Vizag Gas Leak: Why the NGT Should Have Applied Absolute, Not Strict, Liability

On May 7, styrene gas leaked from a chemical plant owned by the South Korean company LG Polymers India Pvt. Ltd in Gopalapatnam, Vizag. The leaked gas killed 11 people and sickened over a 1,000, and also affected many flora and fauna in the area. Once the incident was widely reported in the media, the National Green Tribunal (NGT) took suo motu cognisance of the matter: it formed a committee under a retired judge of the Andhra Pradesh high court to inspect the site and determine the cause of the incident, the damage caused to life, environment and health, and steps to compensate victims.

The NGT also asked LG Polymers to deposit Rs 50 crore with the collector. The tribunal determined the amount after factoring in the company’s financial worth and the extent of damage.

Several reports have compared this incident with the Bhopal gas leak of 1984 but the incidents differ in their intensity and, unlike Union Carbide Corporation, LG Polymers did not know in advance that toxic gas could leak. However, the nature of the substance and the companies’ activities are similar, and this suggests that the principle of absolute liability could be applied in the current case as well.

Strict liability and absolute liability

In its order, the NGT directed the application of a strict liability principle for damage to the people and environment. This is a problem.

The principle of strict liability states that a person who brings on to her land anything likely to cause harm is liable to pay compensation when the thing escapes and causes harm. However, she is liable only when there is non-natural use of land; the principle also restricts liability when the escape is due to an act of strangers, of god, due to the person injured, when it happens with the consent of the person injured or with statutory authority.

Also Read: Vizag Gas Leak: LG Polymers Operated Without Appropriate Environment Clearance

The principle of absolute liability is rooted in a 1987 case in the Supreme Court, M.C. Mehta v. Union Of India & Ors. It relates to the escape of oleum gas from a unit of the Shriram Foods and Fertilisers Industries, Delhi, belonging to Delhi Cloth Mill Ltd. The leak killed an advocate practicing in the Tees Hazari Court and several people were also injured. Justice P.N. Bhagwati, while delivering the Supreme Court’s judgement, noted that the rule of strict liability couldn’t apply because the principle was created before advancements in technology and the economy.

So the court evolved the principle of absolute liability, which implies that whenever an enterprise is engaged in any dangerous or hazardous activity that threatens the people working in the enterprise and those living nearby, it owes an absolute and non-delegable duty to the community that no harm will be caused. If harm is indeed caused, the enterprise will have to compensate for damages, and can’t use exceptions provided in the case of strict liability. The enterprise can’t claim that the harm has not been caused due to negligence (absence of due care) or that it had taken all reasonable precautions.

The apex court affirmed this principle in Charan Lal Sahu v Union of India (1990), in which the constitutionality of the Bhopal Gas Disaster (Processing of Claims) Act, 1985, had been challenged.

Now, the tribunal and courts all over India have applied this principle in environmental matters in which human lives have been lost and the environment has been harmed.

Now, styrene gas is a ‘hazardous chemical’ under Rule 2(e) plus Entry 583 of Schedule I of the Manufacture, Storage and Import of Hazardous Chemical Rules 1989. The rules also require on-site and off-site emergency plans to control damage.

But in spite of these facts – that styrene gas is hazardous, that it has caused loss of human lives and damaged the environment, and that it could cause potential long-term health effects – the tribunal has chosen to invoke the principle of strict liability when it should have invoked the principle of absolute liability.

Various exceptions

The application of strict liability requires the cause of the leak to be known because there is ample room for exceptions. For example, in the present case, there are various theories about the leak’s cause, including mishandling of valve controls, a chemical reaction as a result of operators being unable to transport the gas due to the lockdown, auto-polymerisation and vaporisation due to stagnation, and changes in temperature inside the tank.

On the other hand, the application of the principle of absolute liability does not require the cause of incident or the ‘consent’ of the facility’s operators to be known to make any enterprise liable. The liability is triggered by the mere escape of hazardous substances, irrespective of the cause.

The present circumstances demand absolute liability because employees who were reportedly preparing to reopen the working area will be compensated for their loss. It is the company’s duty to ensure its employees have a safe working environment, especially when the company deals with a hazardous substance. Strict liability loosens this agreement – more so since the lockdown has entered its 51st day and labourers and workers across India find themselves in direr straits.

An important lesson India learnt from the Bhopal tragedy was that multinational corporations (MNCs) must be held liable. In 1984 and shortly after, it was very difficult to fix liability on officials of the Union Carbide Corporation even though there was clear evidence of neglect on their part, allowing the deadly gas to escape. And even when it was fixed, it became very difficult to have them extradited to India to be tried before Indian courts.

But not just foreign governments were to blame: the Government of India and the Madhya Pradesh government also played important parts. As Upendra Baxi, emeritus professor of law at the University of Warwick and the University of Delhi, wrote in 2016, parent companies that hold the larger volume of shares in their subsidiaries still manage to escape liability for violating human rights because these MNCs “are above any obligations to people and environs they hurt and harm; operate in a ‘morals-free zone’; they remain beyond the sanctions and cultures of guilt and shame and continue to live in a world of ‘corporate Neanderthalism'”.

Also Read: Why a Plastic Plant Was Deemed ‘Essential’ During Lockdown, and Other Questions on Vizag Gas Leak

In the Vizag leak incident, the Indian company LG Polymers India Pvt. Ltd. is owned by the South Korean battery maker LG Chem. The Government of India should undertake every effort to prosecute the people responsible for the tragedy. Generally, in such cases, the people from the Indian company will be tried but due to technicalities in the law, the parent company will be absolved from any liability.

Then again, the Government of India has consistently been relaxing restrictions to promote industrial activity at the cost of environmental and ecosystem damage, and more recently did away with labour laws originally designed to protect the rights of workers. So it seems unlikely that it will go hammer and tongs after the parent company – and all the more important that the NGT should have invoked the principle of absolute liability.

Amit Kumar is a research scholar at the Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur. He previously taught human rights law at Patna University.