Last month, we criticized The New York Times for leaving a big hole in a page-one story on the aftermath of Bhopal—the worst industrial disaster in history—by skimming over the issue of whether Dow Chemical ought to be responsible for the cleanup. The unremediated site of the disaster, which killed 3,000 people in their sleep, has dangerously polluted the drinking water of thousands of Indians around it.
After receiving a letter from a U.K.-based Bhopal advocate spelling out why Dow is legally liable for the mess because of its acquisition of Union Carbide—which owned the chemical plant that killed all the people—we asked Dow for a response. Both letters are below.
For background, this BusinessWeek story from 2002, a year after the acquisition, says Dow was on the hook for Union Carbide’s asbestos liabilities in the U.S., but doesn’t address the issue of responsibility for the Indian disaster.
Another BW story a couple of months ago looked at the question of Dow’s liability, but doesn’t give us much more than he said/she said.
In an awkwardly worded sentence (actually four run-on sentences in the passive voice), Dow asserts that it settled liability in 1989:
Liability was settled by Union Carbide Corporation in 1989 and they have no outstanding liability for Bhopal Union Carbide Corporation and the former Union Carbide India Limited (now Eveready Industries India Limited) settled their liabilities regarding the Bhopal tragedy with the Indian government in 1989 and this settlement was upheld by the Indian Supreme Court in 1991.
The U.K. advocate, Tim Edwards, meanwhile, says the 1989 settlement dealt only with the deaths and injuries that resulted from the accident, not with remediation. This 1989 NYT story supports the advocate’s position.
Also, Dow’s claim that Union Carbide “remains a separate company” after Dow’s 2001 acquisition of UCC—even if upheld by the courts—doesn’t mean that Bhopal doesn’t affect it. While corporations protect shareholders and directors from liability (with certain exceptions), that doesn’t mean Union Carbide itself isn’t liable for its actions and those of its own subsidiaries at Bhopal. Its former CEO, Warren M. Anderson, is still a fugitive from Indian law nearly twenty-five years after the incident.
Finally, Dow claims that the Indian state in 1998 had already taken back the lease that tagged a Carbide Indian unit (and Carbide’s future owners) with responsibility to clean up the land.
But Edwards, who edits Bhopal.net, offers an interesting account of how the state decided to take back a lease so loaded with liabilities—it was a bureaucratic mistake. As it happens, as late as 1998, the Carbide unit was still (slowly) cleaning up the site, tacitly acknowledging its liability:
That is, until they got lucky: in 1998, another branch of local government, seemingly unaware of what the left hand was doing, wrote to EIIL [the unit] to ask if they were still using the land for industrial purposes and, if not, to return the lease. EIIL responded with barely suppressed glee that they were not using the land and asking for a date to return the cursed lease. The lease was duly returned in July 1998. The Pollution Control Board realized the mistake and demanded that EIIL come back and finish the work but the Union Carbide-trained manager refused, citing the hand-over of the lease.
The fact is, though, the matter of Dow’s liability remains one of genuine controversy, and our criticism of the Times was a little too easy. Still, in handling a twenty-four-year-old controversy, the Times should at least have spelled out the issues, even if it couldn’t resolve them.