With accident-liability protection constituting another layer of state subsidy to foreign reactor vendors, the spectre of dozens of Enrons in the nuclear-energy sector is real.

The controversial Indo-U.S. nuclear deal was pushed through without building “the broadest possible national consensus” that the prime minister had promised. Certain give-and-take is inevitable in any deal. But this deal has picked up such onerous conditions that it now threatens to cast a perpetual political albatross around India's neck. To implement the deal, the government is now seeking to burden the Indian taxpayer on multiple counts — from state subsidy in the form of liability protection and acquisition of land on behalf of foreign vendors to guaranteeing subsidised price of electricity from the high-cost foreign reactors to be imported. The result is likely to saddle India with dozens of Enrons in the nuclear-energy sector.

The deal's energy benefits, in fact, are years away and will come with heavy economic costs. One reminder of the costs is the proposed nuclear-accident liability legislation. The revised bill that has emerged from the parliamentary standing committee increases, not lessens, the load on the taxpayer. The bill actually seeks to enshrine a new principle in international law: Profits are private, accident-related liabilities are all public.

While U.S. law permits “economic channelling,” but not “legal channelling,” of liability, thereby allowing criminal proceedings and other lawsuits against any party in courts, the revised Indian bill channels all financial and legal liability to the Indian state operator, effectively indemnifying foreign reactor vendors. Nuclear safety can hardly be enhanced by freeing foreign suppliers upfront from responsibility for accidents caused by design flaws, pinning liability singly on the state operator, and vesting the right of recourse only with the operator by shutting out victims of accident.

Nuclear park

A bigger indicator of the energy-related costs, however, has completely escaped public attention. The government has earmarked a nuclear park exclusively for each of the four favoured foreign vendors. GE-Hitachi is to build six reactors at Kovvada (Andhra Pradesh), Westinghouse another six at Mithi Virdi (Gujarat), Areva a further six at Jaitapur (Maharashtra), and Russia's Atomstroyexport six more at Kudankulam (Tamil Nadu) and an additional four later at Hirapur (West Bengal).

The reservation of a nuclear park for each foreign vendor even before the terms of a reactor contract have been negotiated is anti-competitive and unparalleled. To add to the pampering, India is also acquiring land on behalf of these firms.

Despite an inherently anti-market process, the government contends the contracts will be based on competitive pricing. But by reserving a park solely for each foreign vendor, it has undercut its own bargaining leverage. Just like the arms deals of recent years, the reactor contracts are all set to be signed without open bidding. Indeed, since the deal was unveiled in 2005, India has signed billions of dollars worth of arms contracts with America on a government-to-government basis, although the U.S. has no public sector.

Worse yet, foreign firms are being freed from the task of producing electricity at marketable rates. The reactors will be run by the state operator, with the Indian taxpayer subsidising the high-priced electricity generated. It may take nearly a decade before the first foreign reactor under the nuclear deal comes on line, if one goes by Areva's record in Finland and Atomstroyexport's at Kundankulam, where completion of a twin-reactor station is years behind schedule.

Technology penalties

Yet another jarring aspect is that despite the deal being in force internationally, India continues to battle major technology sanctions. The deal has not lifted all technology controls even in the civilian nuclear field: In late June, the G-8 countries renewed their ban on sale of civilian enrichment and reprocessing (ENR) technology and equipment, even under international safeguards, to a non-NPT state like India. The Indian foreign secretary has described as “anachronistic” the continuing U.S. export controls against India that extend beyond the nuclear realm to cover advanced technologies and target civilian entities like ISRO. The PM, however, had triumphantly announced in 2008 that the deal “marks the end … of the technology-denial regime against India.”

The idea to build energy “security” by importing foreign fuel-dependent power reactors is nothing but a money-spending boondoggle likely to leave India insecure and buffeted by outside pressures. That spectre has been underscored by the four big “No”s for India embedded in the final deal: No binding fuel-supply guarantee to avert a Tarapur-style fuel cut-off; no irrevocable reprocessing consent; no right to withdraw from its obligations; and no right to conduct a nuclear test ever again.

The government has shied away from discussing even the economics of producing electricity from foreign reactors. India's heavily-subsidised indigenous nuclear-energy industry is supplying electricity at between 2.70 and 2.90 rupees per kilowatt hour from the reactors built since the 1990s. That price is far higher than the cost of electricity from coal-fired plants. But electricity from foreign-built nuclear reactors will be even dearer. That, in effect, will increase the burden of subsidies on the Indian taxpayer, even as the reactor imports lock India into an external-fuel dependency.

The revised accident-liability bill does well to double the permissible time period for filing accident-related claims against the state operator. Increasing the compensation fund is also welcome, although there is no need realistically for minimum or maximum cap on liability when the Indian state is making itself wholly responsible for damages from an accident. But most other changes that have emerged from the standing committee's deliberations or from the government's disingenuous deal-making with the BJP do not address the fundamental concerns, which centre on relieving foreign vendors of direct liability for any accident and abridging the legal rights of victims.

Indemnifying foreign suppliers helps to significantly lower their costs and risks of doing business in India. But in extending such protection, the bill aims to overturn the doctrine of “absolute liability” laid down by the Supreme Court that prevents “enterprises” (including the operator, supplier, builder and owner) from wriggling out of their liability by claiming exemptions, such as alleged sabotage. The Supreme Court held after the Bhopal gas disaster that, “The enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-à-vis the tortious principle of strict liability.” By that standard, foreign reactor vendors would be fully liable for any wilful act or gross negligence that causes a nuclear accident.

The bill, however, casts all liability on the state operator and the federal government. The liability bill thus is a major liability for the Indian taxpayer.

A way out

The sensible course of action in nuclear energy would be for the government to let foreign vendors acquire land on their own at designated sites, build and operate reactors, and sell electricity to distribution companies without the Indian taxpayer in any way being burdened. If foreign firms produce nuclear energy at competitive prices, the benefits for India will be real. Even the cap on accident liability can be arranged by emulating the U.S. example so that the Indian taxpayer is the insurer of last resort, not of first resort. For each major radioactive release, America's Price-Anderson liability system provides more than $10 billion in total potential compensation through a complex formula that includes insurance coverage carried by the reactor that suffered the accident, “retrospective premiums” from each of the covered reactors in operation in the U.S., and a five per cent surcharge. The liability burden thus falls on the private sector.

The Indian government, however, has no intention to create an open, competitive field because that would unmask and obstruct the generous state subsidies it is offering for nuclear-generated power. It thus told Parliament categorically on August 12 that it “does not intend to change the related provision of the Atomic Energy Act, 1962, for private participation” in nuclear energy.

Creating an artificial market with no-strings subsidies and electricity supply at state-supported rates is no prudent way to meet energy needs. The proposed arrangements actually seek to create a win-win situation for foreign vendors by ensuring there is no downside to their business. By rigging commercial terms in favour of select foreign suppliers, the arrangements, in effect, promote unfair business practices and cartelisation.

(Brahma Chellaney is the author, among others, of Nuclear Proliferation: The U.S.-India Conflict.)

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