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Published on Sunday, 28 March 2010 07:59
Some Preliminary Observations
Sukla Sen
The Run Up
The draft Bill which had been approved by the Union Cabinet on November 20 20091 was eventually listed for tabling in the Lok Sabha on March 15 20102, the penultimate day of the first half of the Budget Session of the Parliament, after a lapse of almost 4 months.
In fact, the Bill was in the offing for quite some time by then, since the successful clinching of the Indo-US Nuclear Deal, on October 10 20083.
The Deal has, it may be pertinent to recall, opened up for India the doors to the global nuclear market, thereby making the tag ‘Indo-US’ somewhat of a misnomer in so far as the tag conveys the impression of strict bilaterality4. The market had remained out of bounds since the first (“peaceful”) nuclear explosion carried out by India way back on May 18 1974 with the plutonium obtained from the spent fuel rods of the nuclear reactor CIRUS supplied by Canada5 to mentor India onto the path of developing capabilities to generate nuclear power (only) for “peaceful” purposes. The nuclear explosion, despite the disingenuous tag, “peaceful”, was looked upon by the rest of the world as a clear breach of faith, if not worse. The reactions were strong and almost instantaneous. India was, as a consequence, practically shooed out of the global nuclear market. With passage of time the barriers went further up and up. And, more so, after the second round of five blasts, on May 11 and 13 1998, declaring itself openly as a nuclear weapon power and attracting strong condemnations from the rest of the world5A. Things became even tougher.
But if the US had earlier taken the lead to impose sanctions in response to Indian blasts, under George Bush, it took a unilateral initiative to radically reverse the situation in 2005. The contours of that move were duly captured in a joint statement issued on July 18 by George Bush and Manmohan Singh from Washington DC. After traversing a long and tortuous path marked by cajolements, mainly by India, and muscle flexing by the US, the international community was sort of coerced into accepting India back as a legitimate partner in (civilian) nuclear trade. The 45-member Nuclear Supplier Group (NSG) on September 6 2008 at the end of two rounds of stormy sessions granted a unique waiver to India, completely disregarding Pakistan’s shrill cry for a similar, and even-handed, treatment. The grand reward for the grossly aberrant India stood out in sharp contrast also with the harsh treatment being meted out to Iran, a signatory to the NPT, on the ground of its presumed intention to develop nuclear weapons under the guise of working towards nuclear power despite repeated denials and access granted to IAEA inspections of its facilities.6
This Bill is generally being looked upon as a continuum of that process, allegedly, in order to ensure a “level playing field” for the American enterprises – to let them have a significant share of the cake7, the Indian nuclear market – a part payback for the American generosity bestowed upon India, for its very own reasons though. The move had, however, been first conceived by the then NDA government way back in 19998.
When the US Secretary Of State, Hillary Clinton, visited India in July 20099, there were talks of the Bill getting passed by the Indian Parliament. But nothing of that sort happened. Again in late November 2009, when Singh was to meet Obama in Washington DC10, there was talk of getting the Bill enacted. Even then, it did not happen. The Union Cabinet had dutifully approved the Bill just on the eve of the visit though. With Manmohan Singh to visit the US to attend the Nuclear Security Summit, called by President Barack Obama, slated to be held on April 12-13111, the government was again trying to push it through. Never mind the considerable cooling off of Indo-US relations in the meanwhile as compared to the George Bush days12.
It is of course quite another matter altogether that the Bill could not eventually be tabled on account of the shift in relationship of forces within the Parliament caused by the introduction, and its passage in the Upper House, of the much lauded and controversial Women’s reservation Bill13. And now, given the realignment of forces, whatever be the intentions of the government, no easy or early passage is on the cards. But that does in no way mitigate the salience of the Bill and its serious implications. In any case, Barack Obama is scheduled to visit India later this year14. So the pressure will persist.
The Bill
Since the Bill was approved by the Union Cabinet on November 20 2009, at least three significant changes have been made. One, the name has been changed from ‘The Civil Liability for Nuclear Damage Bill 2009’ to ‘The Civil Liability for Nuclear Damage Bill 2010’15. Two, in clause 6. (2), the quantum of “liability of an operator for each nuclear incident” has been revised upwards from “rupees three hundred crores” to “rupees five hundred crores”. Three, a new “Chapter”, ‘Offences and Penalties’ with 4 clauses, has been added. Also, the Chapter IV, ‘Claims and Awards’, has been somewhat restructured and expanded.
The Bill, in the present form, is contained in 28 (26 + ii) pages. It has 7 Chapters constituted of 49 clauses and also ‘Statement of Objects and Reasons’ with ‘Notes on clauses’ following plus two memoranda.
The objective of the Bill as laid down in the extended subject line is:
To provide for civil liability for nuclear damage, appointment of claims Commissioner, establishment of Nuclear Damage Claims Commission and for matters connected therewith or incidental there of
Para 7 of the ‘Statement of Objects and Reasons’ further lays down that the purpose of the Bill is: to enact a legislation which provides for nuclear liability that might arise due to a nuclear incident and also the necessity of joining an appropriate international liability regime.
The “appropriate international liability regime” clearly refers to ‘Convention on Supplementary Compensation for Nuclear Damage’ (CSC) – 199716, which is purportedly based on the earlier Paris and Vienna Conventions. India is as yet signatory to none of these Conventions.17 And the CSC is yet to come into force18. And, that being the case, India has got to get a national law enacted so as to be able to declare that its national law complies with the provisions of the Annex to the subject Convention, before it is considered for membership of this Convention (i.e. CSC).
This Bill appears to be very much a move in that direction. It is, however, interesting to note while the CSC provides that “liability” of the “operator” is absolute, i.e. the operator is held “liable” irrespective of fault; the corresponding provision in the subject Bill, as contained in Clause 5 (Chapter II), is pretty much contrary to that. This Clause lists out the circumstances under which the “operator” will not be “liable” in case of an accident.
