil continues to spill into the Gulf of Mexico from the Deepwater Horizon blowout, estimates of the size of the spill continue to be debated. One confusing aspect of the numbers game is that sometimes the estimates are given in barrels of oil and other times in gallons (those who want to minimize the size of the disaster seem to favor the former). To convert the two it is useful to remember that there are 42 gallons in each barrel of oil. The oil industry notes that there are approximately 1,500 natural “seeps” that leak an estimated 15 million gallons of oil per year from the Gulf floor. However, this is less than 360,000 barrels per year and less than 1,000 barrels per day, a tiny amount compared to that released by the Deepwater Horizon blowout which has been leaking up to 50,000 barrels (2.1 million gallons) per day.
My wife Barbara and I would like to thank everyone for their tremendous outpouring of love and support for her battle against cancer. She will have surgery on June 15 followed by chemotherapy treatment. In order to facilitate keeping friends and family informed about the progress of her treatment we have set up a website at: http://www.caringbridge.org/visit/barbarapercival. We will be posting updates on the website following her surgery. Last Tuesday Barbara and I went to Nationals Park to watch the major league debut of Stephen Strasburg, the Washington Nationals highly-touted new pitcher. He actually lived up to all the hype, setting a new single-game record for strikeouts (14) by a Nationals pitcher. Since our seats are only six rows behind the visitors’ dugout, we had a particularly enjoyable view of the bewildered Pirate batters as they returned to the dugout after striking out.
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