Corporate irresponsibility in the aftermath of Bhopal

By Lawrence Landskroner

When the sun rose on December 3, 1984, the city of Bhopal, India, lay in a dense cloud of toxic gas. An overnight leak at the local Union Carbide plant had loosed methyl isocyanate onto the sleeping town. So far, 2,000 people have lost their lives, with more possibly to follow from the long-range effects of the gas. More than 200,000 have suffered injuries from exposure to the gas.

Despite early pledges, Union Carbide has not yet made any serious effort to provide long-term aid to the victims, and the Indian government appears to have abandoned its efforts to compensate the victims and now appears unwilling to pursue an investigation of the tragedy. It appears that Bhopal may be just one more example of international corporate irresponsibility gone unpunished. Bhopal, some said, could not happen here. The recent leak at the Union Carbide plant in Institute, West Virginia, may shed a good deal of doubt on that statement. However, in a sense, an incident like Bhopal is unlikely to happen here. In addition to abundant and cheap labor, corporations like Union Carbide have taken advantage of lax regulations and environmental laws in places like India to produce most of their truly dangerous substances more cheaply and less safely. The United States, prodded by the rising environmental movement of the '60s and 70s, began to pass stricter, more enforceable laws and regulations to prevent leaks such as the one at Bhopal. These regulations were costly to comply with, and it was that cost that made many corporations look elsewhere for places to produce their products. Less developed Third World countries like India, eager for the jobs and revenue that come with chemical plants, welcome foreign companies with open arms, or, more precisely, with cheap labor and minimal environmental and safety regulations.

A prime example of this process is the asbestos production business. Asbestos is a highly toxic product. The inhalation of asbestos fibers is dangerous even on a casual basis. Asbestosis, a disease that eats away at the lungs of its victims, results in a long, slow and painful death and is the normal penalty for asbestos exposure. The combined weight of safety regulations and lawsuits at one point drove Johns Manville, the major asbestos producer, to bankruptcy. Johns Manville has opened a plant in India. Observers there note that the workers are "routinely covered with asbestos dust. Without regulations, those workers in India are in severe danger of permanent damage.

Bhopal and similar incidents are the whirlwind that Third World countries reap from their game of environmental roulette. In Djakarta. Indonesia, over 300 workers at a Union Carbide battery plant suffer kidney damage from the prolonged effects of mercury exposure. Four hundred people were killed in a natural gas explosion in Mexico City last year. And, in Sveso, Italy, the entire town was poisoned by a cloud of dloxin, a proven cancer-causing chemical.

Law regulations in foreign countries lead to problems with goods exported from this country as well. When Triss, a flame retardant used in children's clothing, was banned in this country, the clothing and the chemical were shipped overseas. When the Dalkon shield, a birth control device linked to internal bleeding and infection, was recalled in this country, the maker shipped the product overseas, often to family planning clinics in the poorest sections of Third World countries. Dalkon shields have been linked to many deaths and injuries overseas.

This process, known as "product dumping," is prevalent today with pesticides. A pesticide banned in this country by the government is shipped overseas and sold on a foreign market. The pesticides are then used on products grown overseas. These pesticide-treated crops are often imported to this country and eaten by American consumers. Thus, the American consumer is, thanks to this "circle of poison," in the end the victim of product dumping. Primarily, however, the victims of corporate irresponsibility overseas are the poor in Third World countries. American corporations have the right to earn profits. They have the right to take advantage of the cheap labor and favorable regulations offered by foreign countries. Yet, the result of this hunt for profits is often tragedy--and that tragedy often has no real remedy. Once again, the victims of the Bhopal tragedy are a prime example.

For the victims of Bhopal, there have been to date only tears. The government of India attempted to compensate the victims quickly. The payments were stopped after four days with fewer than 6,000 of the victims receiving compensation. Payments have not been resumed.

The Indian court system also offers little hope to the victims of Bhopal. Many of the victims were rural emigrants who lived in a shanty town adjacent to the Union Carbide plant. They are almost all poor. But in order to sue in Indian courts, the injured person must first be able to afford an attorney. In this country, a lawyer may charge a contingent fee; that is, taking a portion of the recovery as a fee rather than payment up front. In India, contingent fees are illegal. Furthermore, in India, a person must pay a percentage of the claimed recovery into court before bringing a suit. Lawsuits in India traditionally take upwards of ten years to try, and Indian courts are noted for awarding little if any compensation in lawsuits. Thus, the victims of Bhopal have little recourse to the courts or the government of India. It appears that the only true outlet for recovery for Bhopal victims may be American courts in suits against Union Carbide, an American corporation.

It should be pointed out that Indian courts are fairly modern ones. They are built on the long tradition of the English justice system left behind from the colonial era. In other Third World countries, without the English system and less democratic than India, the chances of recovery are less. Thus, in those countries as well, the best outlet for compensation and to enforce corporate responsibility are American courts.

In America, people harmed by the negligence of a corporation have many advantages over their foreign counterparts. First and foremost, access to American courts is considerably more open than access to foreign courts. There is no requirement for a fee based on the percentage of the claim like there is in India. More important, through the contingent fee, the poor, and even the middle class, have access to an attorney. In a country where an attorney charges upwards of $100 an hour, the contingent fee opens access to the courts that would otherwise be beyond the reach of all but the richest people. Perhaps even more important, the American system has a mechanism in place to help enforce corporate responsibility. Punitive damages may be awarded as punishment against an erring corporation over and above any actual damages. This, again, is important for the victims of Bhopal. Traditional measures of damages in injury cases, lost wages and medical expenses provide little relief in Bhopal, where the average person is poor and medical expenses cheap. Further, actual damages are usually covered by the corporation's insurance policy. Punitive damages, however, are over and above actual damages and are not insured. They come directly from the corporate treasury. Thus, it is the American legal system that affords the best opportunity to repair the damages and compensate the injured in Bhopal. Indeed, a $15 billion lawsuit has already been filed on the case. For those injured by corporate irresponsibility in Bhopal and elsewhere, the American legal system provides what we all take for granted--a free and fair opportunity to recover compensation for our injuries.

The Law Firm of Lawrence Landskroner & Associates
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