Regardless of justifiability or otherwise, the motivation for such a clear departure deserves to be properly explored.
The range of implications of joining this Convention, the main purpose of which appears to make Supplementary Compensation available jointly by the member countries in case of a (catastrophic) accident over and above the “liability” limit of the “operator” and the concerned state19, also need be thoroughly examined.
The author of the Bill is Prithviraj Chavan (Minister of State for Science and Technology and Earth Sciences).
The Bill, in pursuance of the objective as spelt out above, in the Clause 9 (Chapter III) provides:
The Central Government shall, by notification, appoint one or more Claims Commissioners for such area, as may be specified in that notification, for the purpose of adjudicating upon claims for compensation in respect of nuclear damage.
The Chapter IV provides the details as regards ‘Claims and Awards’.
The heart of the Bill is however, arguably, constituted of clause 5, 6 and 7 (Chapter II). The clause 6 gives out the limits of “liabilities”, clause 7 spells out the “liability” of the Central Government and the clause 5 lists out the circumstances under which the “operator” shall not be “liable”.
The Major Problems
The major problems are as under:
I. The Bill paves the path for private participation as "operator" of nuclear power plants in India.
One of the central elements of the Bill is to define the "liability", arising out of any nuclear accident, of an individual "operator" – independent of (and unaffiliated with) the Government of India.
Till now all nuclear establishments/ventures, including power plants, without any exception, are run by the state through affiliated bodies – the Uranium Corporation of India Limited (UCIL) for uranium mines and the Nuclear Power Corporation of India Limited (NPCIL) for the power plants.
Given that fact, this provision makes sense only in the context of an impending programme for participation of private players as “operators” of nuclear power plants.
In fact, the Clause 6. (2), inter alia, provides:
The liability of an operator for each nuclear incident shall be rupees five hundred crores
And, the Clause 7 (1), inter alia, provides:
The Central Government shall be liable for nuclear damage in respect of a nuclear incident.
(a) where liability exceeds the amount of liability of an operator specified under sub-section of section 6;
(b) occurring in a nuclear installation owned by it
Furthermore, the Clause 6. (1) provides:
The maximum amount of liability in respect of each nuclear incident shall be the rupee equivalent of three hundred million Special Drawing Rights.
Therefore in case of the power plants operated by the NPCIL, as is the case with all the plants as of now, the quantum of “liability” is “three hundred million Special Drawing Rights” or equal to the “maximum” (i.e. total) “liability”.
The much lower quantum of “rupees five hundred crores” will apply only in case of nuclear power plants not owned/operated by the NPCIL. As of now, there is neither any such plant nor has any such plan been announced.
But these provisions taken together are a clear pointer to that direction.
The nuclear industry is unique in character in terms of safety hazards. And a nuclear power plant is potentially catastrophic, as so chillingly demonstrated by the Chernobyl disaster on April 26 198620, in particular. Given the fact that profit maximisation drive is the very raison detre of any private enterprise giving rise to the intrinsic and inevitable tendency to cut corners in the field of "safety", the envisaged ushering in of private players as “operators” of nuclear power plants is an open armed invitation to disaster.
A regulatory body overseeing safety measures can at best mitigate this trend, not eliminate it by any stretch. And given the tremendous clout of the private operators in this field given the scale of investments required, the efficacy of any regulatory body, in any case, would be highly suspect.
Hence, this move calls for all out resistance.
And, the CSC does in no way obligate its members to open up their wombs to private “operators”.
II. A. The Bill proposes to limit the total “liability" (of the (private) "operator" plus the "state") regardless of the scale of the disaster.
This is just unacceptable.
II. B. On top of that, the total or “maximum” “liability" has been "capped" at "three hundred million Special Drawing Rights [SDR]". This works out to just around Rs. 2,100 crore and 450 million US$.21
In case of Bhopal Gas Disaster, the Supreme Court had approved a deal between the contending parties providing compensation to the victims amounting to US$ 470 million22. That was way back in 1989, more than two decades ago. Even at that time this was considered grossly inadequate.
So, while whatever cap on “liability” is unacceptable; this cap on total “liability" or the "maximum amount of liability", as the draft Bill has put it, is woefully paltry. More so, given the fact that a catastrophic nuclear accident may very well dwarf the Bhopal Gas Disaster in terms of devastations.
In case of Chernobyl Disaster, while no precise estimate of total economic impact is available, as per one report, the total “spending [only] by [neighbouring] Belarus on Chernobyl between 1991 and 2003 was more than US $ 13 billion.23
That’s incomparably larger as compared to the “maximum liability” pegged in the Bill – 450 million US $!
However, once India joins the CSC, and it comes into force, the cap on total “liability” would undergo significant change as additional compensation over and above 300 million SDR would become available. In fact the CSC also permits the concerned states to provide for further (“third tier”)24compensation over and above the CSC limits. As long as the nuclear power plants in India obtain, joining the Convention may in fact turn out to be beneficial for the potential victims. But then the government must come clean on its plans, make specific commitment and explain the implications. The onus clearly lies with it.
III. The liability of an individual non-state (i.e. private) "operator" has been "capped" at a mere Rs. 500 crore. Less than one-fourth of the total or "maximum" liability.
And, the difference between the actual compensation to be paid and the "liability" of a private "operator" would be borne by the Indian government i.e. the Indian taxpayers/people.
So, while the very concept of cap is unacceptable and the total cap could very much turn out to be woefully inadequate; the cap on individual private "operator is abysmally low - less than one-fourth of the total cap.
It is evidently an attempt to brazenly favour a private "operator" at the cost of Indian masses.
The eminent jurist, and former Attorney General, Soli Sorabjee has argued in details25:
Any legislation that attempts to dilute the Polluter Pays and Precautionary Principle and imposes a cap on liability is likely to be struck down as it would be in blatant defiance of the Supreme Court judgments. Moreover, it would be against the interests and the cherished fundamental right to life of the people of India whose protection should be the primary concern of any civilised democratic government.
