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From America, with love

From America, with love
Amidst all the brouhaha that surrounded President Barack Obama’s visit to New Delhi for the Republic Day celebrations, negotiations surrounding the implementation of the Indo-US nuclear deal have entered the final stages. New Delhi and Washington have finalised the terms and conditions for operationalising their 2008 civil nuclear cooperation agreement, after the joint intervention of US President Barack Obama and Indian Prime Minister Narendra Modi. A significant take away from their meeting at Hyderabad House was that US officials had agreed to withdraw their demand for tracking nuclear materials sourced from third parties in reactors operated by American companies.

Washington’s insistence on monitoring the use of any material or equipment in a US-operated reactor had threatened to derail talks between both nations. US domestic law requires tracking by their authorities of nuclear supplies made to countries like India that have not ratified the Non-Proliferation Treaty. Demanding parity with standard global practices adopted by other countries, however, India was willing to agree to inspections only by the International Atomic Energy Agency (IAEA). To end this impasse Obama decided to use his executive powers to waive off the intrusive tracking processes sought to be imposed by the US negotiators. As per the final agreement, IAEA will monitor India’s use of nuclear material and equipment.

However, the bone of contention between both Washington and New Delhi remains the contents of section 46 of the nuclear liability law, which makes US-based suppliers vulnerable to tort claims. This section empowers ordinary citizens to file tort claims (claim for damages) against suppliers in a civil liability suit. It was a clause, many in the American nuclear industry, saw as an attempt to open their companies up to potentially unlimited liability. US negotiators have been trying to pressurise their Indian counterparts to dilute sections of the nuclear liability law that holds suppliers directly liable, in case of a nuclear accident. Under widely followed global norms, the liability lies with the operator.

Since all nuclear power plants in the country are run by government-owned Nuclear Power Corporation of India Ltd (NPCIL), under global norms, the Government of India would have to pay for damages in case of an accident. However, under the 2010 Indian nuclear liability law, which was passed by both houses of Parliament, equipment suppliers are ultimately responsible for paying damages in case of an accident. This piece of legislation, many commentators believe, has held back American firms like Westinghouse Electric Company and GE-Hitachi from proceeding with the construction of reactors.

To find a way around the liability clause, New Delhi has offered to set up an insurance pool to compensate companies that have won the right to construct reactors. The plan laid out by state run General Insurance Company of India (GIC Re) and other public sector undertakings proposes that insurance would be bought by foreign companies contracted to build nuclear reactors in India. These foreign companies, however, would then recoup the cost of the premium paid to GIC Re by charging a higher amount to its consumers in India. In other words, it can be safely assumed that New Delhi may have found ways to circumvent the nuclear liability law, by inadvertently shifting the burden of a nuclear accident to the retail consumer, since companies will be charging more from them in the future.

Until that time the public exchequer insures for any nuclear liability. Before today’s settlement, American companies were afraid that in the event of an accident, anyone affected could file a civil liability suit against the suppliers as well as operators. Those fears, however, have been laid to rest.  Therefore, as per the agreement, the Government of India will essentially subsidise nuclear energy and as and when the nuclear reactors start producing energy the consumer will pay for it through higher energy costs.

The line taken by the present government will suggest that by not agreeing to the tracking clause it has ensured India’s autonomy in the procurement process. In not addressing the liability issue more comprehensively, however, it has engendered a potential Union Carbide-like situation where the victims could end up receiving paltry compensation for their losses. As it stands now compensation for any losses suffered in case of a nuclear accident are currently capped at Rs 1,500 crore. To put this figure of Rs 1,500 crore in perspective, according to a study released in 2014 by leading Japanese academics, the Fukushima disaster will cost $105 billion or twice the predicted damage in 2011.

The irony is that under the US-liability regime, operators are allowed to sue American suppliers for recovery of damages in the event of an accident. It is on this basis that Metropolitan Edison, the operator of the Three Mile Island nuclear plant, sued its supplier Babcock Wilcox after the infamous 1979 nuclear accident.In addition, a US court in California last October allowed American sailors affected by the Fukushima nuclear accident of 2011 to sue the operator, TEPCO, as well as its suppliers, including General Electric, EBASCO, and Toshiba Westinghouse company. The suppliers were, according to the plaintiffs, “responsible in part for the design, procurement, maintenance, management, or servicing” of the facility. In fact countries like Japan, Austria, Switzerland and Germany have removed liability caps, realising that damages from nuclear accidents could run into billions of dollars.  

Although section 46 of the Liability Act could have potentially exposed suppliers to unlimited damages, under section 17 (b), only the operator (NPCIL) can sue, provided it is clearly stated in the contract. In additions, NPCIL will have to prove that there were definite deficiencies in the material or equipment supplied and services rendered. Winning the suit is conditional to proving deficiencies in the material or equipment supplied or services rendered. After all this trouble, if the value of the contract with the supplier of the equipment that caused the accident is only Rs 5 lakh, then regardless of the extent of damage, the operator will be entitled only to the above sum.

The constitutional validity of the Act has been challenged via a writ petition by Common Cause, a public interest organisation. The petition is currently pending before the Supreme Court. Why the Indian government will agree to such double standards when it comes to liability laws is perplexing. Public policy commentators have suggested that in agreeing to these demands the present government is effectively subsidising the nuclear power industry. This is an ironic move considering safer energy alternatives like wind and solar energy, which make much more commercial and ecological sense, direly need public funding.

According to an article for English news website Scroll by Nityanand Jayaram, a Chennai-based social activist, “Financially, solar and wind energy are already becoming more attractive than nuclear. Electricity from these renewable sources cost Rs 8 and Rs 4.5 per unit respectively, according a report by solar think-tank Bridge to India. Renewables are quicker to erect and are not as politically contentious as nuclear. In contrast, the Mithi Virdi project (in Gujarat) has run into serious opposition from local residents and farmers. If it is ever built, electricity from the Westinghouse reactors will cost Rs 12 per unit.” The figure for Rs 12 per unit was based on a December 25, 2013, Press Trust of India news report that quoted sources from the Department of Atomic Energy.

“Given the poor safety record of India’s nuclear programme and lack of independent and credible regulatory structure, the plans of the central government are misconceived, made for extraneous considerations and would seriously impair the fundamental right to life of the people of India,” said members of Common Cause.

Before we come to any judgement, however, we will have to await details of the insurance pool and other fine prints. Consequently, whether the latest developments in the Indo-US nuclear deal are positive or negative remains open to interpretation. However, somewhere along the line, there is a strong feeling among many that we’ve got the raw end of the deal.
Rinchen Norbu Wangchuk

Rinchen Norbu Wangchuk

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