NEWS OF THE WEEK
BHOPAL SETTLEMENT: Victim representation still at issue When word came last week that U n i o n Carbide had tentatively agreed to settle the thousands of claims filed against it by victims of the 1984 Bhopal gas-leak disaster, Wall Street reacted happily. For investors, the first indication that Carbide's liability for the worst industrial disaster in history might no longer be imponderable was enough to send the company's stock price up 9% in a day. The signs are, however, that a final settlement of the Bhopal suits may remain elusive for a while yet. Most significant, the proposed settlement does not include all the parties to the Bhopal litigation. The tentative agreement was reached by Carbide and attorneys representing the U.S. lawyers who went to Bhopal soon after the disaster and signed/ up victims as clients. Not included is the government of India, which, in unequivocal language, has re-
Carbide's pesticide plan t in Bhopal, India, is now shut down 4
March 31, 1986 C&EN
jected the proposal, under which Carbide would pay $350 million to the victims. "The reported amount of the settlement is inadequate and always has been so and is, therefore, totally u n a c c e p t a b l e / ' a government statement issued in New Delhi last week says. "There is no settlement," adds Michael Ciresi, who represents the government of India in the litigation. The disagreement brings to the fore the question of who has the right to represent the Bhopal victims in the U.S. court. This issue is now key, because India must convince Judge John F. Keenan, who is presiding over the case, that he should not approve a settlement that does not include India. Last year, after most of the suits filed in the U.S. were consolidated in federal district court in Manhattan, Judge Keenan appointed a three-man panel to handle the litigation from the plaintiffs' side. The panel comprises Stanley Chesley and F. Lee Bailey, who represent individual victims, and Ciresi. Obviously, the various parties' claims for representation conflict, but the issue was left unresolved at the time while the court focused on Carbide's motion that the case be moved to India. Judge Keenan apparently had begun composing his opinion on the venue issue when the tentative agreement came. India now intends to assert its claim to sole representation of the victims. "The purported agreement is b e t w e e n U n i o n Carbide a n d American attorneys who have no authority to act on behalf of the victims," Ciresi says. India bases its claim on three points. The Bhopal Gas Leak Disaster [Processing of Claims] Act, passed in India in February 1985, gives the
Indian government "the exclusive right to represent and act in place of (whether within or outside India) every person who has made or is entitled to make a claim." On the other hand, the law also says that the government "shall act in place of or along with" a claimant in suits filed outside India "as such court or other authority so permits." This language has been interpreted by some as giving Judge Keenan discretion in determining the U.S. lawyers' role. But India also claims sole representation on the basis of more than 487,000 retainers it says have been executed by Bhopal victims. The estimated toll of the disaster was about 2000 deaths and some 200,000 injuries, so, presumably, many if not most of the plaintiffs who signed on with the U.S. attorneys subsequently retained the Indian government. That may give the government's retainers precedence. "The validity of the American attorneys' retainer agreements must be determined under the laws of India," contends George N. Tompkins Jr., an attorney who has been involved in cases involving mass disasters overseas. "That could be a complicating factor." In addition, India asserts its right under the doctrine of parens patriae—literally, "father of the country"—a legal principle under which the state acts as protector of all citizens unable to protect themselves. Tompkins says he has never known the doctrine to apply in personal injury suits before. According to lawyers near the case, Judge Keenan can now reject the proposed settlement, approve it and let India pursue its claim separately in the U.S. court, or approve it and dismiss India's complaint. Since he has pressed hard up to
now for a negotiated settlement that would satisfy all parties to the case, however, it is thought by many that he will try to bring India back into talks with Carbide and the U.S. at torneys. That might lead, observers say, to a higher compensation offer from the company. India has been widely believed in the past to have demanded as much as $1 billion. Last week, all three parties met in the judge's chambers after the ten tative agreement was disclosed. Carbide says that the proposed $350 million settlement, well be low what had been generally ex pected, would produce a fund for victims over an unspecified payment period of between $500 million and $600 million. The company states
that, in light of what it considers strong defenses in the litigation, the amount is "very substantial." The settlement was condemned as an "outrage" by the Citizens Commis sion on Bhopal, a U.S. group, which has calculated compensation needs at $4 billion over the next 30 years. Another problem facing the pro posed settlement is a determination of precisely which victims are cov ered by it. Carbide says it will not conclude the settlement unless it is certain that all claims arising from the Bhopal disaster can be resolved with finality. Judge Keenan would have to rule on a motion to group the victims into a class, something the parties to the settlement are expected to file for soon. D
Emergency funding halts Superfund shutdown The Environmental Protection Agen cy was prepared to shut down its Superfund hazardous waste dump cleanup program on April 1. But Congress has come to its rescue with a $150 million stopgap funding measure that is expected to carry the agency through May 31. Money for the fund stopped com ing in last Sept. 30, when Superfund's taxing authority expired. And although both the House and Sen ate have passed reauthorization bills for the program, conferees aren't even close to resolving some 730 pages worth of differences between the two bills. The Superfund rescue effort was spearheaded by Sen. Frank R. Lautenberg (D.-N.J.), who said it was nec essary to prevent the program from suffering "serious and, perhaps, ir reversible harm." Without the bill, Lautenberg pointed out during de bate, EPA, on April 1, would have to begin to dismantle Superfund by terminating contracts with compa nies currently involved in cleanup actions. Enforcement actions would be reduced by half. Emergency re movals would be curtailed 80%. And EPA would be able to handle only three or four major emergencies a month. The agency began the pro cess of furloughing its own employ ees in February. "We cannot," Lautenberg main tained, "permit this dismantling of
the program to occur. It is not pos sible to start and stop a program the size and complexity of Superfund without irreparable damage." Apparently his colleagues in the House and Senate agree with him. The rescue effort was introduced on March 20 and enacted on March 21, proving that Congress can act with remarkable speed when neces sary. EPA issued a statement saying that it was "pleased that Congress has given EPA a few more days to pre vent the total shutdown of Super-
La u ten berg: pre ven t serio us harm
fund." However, it added, shortterm funding is no substitute for a full, five-year reauthorization. Su perfund cannot be rebuilt in 60 days. Congress must continue to treat Superfund as a top priority to pre vent further disruption of the pro gram. Π
Justice curbs agency use of consent decrees The Justice Department has decid ed that it's time to curb the use of consent decrees to settle suits brought against the government. Consent de crees are negotiated agreements be tween defendant and plaintiff that have the force of law w h e n ap proved by the presiding judge. In a memorandum setting forth the new policy, Attorney General Edwin Meese III says that in the past, executive departments and agencies have, on occasion, misused consent decrees and forfeited the prerogatives of the executive branch in order to pre-empt the exercise of those prerogatives by a subsequent Administration. The new policy is particularly aimed at decrees that contain "an elaborate recipe on how the executive branch is going to act thereafter," according to assistant attorney general Charles J. Cooper, head of the Office of Legal Counsel. Henceforth, Meese says, executive departments and agencies, in most instances, may not enter into de crees that would require an execu tive officer to revise, amend, or promulgate regulations or to expend funds that have not been appropri ated or budgeted. One of the agencies directly af fected by the new policy is the En v i r o n m e n t a l Protection Agency, which has operated under a num ber of consent decrees over the years because it is frequently sued for fail ing to meet nondiscretionary re sponsibilities, such as specific dead lines, written into the various envi ronmental laws. Those decrees, according to Gene Lucero, director of EPA's Office of Waste Programs Enforcement, don't simply say that the agency will promulgate a rule following a spe cific timetable. Rather, they include March 31, 1986 C&EN
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