Not only that, there is a further provision that this cap for an individual "operator" may be fixed lower or higher than the normative cap of Rs. 500 crore, but in no case lower than Rs. 100 crore. Quite significantly, while the cap of Rs. 300 crore, as had been understandably approved by the Union Cabinet, now stands revised upward to Rs. 500 crore; there is no corresponding revision of the floor level of Rs. 100 crore. So this “revision” in actual practice may turn out to be just a ploy, an act of deception.
It is not clear what stops the Indian government, or its designated agency, to peg such caps, while actually operating this provision “having regard to the extent of risk involved in a nuclear installation” – and no objective parameters whatever having been laid down, at the minimum of Rs. 100 crore, or thereabout?
In that case, the "cap" for the private "operator" becomes even less than one-twentieth of the total or "maximum" "cap. That's just ridiculous.
It is also equally significant that while “the Central Government may, having regard to the extent of risk involved in a nuclear installation by notification, either increase or decrease the amount of liability of the operator”, there is no such corresponding provision for the “maximum [i.e. total] liability”. If the risk assessment of any particular “installation” makes it liable for adjusting the “liability” for the private “operator” it would be quite logical to adjust the “maximum [i.e. total] liability” for that “installation” in alignment with that. That nothing of that sort has been provided in the Bill clearly gives away the real intention behind. To lower down the “liability” of a private “operator” even much below the otherwise abysmally low amount of Rs. 500 crore – not even one-fourth of the “maximum liability”. That’s evidently just a stratagem to deceive.
Furthermore, with passage of time, the Indian Rupee is expected to depreciate against the SDR. With the total or "maximum" cap having been defined in terms of SDR and the cap of individual private "operator" in terms of Indian Rupees, the proportion of the financial burden to be borne by a private "operator", in case of a catastrophic accident, would further go down! Here again, there is no apparent reason, other than to favour the private “operator”, why in one case it is SDR and in the other case it is Indian Rupees.
Here it is pertinent to keep in mind that the CSC does not establish either a floor or a ceiling on the liability of the operator or require the concerned state to limit the liability of the “operator”. It in no way makes it incumbent upon any member country to either bring in private “operator” or limit/cap its “liability” at a level lower than the “total liability” (of minimum 300 million SDR).24
The Situation in the US
In case of the US, in the event of an accident, the first $375 million is paid by the insurer(s) of the plant. It is mandatory to insure the plant.
Beyond that, up to US$ 10 billion is paid out of a fund jointly contributed by the “operators” as mandated by the Price-Anderson Nuclear Industries Indemnity Act.
Beyond that, the Federal Government pays.26
The contrast is too stark.
Other Issues
The argument by some commentators that without this Bill being enacted, the American companies would be at a disadvantage appears to be somewhat confused and only partly true. The American vendors will conceivably be at no disadvantage as compared to their competitors as the vendors are routinely "indemnified for consequential damages". Even otherwise, the Bill does not prohibit the “operator” from making the equipment vendor “liable” on account of an “accident”. That is between the “operator” and the “vendor”. But as far as the victim is concerned, the “operator” will be “liable” subject to the applicable cap. From the (potential) victim’s point of view, such single point responsibility should actually be welcome. That would conceivably cut down much of legal complications which may arise otherwise.
The US-based enterprises will, however, be at a distinct disadvantage as prospective "operators" in absence of a cap on their “liability”.
The mainstream, and also radical, critics, known to be otherwise knowledgeable, have rather pitiably missed the central point that the essential thrust of the Bill is to enact a law in compliance of the CSC and usher in private players as "operators" and peg their “liability” at ridiculously low levels, going well beyond the framework of the CSC.27
The other point that has been raised is that the Bill “lets nuclear equipment suppliers and designers off the hook”28. This, however, appears to be fairly misconceived – at two distinct levels. One, the vendor, the designer or even the turn-key contractor is customarily indemnified (i.e. given immunity) from consequential damages (which include third party damages). That is the standard norm. Two, the Bill itself does not do anything to prohibit the plant owner/operator from incorporating suitable clause(s) in the contract with the vendor/designer/turn-key contractor to hold them liable for any damage caused to any third party arising out of their faults.
Much to the contrary, the Clause 17, inter alia, provides as under:
The operator of a nuclear installation shall have a right of resource where –
(a) such right is expressly provided for in a contract in writing;
(b) the nuclear incident has resulted from the wilful act or gross negligence on the part of the supplier of the material, equipment or services, or of his employee;
That evidently knocks the bottom out of the argument that the Bill “lets nuclear equipment suppliers and designers off the hook”.
It, however, holds the “operator” responsible vis-à-vis the victims of any accident. That is both logical as the accident would take place while the “operator” is “operating” the plant; and highly welcome from the potential victim’s point of view as this would eliminate likely complications in determining and pinpointing “responsibility” resulting in interminable delays in obtaining any succour.
The objections raised as regards the 10-year limit to “liability” 29, as provided in Clause 18 (Chapter IV), are quite valid. In case of exposure to low dose radiations, the injuries caused thereby – mostly in various forms of cancer, may take much longer time to manifest. But then it would be that much difficult to establish the causal link.
Conclusion
All in all, the Bill has got to be opposed on the following grounds:
I. The Bill paves the path for private participation as "operator" of nuclear power plants in India. That’s an open invitation to disaster.
II. A. The Bill proposes to limit the total “liability" (of the (private) "operator" plus the "state") regardless of the scale of the disaster. That’s just unacceptable.
II. B. On top of that, the total or “maximum” “liability" has been "capped" at "three hundred million Special Drawing Rights [SDR]". This is too paltry.
