Remember Bhopal? The world's worst industrial disaster--the leak of poisonous gas at a Union Carbide plant in India nearly five years ago--may soon emerge as the world's worst miscarriage of justice, with the United States playing a leading role in this international tragedy. Yet California's civil justice system could provide a last chance to obtain justice for the thousands killed or maimed and rescue the United States from its share of the shame in Bhopal.
The American public seems largely unaware of how U.S. courts have failed us and the victims in India by their actions in this case.
It is difficult to comprehend the scope of what happened. More than 260,000 people (roughly equal to the population of three Santa Monicas) were exposed to the deadly cloud. Perhaps one in five suffered permanently debilitating injury, and one in 50 died in excruciating agony. Tons of deadly toxin went into our shared biosphere. If an American corporation is allowed to be so careless with lives far removed from ours, it can be as careless here.
Because Union Carbide made critical design, operational and expenditure decisions in the United States regarding Bhopal, our justice system has a responsibility in this case. This responsibility has so far been evaded. The United States has allowed the corporation to sell off assets, pay shareholders handsomely and realize record profits since the disaster. But the suffering men, women and children of Bhopal, who are still dying at an average rate of at least one per day, have received virtually nothing.
Meanwhile, Union Carbide has paid enormous sums to keep this case from going to trial. The firm's vast public relations effort has blunted the impact of what hard Bhopal news has appeared in the American media in the grim years of the accident's aftermath.
Last February, Union Carbide and the Indian government struck a deal that would vastly under-compensate the Bhopal victims and have little impact on the firm's financial health. The deal elicited such public outrage in India that the Supreme Court there is re-examining its approval. However, there are indications that the deal will go forward soon, ending Bhopal litigation in India. Only a small percentage of those who need it will receive any compensation through this settlement.
In 1986, a federal court in New York sent most Bhopal claims--which had originally been filed in U.S. state courts--back to India. By dismissing the cases here, the court denied the victims the opportunity to obtain compensation under U.S. laws. The ruling sent a message to all transnational corporations headquartered in the United States that American courts will not hold them accountable when their actions here are responsible for industrial disasters elsewhere.
Does this mean that American courts aspire to set as models for corporate conduct the worst companies of the world, rather than the best?
This is the only country where a firm as powerful as Union Carbide could be forced to defend itself before a jury. U.S. liability laws and jury trials have provided the strongest check on corporate negligence of any in the world. As this case illustrates, once the threat of U.S. laws and jury trials is removed, multinational wrongdoers are liberated from the necessity to pay their victims fair--or perhaps any--compensation.
So what can California do?
Despite the federal court's decision to send this case back to India, state courts have the authority to try claims separately, taking full advantage of liability and jury laws. Various technicalities in the case have kept the statute of limitations from running out.
Through trial of just a few claims, a jury could establish Union Carbide's liability. At the very least, the threat of a jury trial here might be the only realistic incentive for Union Carbide to increase its paltry $470-million settlement offer.
Why California? Because the law in this state is unique. California does a large volume of foreign trade, and its courts should preserve the highest standard of international law. Since a decision in 1984, California courts have been more accessible to foreign victims of American companies than the courts of most other states. Certainly, all California businesses and residents benefit from a justice system that encourages responsible international behavior.
We must ask ourselves what kind of international example we wish our courts to provide. Is it their function to protect American corporations from the consequences of their negligence in other countries? Or is it to protect the value of human life and to defend our global environment, increasingly endangered everywhere by the effects of hazardous technologies?
More Bhopals will happen if those involved with such technologies are not held to the highest standard of care and responsibility wherever they operate. California can help reduce the chances of another such tragedy, here or elsewhere, by supporting justice here for the Bhopal victims.