Nuclear Court Cases in Japan Nuke Info Tokyo No. 104

CNIC frequently refers to legal issues in its articles about the campaigns being waged against nuclear facilities in Japan. We thought readers might be interested in some background on the various legal challenges that have been made over the years. After some introductory comments about the legal system in Japan (which is probably very similar to that in other countries), this article will discuss some specific cases and general trends that can be discerned.

Legal context
There are various different types of litigation that can arise in relation to nuclear facilities. One type is where residents/citizens demand that the construction or operation of a nuclear facility be stopped. This type can be broken down into two sub-types: administrative cases, where the government is the defendant and the petitioner demands that the approval for the facility be annulled, and civil cases, where the company is the defendant and the petitioner demands that construction and/or operations be terminated.

In contrast to these types, there are also cases where citizens are prosecuted. These might include civil cases where property rights are challenged, or criminal cases relating to the actions of activists at the site (for example illegal entry, or violence). In the case of criminal suits, the Public Prosecutor lays the charges.

Some cases are heard by a summary court, but the majority of cases are heard by a District Court. If either party is dissatisfied with the decision, they may appeal the case to the regional High Court. If there is still dissatisfaction, it is sometimes possible to take the matter to the Supreme Court, but this is only allowed under certain circumstances: where there is a Constitutional issue involved, where a particularly important law is involved, or where the decision goes against a Supreme Court precedent.

Administrative Cases
Before an action can be filed challenging governmental approval for a nuclear facility, an objection must be lodged within 60 days of the granting of that approval. The objection is lodged with the agency which granted the approval. If the objection is dismissed, or if it is not responded to within three months, it is possible to proceed with court action.

Major examples of administrative cases are listed in table 1.

A glance at this table will reveal that these cases have all taken a long time. The longest one started way back in 1973 and reached a final conclusion in 2004. The Supreme Court has handed down a decision in only three cases and two of these decisions were handed down at the same time.

Unfortunately, not one of the above cases has resulted in a final victory for the citizens, although the Monju Fast Breeder Reactor case may prove to be the exception to the rule. However, the above Supreme Court decisions were extremely useful in the case against Monju. (In that case the Nagoya High Court ruled that the license was invalid – see discussion below). According to the Supreme Court, the approval is deemed to be illegal if, “in the light of current scientific and technological standards”, the assessment standards are unreasonable, or if there are “flaws or blunders that cannot be overlooked” in the safety assessment process.

The reason why there was no appeal in the Ikata-2 case was, in the words of the group of petitioners who conducted the case, “because we don’t expect a better judgment from the current judges”. This was the only case in which citizens represented themselves without the aid of a lawyer. It is probably hard to imagine just how challenging this would be, but despite the difficulty of their task, they managed to extract a recognition that there were mistakes in part of the safety assessment.

The Monju case: the only citizen victory
The Monju decision did not ‘annul’ the license approval. The citizens were unable to demand this, because they had not lodged the abovementioned objection. Instead the decision ‘invalidated’ the approval. It is possible to sue to have the approval invalidated, even if an objection has not been lodged, but compared to annulment of the license approval the legal breach must be more serious.

The Monju case was initiated in 1985. It was simultaneously an administrative case, in which the government was accused of granting an invalid license approval, and also a civil case, in which residents demanded that the Power Reactor and Nuclear Fuel Development Corporation (PNC) (now Japan Nuclear Cycle Development Institute (JNC)) terminate construction and operation of the facility. The reason why two cases were brought simultaneously was that it was uncertain whether the accusers would be granted status to bring the case under the very strict conditions of an ‘invalid license’ case.

In fact, in 1987 the Fukui District Court dismissed the case on the grounds that they didn’t have status. This was appealed to the Nagoya High Court, which accorded status only to those who lived within a 20 km radius of Monju. The citizens who were denied status in turn appealed to the Supreme Court, while the government appealed against the decision to grant status to people within 20 km. In 1992 the Supreme Court ruled that people living within a 60 km radius (i.e. all accusers) were eligible and returned the case to the full Fukui District Court. The Supreme Court ruled that these people were “people who live in an area which, in the event of a disaster etc. that could occur as a result of a blunder or flaw [in the safety assessment], would be expected to sustain direct and serious damage.”

The Fukui District Court reconsidered their case and in 2000 ruled against them. The residents were dissatisfied with this ruling and appealed to the Nagoya High Court, which in 2003 ruled in their favor, invalidating the Monju license approval. The government then appealed to the Supreme Court and in December 2004 the Supreme Court decided that it would hear the case. The case is scheduled to begin in March 2005 (see News Watch).

In regard to the civil action, the Fukui District Court ruled against them in 2000, at the same time as it made its decision on the administrative case. The citizens group appealed, but when the High Court ruled in their favor on the administrative case, they withdrew their appeal.

Civil Cases
Recently civil suits have been the main type of litigation involving nuclear power plants (bearing in mind that Rokkasho is not a power plant). This isn’t necessarily because the people bringing the suit have failed to lodge an objection as required for administrative cases. Administrative cases can only be argued within the framework of the question “was the license approval legal?” There was even a case where the court found that the approval was legal, but went on to say, “The question of whether or not the nuclear power plant is actually safe or not is beside the point.” One reason for the preference for civil cases is dissatisfaction with decisions such as this. There is sometimes also a desire to lock horns directly with the company constructing and operating the facility in question.

Major examples of civil cases are listed in table 2.

The cases demanding the termination of operations each have their own peculiarities. The Fukushima II-3 case followed an accident involving a recirculation pump in 1989. It was an attempt to stop the company from recommencing operations while pieces of metal were left in the reactor and after having simply patched up the component. The Takahama action was an attempt to prevent reactor number 2 from being restarted after a routine inspection discovered problems in 46% of the pipes in the steam generator. The generator was subsequently replaced in its entirety. In the latter of these cases, despite rejecting the petitioners’ challenge, the court warned of the danger of the pipes bursting. No appeal was lodged.

In the Tomari case, which demanded the termination of both construction and operation, the court suggested that the possibility of an accident couldn’t be dismissed and that the problem of the disposal of radioactive waste was unresolved. In its verdict the court said, “Ending nuclear power generation is one available option.” The petitioners concluded that they had extracted some significant admissions from the court and decided against launching an appeal. The Shimane suit is based upon the discovery of an active fault near the nuclear power plant. Similarly, the petitioners in the Hamaoka case are calling for the plant to cease operations because the plant is located on the predicted center of the next great Tokai earthquake.

There have been three compensation cases related to exposure to radiation (table 3).

Other than the cases discussed here, there have been many other civil cases involving nuclear facilities. Examples include a claim for access to information in regard to transport of nuclear fuel and claims over property rights at sites for proposed nuclear facilities.

Criminal Cases
There have also been many criminal cases, but they weren’t specifically related to nuclear power, so they are not discussed here.

Conclusion
The courts are not insensitive to public opinion in the decisions they hand down. Looked at from that angle, one would expect citizens and residents to chalk up a few wins in future. We wait with bated breath for the Supreme Court’s decision in the Monju case. If the High Court’s decision is endorsed, the approval to build Monju will become invalid. (It will still be possible to reapply for a license, but it won’t be possible to reopen the plant until that license is forthcoming.) However, even in those cases where the residents/citizens have lost, they have managed to extract masses of useful documents from the power companies and the government. We should also not forget that the court cases, via the mass media, have drawn attention to the issues and thus helped to shape public opinion to become more critical of nuclear energy.

Nishio Baku (CNIC Co-Director)