III. The liability of an individual non-state (i.e. private) "operator" has been "capped" at a mere Rs. 500 crore. Less than one-fourth of the total or "maximum" liability. And it has provisions to further lower this amount, and pretty steeply at that. This is a blatant negation of the Polluter Pays and Precautionary Principle clearly and assiduously laid down by the Indian Supreme Court.
The Bill, if not withdrawn outright, must be referred to the concerned Standing Committee after tabling in the Parliament and widespread, open and transparent public consultations must follow thereafter to consider all the pros and cons, including the implications of joining the CSC, before taking any further step forward.
26 03 2010
Notes:
1. See: <http://www.dailyindia.com/show/364588.php> or <http://www.kseboa.org/news/us-pressure-civil-nuclear-liability-bill-likely-in-parliament-session.html>, for example.
2. See: <http://news.rediff.com/report/2010/mar/13/nuke-bill-to-be-tabled-in-rs.htm> and <http://www.business-standard.com/india/news/nuclear-bill-to-be-tabled-in-rsmarch-15-govt/388495/>, for example. A significant point to note is that as late as on March 14, and 13, both these news items, from otherwise credible sources, are quoting the concerned Minister to the effect that the Bill would be tabled in the Rajya Sabha on March 15. While, in reality, it was to be tabled in the Lok Sabha. That shows the degree of non-transparency prevailing.
3. See the Editorial, and other articles under the section, Indo-US Nuclear Deal, in the Peace Now, March 2009 at <http://www.cndpindia.org/download.php?view.16> for an account of how the deal crossed its last hurdles. The news item at <http://www.kseboa.org/news/us-pressure-civil-nuclear-liability-bill-likely-in-parliament-session.html> explicitly links the Bill with the Deal thus: "The passage of a civil nuclear liability Bill is one of key steps in implementation of the India-US civil nuclear agreement." And, it is no unique. Here is another example: "The US has linked the completion of the Indo-US nuclear agreement to India’s capping of nuclear liability and that is why the hasty move to introduce this in parliament." at <http://indiacurrentaffairs.org/civil-nuclear-liability-bill-prefering-interests-of-us-companies-over-indian-people/>. There is no specific provision in the Deal to this effect though. A rather well-informed article at <http://www.american.com/archive/2010/march/india-the-united-states-and-high-tech-trade> lists out 3 hurdles in full implementation of the "landmark U.S.-India Civil Nuclear Agreement—the crown jewel of the U.S.-India strategic partnership".
4. See the Editorial in the Peace Now, February 2010 at <http://www.cndpindia.org/download.php?list.13>.
5. India’s first reactor, the 1 Megawatt (MWt) Aspara Research Reactor, was built with British assistance in 1955. The following year, India acquired a CIRUS 40 MWt heavy-water-moderated research reactor from Canada. The United States agreed to supply heavy water for the project. ... India commissioned a reprocessing facility at Trombay, which was used to separate out the plutonium produced by the CIRUS research reactor. This plutonium was used in India's first nuclear test on May 18, 1974, described by the Indian government as a “peaceful nuclear explosion.” Excerpted from India’s Nuclear Program by Volha Charnysh at <http://www.nuclearfiles.org/menu/key-issues/nuclear-weapons/issues/proliferation/india/charnysh_india_analysis.pdf>. Also see Nuclear Power in India: Failed Past, Dubious Future by M. V. Ramana at <www.npec-web.org/Essays/Ramana-NuclearPowerInIndia.pdf>. This talks of India being largely cut off from the international nuclear market as a consequence.
5A. For world reactions to May 98 blasts, see <http://www.fas.org/news/india/1998/05/wwwhma14.html>.
6. For a brief evaluation and the trajectory of the Deal (till early 2008), see <http://www.europe-solidaire.org/spip.php?article10224>. For a timeline, see p 7/8, Peace Now, Feb, 2010 at <http://www.cndpindia.org/download.php?list.13>.
7. See <http://indiacurrentaffairs.org/civil-nuclear-liability-bill-prefering-interests-of-us-companies-over-indian-people/>, for example. The pleadings of Omer F Brown, a key spokesperson for the US nuclear industry, that India enacts a nuclear liability law, as referred to above, has further validated this position.
8. See: <http://www.business-standard.com/india/news//govt-open-to-raising-nuclear-liability-cap//388512/>, for a very concise history of the move towards enacting a nuclear liability cap bill, locating the first move way back in 1999, and an explication of the government's point of view.
9. See <http://www.america.gov/st/texttrans-english/2009/July/20090720161943xjsnommis0.2136499.html>.
10. See: <http://news.bbc.co.uk/2/hi/business/8374050.stm>.
11. See: <http://www.deccanchronicle.com/national/pm-may-visit-us-april-n-summit-158>.
12. See the Abstract at <http://acdis.illinois.edu/newsarchive/newsitem-indiausrelationsfrombushtoobamanewchallenges.html>, for example. Also <http://pragmatic.nationalinterest.in/2010/03/24/understanding-indo-us-relationship/>.
13. See: <http://www.hindustantimes.com/india/Nuclear-liability-bill-not-to-be-tabled-in-Lok-Sabha-today/519134/H1-Article1-519210.aspx>, for example. The news item also reported that: "Government sources say that Prime Minister Manmohan Singh is keen to get the bill passed in parliament ahead of his US visit in April." Also see <http://www.dailyindia.com/show/363428.php>.
14. See; <http://www.hindustantimes.com/News-Feed/americas/Obama-to-visit-India-later-this-year/Article1-518487.aspx>.
15. See the revised Bill at <http://www.cndpindia.org/download.php?view.36> and compare with the description of the earlier version given in Nuclear Liability Law in Developing Countries - Indian Case by B. B. Singh at <http://www.cndpindia.org/e107_plugins/content/content.php?content.65>.
16. See: <http://www.iaea.org/Publications/Documents/Conventions/supcomp.htmll>.
17. See B B Singh, op cit.
18. See A flawed Bill by Praful Bidwai at <http://www.flonnet.com/stories/20100409270709500.htm>. It provides: since it was opened for signature in 1977[read 1997], the CSC has only been signed by 13 states and ratified by only four countries (Argentina, Morocco, Romania and the U.S.) – in place of the minimum of five countries needed for its entry-into-force.
