The UPA's second great nuclear folly

The nuclear liability bill is fatally flawed. It's designed to shield the nuclear industry from discharging its public responsibility. It must be scrapped, writes Praful Bidwai.

Every government in India in the past three decades has tried to push through some whimsical law or policy which shatters the democratic consensus, violates constitutional values and offends the citizen's conscience.

In 1984-85, Rajiv Gandhi committed a blunder in the Shah Bano case and then opened the gates of the Babri Masjid to Hindu communalists. This eventually catapulted the Bharatiya Janata Party into power. In 1991-92, Narasimha Rao presided over the economy's neo-liberal transformation and the razing of the Babri mosque. In 1998, the BJP conducted nuclear tests and tried to rewrite the Constitution. The United Progressive Alliance in its first avatar pushed the nuclear deal with the US as if it were nirvana -- creating deep rifts within society, the intelligentsia, even the nuclear establishment.

Now, UPA-II has discovered its own favourite folly: the Civil Liability for Nuclear Damage Bill, which caps the liability for nuclear accidents. On March 15, the government put its introduction on the Lok Sabha's agenda -- only to withdraw it without an explanation. This wasn't because of a change of heart, but because non-UPA parties expressed strong opposition to the bill, and a UPA member, Trinamool Congress, seemed ready to oppose it.

The UPA should answer all the objections to the bill before moving it in Parliament. The greatest objection is a fundamental one: there should be no limit at all on the liability for a potentially catastrophic mishap in an industry known to be highly hazardous, one of whose distinguishing features is accident-proneness. The question will discomfit the industry. But it's pertinent.

Nuclear power generation is the only form of energy production which can lead to a catastrophe through a release of radioactivity -- a potent, long-acting killer which damages chromosomes containing the body's basic genetic material. Radiation is especially insidious because of its invisibility and intangibility. The released radioactivity is liable to be deposited over hundreds of thousands of square kilometres and make them uninhabitable for centuries.

A serious accident like Chernobyl in Ukraine (1986), where the reactor core melted down and the plant exploded, can happen in any of the 430-odd power reactors worldwide. All current reactor types are so vulnerable. Sixty three serious accidents with a catastrophic potential have been documented till 2007. Some of these are of a hair-raising kind, called Loss of Coolant Accidents.

In a LOCA, the coolant -- usually water, which must continuously draw out heat produced by fission from the core -- is lost through leaks, evaporation or chemical reaction. Unless the LOCA is somehow contained, the core overheats and barely controlled fission becomes a runaway chain reaction, leading to a core meltdown. That's what happened at Chernobyl.

The probability of a catastrophic accident is admittedly low. But the consequences are unacceptably large -- such as hundreds of early deaths from burns and acute radiation poisoning, and tens of thousands from cancers over decades, extensive contamination of the environment, and poisoning of crops, trees and animal life. The economic damage from Chernobyl, in which an estimated 65,000 people died from radiation-induced cancers, is $250 billion. If a Chernobyl were to occur in Germany, the damage would be 10 times higher -- an astronomical $2,400 to 6,000 billion, says an independent expert study. This will wipe out Germany's GDP.

It's wrong in principle to cap the liability for such large-scale damage. Doing so violates two vital safety tenets: the Precautionary Principle and the Polluter Pays Principle. The first says no activity with inadequately understood hazards should be undertaken. Under the second, those causing damage must fully compensate the public. These cardinal principles and the absolute liability notion have been upheld by the Supreme Court in many judgments as deriving from Articles 21 (right to life), and 47 and 48A (improving public health and safeguarding the environment).

In the Vellore Citizens Welfare Forum case (1996), the court held: "Once the activity carried on is hazardous or potentially hazardous, the person carrying on such activity is liable to make good the loss… irrespective [of] whether he took reasonable care…" This absolute liability extends to "the cost of restoring the environmental degradation…"

The nuclear liability bill violates these basic principles. It sets an artificially low limit on total liability for a nuclear accident ($300 million Special Drawing Rights or about Rs 2,300 crore) and an even lower Rs 500 crore on the operator. The difference is to be made up by the government -- you and me, who are not even remotely responsible for the mishap. This is outrageously unreasonable.