The relevant provision, Article XX. 1, reads: This Convention shall come into force on the ninetieth day following the date on which at least 5 States with a minimum of 400,000 units of installed nuclear capacity have deposited an instrument referred to in Article XVIII.
19. See The Convention on Supplementary Compensation for Nuclear Damage: Catalyst for a Global Nuclear Liability Regime by Ben McRae at <http://www.nea.fr/law/nlb/nlb-79/017-035%20-%20Article%20Ben%20McRae.pdf> for detailed explanations.
20. For a quite conservative, but exhaustive, estimates of the impacts of the disaster, see Chernobyl’s Legacy: Health, Environmental and Socio-economic Impacts and Recommendations to the Governments of Belarus, the Russian Federation and Ukraine by The Chernobyl Forum at <http://www.iaea.org/Publications/Booklets/Chernobyl/chernobyl.pdf>. For an alternative assessment by the Greenpeace, look up
<http://archive.greenpeace.org/comms/nukes/chernob/read25.html>
21. The exchange rate on March 25 2010 stands at 0.6603090000 SDR per US$, at <http://www.imf.org/external/np/fin/data/rms_five.aspx>. And, SDR 0.0144709000 per Indian Rupee.
22. A news item at <http://beta.thehindu.com/news/national/article53103.ece> provides: According to an agreement on February 15, 1989 facilitated by the Supreme Court, the Union Carbide Corporation, U.S. provided a compensation of $ 470 million (Rs. 715 crore) …
23. See: <http://www.greenfacts.org/en/chernobyl/l-3/5-social-economic-impacts.htm#1p0>. The comparable estimate reported by the Greenpeace, at <http://archive.greenpeace.org/comms/nukes/chernob/read25.html>, is:
The Belarus Government estimate the total economic damage caused between 1986-2015 would be (1992 June prices) $235 billion. In Ukraine, in 1995 the Ministry for Chernobyl needed 286.4 thousand billions of karbovanets ($2.3 billion), but received only one third of this. It is therefore possible to estimate that the total bill for those countries most effected will exceed $300 billion by 2015.
24. Ben McRae, op cit.
25. See: <http://beta.thehindu.com/opinion/lead/article64688.ece?homepage=true>.
26. See: <http://en.wikipedia.org/wiki/Price%E2%80%93Anderson_Nuclear_Industries_Indemnity_Act >.
27. India-US Nuclear Deal Redux: Another Showdown by Radha Surya at <http://www.zcommunications.org/india-us-nuclear-deal-redux-by-radha-surya>, which refers also to various other eminent critics including Brahma Chellaney, a known nuclear hawk, and Gopal Krishna, of the Toxics Watch Alliance (TWA), is an excellent illustrative case.
28. The bill lets nuclear equipment suppliers and designers off the hook. Excerpted from The great nuclear folly by Praful Bidwai at <http://www.thedailystar.net/newDesign/news-details.php?nid=130882>. The oft repeated references made to the Bhopal Gas Disaster and the “liability” of the Union Carbide therein is plainly misleading. The Union Carbide was the owner/operator of the plant. Apparently, no one at any stage even as much talked of holding the (yet unheard of) vendors of equipment(s) or designer of the plant responsible or “liable”. Siddharth Varadarajan, even while noting the provisions of the Right to Recourse has rather curiously refused to acknowledge the implications in a forthright manner. Ref. <http://svaradarajan.blogspot.com/2010/03/nuclear-liability-law-has-sting-in-tail.html>.
29. Equally obnoxious is the 10-year limit to liability: many forms of radiation injury, including cancer and genetic damage, reveal themselves only 20 years after exposure. See Bidwai, ibid.
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Published on Thursday, 25 March 2010 04:24
Wednesday, March 24, 2010
Corporate health “reform” has gotten the congressional votes it needed and the public relations spin is on. Now that the “deeply conservative” Barack Obama[1] and his fellow corporate Democrats have pushed their big business-friendly measure – devoid of any public insurance option to counter the power of the insurance oligopoly– through the House and Senate, the reigning bipartisan U.S. political-media culture is pushing two childish narratives: the “liberal” Democratic one of an “historic" people’s victory and the “conservative” Republican one of a dangerous and “socialist” “government takeover.”
“The Industry Has Already Accomplished Its Goal” (August 2009)
These two, mutually reinforcing fairy tales both delete the harsh state-capitalist reality imposed by the “unelected dictatorship of money”[2] in this as in so many other Washington policy dramas. As Business Week candidly told its elite readers last August:
“As the health reform fight shifts this month from a vacationing Washington to congressional districts and local airwaves around the country, much more of the battle than most people realize is already over. The likely victors are insurance giants such as UnitedHealth Group, Aetna, and WellPoint. The carriers have succeeded in redefining the terms of the reform debate to such a degree that no matter what specifics emerge in the voluminous bill Congress may send to President Obama this fall, the insurance industry will emerge more profitable. Health reform could come with a $1 trillion price tag over the next decade, and it may complicate matters for some large employers. But insurance CEOs ought to be smiling.”
“...The [insurance] industry has already accomplished its goal of at least curbing, and maybe blocking any new publicly administered insurance program that could grab market share from the corporations that dominate the business.”[3]
Significantly, Business Week noted that industry executives had “already offered” such “concessions…as accepting all applicants, regardless of age or medical history.” Such concessions “make a government-run competitor unnecessary,” UnitedHealth’s Oxford-educated Vice President Simon Stevens (a former advisor to neoliberal British Prime Minister Tony Blair) told leading administration and elected officials in Washington. "We don't think reform should come crashing down because of [resistance to] a public plan," Stevens argued. “Many congressional Democrats have come to the same conclusion,” Business Week noted.
The key point for the corporate “health” insurance syndicate was to block any public competition/alternative and the insurance moguls were quite ready to give on “pre-existing conditions,” lifetime benefit caps and the like. “Reform” was in the air and had support from many large business, political, and professional interests, not just the nation’s working-class majority. A popular new president had staked his reputation and perhaps his re-elections chances on some (almost any) version being passed. It was going to happen, the insurance and drug companies knew. The leading insurance firms' goal, successfully achieved more than half a year ago, was to “redefine” and set the terms of reform in a way that left core corporate prerogatives intact and unchallenged by popular public alternatives.
Of course, the insurance industry’s big managers and investors will make out like bandits in ways that go beyond killing the public option and which will more than compensate them for “concessions” on some of their most vile and egregious practices (which they knew to be doomed). Insurance premiums can be expected to continue their deadly rise and the mandate that tens of millions of Americans buy private insurance or face fines will boost profits. The “reform” bill prohibits the government from negotiating prices with drug companies and from permitting the importation of drugs. The insurance companies will remain exempt from antitrust laws.
Irrelevant Public Opinion
"And dominate policy” in defiance of irrelevant public opinion," Business Week might have added to its description of the big insurance firms. Majority sentiment on the health care issue had long stood well to the left of business parties and the dominant political class and media, as polling data revealed. Contrary to politicians’ and dominant (corporate) media pundits’ insistent claim that the public insurance option lacked popular support:
* 69 percent of Americans think it is the responsibility of the federal government to provide health coverage to all U.S. citizens (Gallup Poll, 2006).
* 59 percent of Americans support a single-payer health insurance system (CBS/New York Times poll, January 2009).
* 59 percent of doctors back a single-payer system (Annals of Internal Medicine, April 2008).
* In a remarkable CBS-New York Times poll conducted in late September of 2009, 65 percent of more than 1,000 Americans randomly surveyed by CBS and the Times responded affirmatively to the following question: “Would you favor or oppose the government offering everyone a government-administered health insurance plan – something like the Medicare coverage that people 65 and over get – that would compete with private health insurance plans?”[4]
But so what? Who cares? Certainly not the editors of Business Week or the executives and owners of the leading insurance companies, for whom the “reform” bill is a boon. Citizen opinion and democratic theory – according to which the government and the citizenry are the same – are fine and dandy. Things are different in the real world of wealth, power, propaganda, and policy, where government is beholden to the Few, the “real players” are the ones with the deep pockets, and “politics is the shadow cast on society by big business,” as John Dewey noted more than a century ago.
In detailing how the insurance giants were compromising Obama’s initial promise to increase government’s role in the health care market at every step last summer, Business Week noted the special contribution of John Sheils, an actuary employed by the Lewin Group, a corporate consulting firm in Falls Church, Va. According to Sheils, in a dubious “finding” that UnitedHealth used again and again to move federal legislators (including Democratic Senator Mark R. Warner of Virginia) off the public option, “88 million people, or 56% of those with employer-provided coverage, would desert private insurance for a government-run program. That would destabilize the marketplace and potentially kill the private insurance industry.” As it peddled this suspect “scientific” claim (questioned by the Congressional Budget Office) purporting to project a supposedly horrible outcome – many Americans would be less than devastated to hear that the extortionist insurance industry had collapsed (!)– resulting from a public insurance option, UnitedHealth did not advertise the fact that it owned the Lewin Group and therefore paid Sheils’ salary.
Obama’s Secret Accomplishment
Obama is already being hailed by his “liberal” and partisan base for “heroically” leading and the passing “the first comprehensive health reform in U.S. history.” This narrative should not be accepted without serious qualification. It is unwise for leftist critics of corporate power (I am one) to downplay the significance of the bill’s promise to expand coverage to tens of millions who currently lack insurance or of the bill’s measures to end some of the insurance industry’s most revolting practices (yearly and lifetime benefit caps, slashing coverage for people who become sick, and refusing coverage to older people and those with pre-existing medical conditions). These are changes that anyone who is not hopelessly alienated would want to support; we should not be seen as sneering at them (or as being allied with right-wingers denouncing the reform for some very ugly reasons).
Still, a heath reform of some “comprehensive” nature has been in the offing for some time now, for reasons (not the least of which includes the fact that much of the corporate sector has come to want [business-friendly] “health reform”) already mentioned. And contrary to propaganda on both sides of the (narrow) bipartisan spectrum, the insurance companies have been more than ready to “give” on their most vile practices and to see coverage nearly universalized as long as the policy deal leaves their core cost-driving and profit-making powers and oligopolistic structure intact and as long as they were nicely compensated for their “concessions.”
The real question was not whether there would be a health care reform, but whether the reform would be on the people’s terms or on those of the big insurance and drug companies and their Wall Street backers. Obama’s great hidden accomplishment – certain to be buried and ignored by dominant U.S. mass media – has been to secure a reform that expands coverage and abolishes vile and arcane industry practices without fundamentally challenging concentrated corporate and financial power in the health care sector.
What “the Left” (and the Majority of the Population) Wants as “Too Disruptive” and “Politically Impossible”
During an interview with FOX News’ Brett Baier last week, Obama said this about his health bill: “Now, we can fix this in a way that is sensible, that is centrist. I have rejected a whole bunch of provisions that the left wanted that are – you know, they were very adamant about because I thought it would be too disruptive to the system.”[5]
That was a very revealing statement. It speaks volumes about Obama’s “deeply conservative” essence (see note 1 below). What horrid “disruptive” and “system”-threatening provisions were advanced by the “left” and properly rejected by the supposedly “progressive” president? The public option, drug re-importation, and direct Medicare drug price negotiations, not to mention single-payer option, designed to save the country $350 billion a year in corporate insurance company bureaucracy (dedicated largely to denying care to and to marketing) and profits – the two major and interrelated factors behind escalating health care costs.