The bill must also be faulted for letting the suppliers and designers of nuclear equipment off the liability hook. The notions of strict liability and product liability demand that they must pay damages in case the equipment (eg the reactor) is poorly designed or manufactured. Equally obnoxious is the clause that the liability span be limited to 10 years: many forms of radiation injury, including cancer and genetic damage, reveal themselves only 20 years or longer after exposure.

Clearly, the bill is fatally flawed. It's designed to shield the nuclear industry from discharging its public responsibility. Its origins go back to two conventions: the rich-country OECD-sponsored 1960 Paris Convention on "third-party liability" and the 1963 Vienna Convention on Civil Liability for Nuclear Damage under International Atomic Energy Agency auspices. During the 1960s, official propaganda promoted nuclear power as safe, economical ("too cheap to meter"), abundant, and a means of freeing the world from fossil-fuel dependence.

The promise has been comprehensively betrayed. Not even a tenth of the projected increase in nuclear power has materialised. The US, once the world's leading nuclear-power nation, hasn't ordered a single new reactor since 1973. Nuclear power's contribution to global electricity generation is stagnant or falling -- while safe, non-polluting renewable like solar and wind energy are growing annually at 20 percent-plus.

Subsidising a hazardous technology like nuclear power was wrong even in the 1960s. It's grotesque to do so today when the technology is 60 years old and may have exhausted its potential. Global nuclear power generation cannot increase by leaps and bounds because there isn't enough uranium around. The 'next-generation' technology -- fast-breeder reactors, which theoretically produce more fissile fuel than they consume and conserve uranium -- has failed everywhere.

Nuclear power is inherently hazardous, because it involves high-pressure, high-temperature processes and great energy intensity. A nuclear reactor is a highly complex system, whose sub-systems are tightly coupled. A mishap in one sub-system gets instantly transmitted to others, potentially causing a runaway reaction. Nuclear power poses the radiation danger at every step. Such exposure takes place routinely even without accidents. The costs of the damage, including treatment, are hard to estimate.

Nuclear power generation leaves behind tonnes of radioactive waste which remain hazardous for thousands of years. Science hasn't found a safe way of storing wastes, leave alone disposing them of. Imagine a leak from a waste repository 100 years after a nuclear power plant (whose waste it stores) has run out of its economic life of 25-40 years. Who would be liable? Under the bill, not even the plant's operator. The public must pick up the tab.

India's experience with Bhopal should alert us to the danger of long-term industrial damage. A quarter-century on, the plant site and nearby water sources remain contaminated with toxic chemicals, including carcinogens. Nuclear materials are even more hazardous than chemicals. That's why developed countries like Germany, Japan, Austria and Sweden impose unlimited liability on nuclear operators and suppliers, and often demand a security deposit of the order of $3 billion.

However, the UPA has latched on to the 1997 Convention on Supplementary Compensation for Nuclear Damage sponsored by the International Atomic Energy Agency, as if it enjoyed wide acceptance. In reality, only 13 countries have signed the CSC and only four (Argentina, Morocco, Romania and the US) have ratified it. It cannot come into force unless five states, with a collective 400,000 MW nuclear capacity, ratify it. The IAEA is no impartial agency. Its mandate is to promote nuclear power as safe and economical. It has consistently trivialised the seriousness of Chernobyl and admits to less than 5,000 cancers.

The CSC is based on the Paris-Vienna model and only raises total liability to $986 million -- way short of what's needed. The sole justification offered for India's nuclear Bill is that without a low liability cap, no foreign nuclear operator will invest in India. This argument begs the question as to whether we need nuclear power at all, and whether we should violate safety and constitutional principles, and put a shamefully low value on the life of Indians to attract foreign investment. The honest answer is no. It won't change even if the Rs 500-crore operator liability is doubled or an all-reactor-wide insurance/compensation pool is created, as is being proposed.

The bill represents capitulation to US and Indian corporate pressure, and a retreat from the state's responsibility to protect citizens against hazards. The US, having given India the nuclear deal, is now furiously lobbying to extract nuclear contracts for American corporations. This must stop. The sooner we scrap the nuclear liability bill, the better for our safety.