Never mind that these sane and sensible “Left” measures were supported by most Americans. They had to be demonized by the President and his fellow noble “centrists” as too dangerous and radical because big insurance and drug companies and their Wall Street backers hate such policies - for obvious reasons.
Along the way, conventional political and media wisdom claimed that such measures lacked “political support.” They “didn’t have ‘political support,” the leading left intellectual Noam Chomsky quips, “just the support of the majority of the population, which apparently is not political support in our dysfunctional democracy.” As Chomsky ads, “There should be headlines explaining why, for decades, what’s been called politically impossible is what most of the public has wanted. There should be headlines explaining what that means about the political system and the media.”[6]
There’s a lot of big money behind the insistence that Obama and the Democrats advance the notion that the truly progressive health reform irrelevantly favored by most Americans is too hazardous and extremist to consider. The health sector poured a remarkable $178,252,901 into congressional and presidential campaigns between the beginning of the 2008 election cycle and the summer of 2009. The insurance industry invested $52,739,320. Obama received more than $19 million from the health sector for the 2008 election cycle – a new record.[7] The prolific author and former New York Times reporter Chris Hedges reports that “the five largest private health insurers and their trade group, America’s Health Insurance Plans, spent more than $6 million on lobbying in the first quarter of 2009. Pfizer, the world’s biggest drug maker, spent more than $9 million during the last quarter of 2008 and the first three months of 2009.”[8]
“About Increasing Corporate Profit at Taxpayer Expense”
What can we expect from the “historic reform” now moving its way to the president’s desk? After overdue and elementary changes (many maddeningly delayed until 2014 and after) that any civilized human would want (the expansion of Medicaid and abolition of the right to deny coverage to people with pre-existing conditions, for example), the bill gets much less than exciting from a progressive perspective. Besides blocking single payer (banned from the health policy debate from the beginning of the neoliberal Obama administration) and a public option (downsized and then completely stripped out over the last year) and thereby leaving the for-profit insurance mafia essentially unchallenged, the bill will grant untold billions (trillions over multiple years and decades) of dollars worth of subsidies to that mafia. It will identify “universal care” with government coercion requiring citizens who are not deeply poor to buy that mafia’s persistently pricey products. As Hedges notes, “Families who cannot pay the high premiums, deductibles and co-payments, estimated to be between 15 and 18 percent of most family incomes, will have to default, increasing the number of uninsured. Insurance companies can unilaterally raise prices without ceilings or caps and monopolize local markets to shut out competitors. The $1.055 trillion spent over the next decade will add new layers of bureaucratic red tape to what is an unmanageable and ultimately unsustainable system….This bill is not about fiscal responsibility or the common good. The bill is about increasing corporate profit at taxpayer expense. It is the health care industry’s version of the Wall Street bailout. It lavishes hundreds of billions in government subsidies on insurance and drug companies.”
No wonder that “health care stocks and bonuses for the heads of these corporations are shooting upwards.”[9] It’s a good time to invest in the insurance syndicate.
“First We Have to Take Back the White House…”
For what its’ worth, my sense is that the United States cannot have truly progressive health reform in accord with the national majority’s longstanding support of progressive change without removing the for-profit insurance companies from the equation by introducing the obvious social-democratic and cost-cutting solution: single-payer government health insurance. Obama knows this himself - in a part of his mind rendered inactive by his love for power. When Obama claims (soon) to be the first president to have passed real health reform in the U.S., he won’t say anything about the following comments (available on YouTube) he made as a state senator (speaking to the Illinois AFL-CIO) in the summer of 2003:
“I happen to be a proponent of a single--payer universal health care program. I see no reason why the United States of America, the wealthiest country in the history of the world, spending 14 percent of its Gross National Product on health care cannot provide basic health insurance to everybody. And that's what Jim is talking about when he says everybody in, nobody out. A single payer health care plan, a universal health care plan.”[10]
This statement was made just prior Obama's realization that he had a serious shot at national office - a realization that sharpened his willingness to subordinate himself to the aforementioned “unelected dictatorship.”
Speaking of the struggle for single-payer in 2003, Obama said “we may not get there immediately. Because first we have to take back the White House, we have to take back the Senate, and we have to take back the House”[11]. Nearly seven years later, the federal legislative and executive branches have been “taken back” by the Democratic Party. Sadly, however, the United States’ corporate-managed “dollar democracy” and its narrow “one-and-a-half party system” (Sheldon Wolin) have yet to be taken back from concentrated wealth and the related giant military industrial complex that Dwight Eisenhower had warned about upon leaving the White House.[12] The United States’ “representative democracy” remains crippled by “too much [corporate and military] representation” and too little [actual popular] democracy” (Arundhati Roy)[13] under Obama no less than in the Bush-Cheney years. Far from being an exception to this tragic reality, the current “health reform” is an epitome of it.
The Conyers-Kucinich Congressional Cave
The most pathetic part of the story, perhaps, is the willingness of such supposed fierce congressional single-payer advocates as John Conyers and Dennis Kucinich to support the corporate reform model advanced by Obama, Pelosi, and Reid et al. One might (naively) think that a president who exhibits such clear and unprincipled scorn for progressive ideals he once trumpeted would face strong resistance from the Progressive Caucus. But no, every single member of that group that once pledged to oppose any final bill without a public option caved in and traded in their not-so deeply held principles to help score a partisan victory for a bill that will “enrich and strengthen the same industries that comprise our immoral health care system.”[14]
Yet again we see that true progressive change can never come from within or through the Democratic Party.[15] Nor can such change be achieved with or through such “progressive” and activist organizations as Move.On, which gathered more than $1 million to pressure House Democrats who had originally voted “no” on corporatist health reform to recant their previous rejection of Obama’s proudly "centrist" (by his own description) bill [16], The corporate-managed fake democracy that cloaks the unelected and interrelated dictatorships of money and empire in the U.S. is a richly bipartisan affair. The Democrats’ health reform offers more evidence of this harsh reality.
Paul Street (This email address is being protected from spambots. You need JavaScript enabled to view it.) is the author of many articles, chapters, speeches, and books, including Empire and Inequality: America and the World Since 9/11 (Boulder, CO: Paradigm, 2008); Racial Oppression in the Global Metropolis (New York: Rowman & Littlefield, 2007; Segregated School: Educational Apartheid in the Post-Civil Rights Era (New York: Routledge, 2005); and Barack Obama and the Future of American Politics (Boulder, CO: Paradigm, 2008). Street’s next book The Empire’s New Clothes: Barack Obama in the Real World of Power (Boulder, CO: Paradigm, 2010), will be released next summer.
NOTES
1. This accurate description of Obama belongs to the centrist journalist Larissa MacFarquhar in the spring of 2007. “When he talks about poverty,” MacFarquhar noted, “he tends not to talk about gorging plutocrats and unjust tax breaks: he says that we are our brothers’ keeper, that caring for the poor is one of our traditions.” Such refusal to advance large reform – e.g. single payer health insurance on the Canadian model (which Obama claimed to advocate as late as the summer of 2003 however) – reflected what MacFarquhar found to be Obama’s “deeply conservative” take on history, society and politics: “In his view of history, in his respect for tradition, in his skepticism that the world can be changed any way but very, very slowly, Obama is deeply conservative. There are moments when he sounds almost Burkean. He distrusts abstractions, generalizations, extrapolations, projections. It’s not just that he thinks revolutions are unlikely: he values continuity and stability for their own sake, sometimes even more than he values change for the good. Take health care, for example. “If you’re starting from scratch,” he says, “then a single-payer system”—a government-managed system like Canada’s, which disconnects health insurance from employment—“would probably make sense. But we’ve got all these legacy systems in place, and managing the transition, as well as adjusting the culture to a different system, would be difficult to pull off. So we may need a system that’s not so disruptive that people feel like suddenly what they’ve known for most of their lives is thrown by the wayside”…Asked whether he has changed his mind about anything in the past twenty years, he says, “I’m probably more humble now about the speed with which government programs can solve every problem. For example, I think the impact of parents and communities is at least as significant as the amount of money that’s put into education.” MacFarquhar found that Obama’s “deep conservatism” was why “Republicans continue to find him congenial, especially those who opposed the war on much the same conservative grounds that he did.” She noted that some of Bush’s top fund-raisers were contributing to Obama’s campaign and observed that Obama garnered 40 percent of the Republican vote in his 2004 Senate victory. See Larissa MacFarquhar, “The Conciliator: Where is Barack Obama Coming From?” The New Yorker (May 7, 2007).
2. This excellent phrase belongs to Edward S. Herman and David Peterson, “Riding the ‘Green Wave’ at the Campaign for Peace and Democracy and Beyond,” Electric Politics, July 22, 2009.
3. Writers and editors are often more candid about things in the business press since the relatively privileged and heavily indoctrinated audience of that press is considered safe. At the same time, the elite business and coordinator class audiences/markets of the business press have (since their members commonly play managerial roles that matter) to be somewhat accurately informed about events and developments. They can't be kept in the fantasy world that corporate media creates for the dangerous working- and lower -class majority – the dreaded citizen mass or “rabble.”
4. New York Times-CBS Poll, “Confusion Over Health Care,” survey of 1,042 adults, September 19-23, question number 57, p. 15 of 26, poll results at http://documents.nytimes.com/new-york-times-cbs-news-poll-confusion-over-health-care-tepid-support-for-war#p=15
5. “President Barack Obama Talks to Bret Baier About Health Reform,” FOX News, March 17, 2010, read at http://www.foxnews.com/story/0,2933,589589,00.html.
6. Sahil Kapur, “Chomsky: Health Bill Sustains the System’s Core Ills,” The Raw Story (March 22, 2010), read at http://rawstory.com/2010/03/noam-chomsky-health-bill/.
7. Data from the Center for Responsive Politics “Open Secrets” Web site.
8. Chris Hedges, “The Health Care Hindenburg Has Landed,” Truthdig (March 22, 2010), read at http://www.truthdig.com/report/item/the_health_care_hindenburg_has_landed_20100322/. To make matters worse, Hedges notes that “Up to 30 members of Congress …who hold key committee memberships have major investments in health care companies totaling between $11 million and $27 million. President Barack Obama’s director of health care policy, who will not discuss single payer as an option, has served on the boards of several health care corporations.” Pretty vile.
9. Hedges, “Health Care Hindenburg.” “Take a look at the health care debacle in Massachusetts, a model for what we will get nationwide,” Hedges rightly ads. ”One in six people there who have the mandated insurance say they cannot afford care, and tens of thousands of people have been evicted from the state program because of budget cuts.”
10. "Obama on Single Payer Health Insurance," June 30, 2003, YouTube video clip at http://www.1payer.net/All-Videos/obama-on-single-payer.html. See also YouTube link at http://www.youtube.com/watch?v=fpAyan1fXCE
11. “Obama on Single Payer Health Insurance.”
12. “Eisenhower’s Farewell Address” (January 17, 1961), read at http://en.wikisource.org/wiki/Military-Industrial_Complex_Speech
13. Arundhati Roy, “Democracy’s Fading Light,” Outlook India Magazine (July 13, 2009) at http://www.outlookindia.com/article.aspx?250418.
14. Firedog Lake, March 18, 2010, read at http://seminal.firedoglake.com/diary/35866.
15. For an excellent history and analysis of the Democratic Party, see Lance Selfa, The Democrats: A Critical History (Chicago: Haymarket, 2008). For a detailed review of Selfa’s book, see Paul Street, “A Left Case Against the Democrats,” International Socialist Review (May-June 2008).
16. Hedges, “Health Care Hindenburg.”
