As reported briefly in the last edition of NIT, there was an important legal victory for nuclear activists in Japan on March 9th this year when the Otsu District Court issued a provisional injunction ordering Kansai Electric Power Company (KEPCO) to shut down its Takahama Units 3 and 4. This was the first time a utility had been ordered to shut down an operating reactor. Both Takahama units had of course passed the new safety regulations, but the judges recognized the plaintiffs’ claims that the reactors were a threat to their safety. In this article we explain the strategies taken by anti-nuclear activists in the Japanese legal system, especially post-Fukushima, and the significance and possible future impacts of court cases in the mission to end nuclear power generation in Japan.
There are various 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 divided 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.
Most 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.
Japan’s first court case against a nuclear facility, launched in 1973, was an administrative case demanding the opperating license for the Ikata No. 1 reactor in Shikoku be cancelled. In the subsequent five years, three administrative cases were raised.
Before an action can be filed challenging an operating license for a nuclear facility, an objection must be lodged within 60 days of the granting of that license.with the agency which granted the license. (In the Ikata No. 1 case, the objection was lodged in 1972.) If the objection is dismissed, or if it is not responded to within three months, it is possible to proceed with court action.
It is also possible to file a lawsuit to demand that the operating license be declared invalid without going through these procedures, after the 60 day period has lapsed, but conventionally, constituting such a lawsuit is more difficult when the license has been granted and the reactor is already operating.
From the 1980s on, civil suits have been the main type of litigation involving nuclear power plants. 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.
There have been court cases raised by former nuclear plant workers claiming damage compensation from their former employers, including power companies. There has also been a case filed by a former nuclear plant worker against the Labor Standards Supervision Office, claiming eligiblity for workers’ compensation. This court case, raised by Ryusuke Umeda, is discussed in the News Watch section of this NIT.
On the other hand, an electric power company has filed a strategic lawsuit against public participation, in which the company, as a plaintiff, is claiming a large sum of money as damage compensation from defending individuals. Chugoku Electric Power Company, which plans to build Kaminoseki Nuclear Power Plant, is suing four individuals for damages to the amount of 48 million yen (later reduced to 39 million yen) because “they interfered with the preparation work required for plant construction.” The lawsuit was filed in the Iwakuni Branch of the Yamaguchi District Court in December 2009, and no ruling has been issued yet.
A noteworthy fact concerning the post-Fukushima court actions filed after March 11, 2011 is that administrative litigation along with civil cases has become more common. Civil cases demanding power companies stop running nuclear facilities, are filed alongside administrative cases demanding that the governmental Nuclear Regulation Authority (NRA) cancel operating licenses already granted, or affirm the invalidity of the license, or force power companies to stop using their nuclear facilities. While administrative litigation in the 1970s raised objections to the operating licenses and then proceeded to file lawsuits demanding the cancellation of the licenses, recent actions seem to opt for including the national government, calling it to court, along with the power companies.
On April 14, 2016, a lawsuit was filed in the Nagoya District Court demanding that the NRA not approve Kansai Electric Power’s operation of Takahama Nuclear Power Plant Units 1 and 2 beyond 40 years of service. If another power company applies for the continued operation of reactors older than 40 years, a similar lawsuit will be filed.
The plaintiffs are not only local residents or citizens. On April 3, 2014, the City of Hakodate, Hokkaido, filed a lawsuit in the Tokyo District Court, demanding that the construction and operation of the Ohma Nuclear Power Plant be suspended, its installment approval be annulled and the Electric Power Development Company (J-Power), the would-be operator of the plant, be forced to stop its construction. The Ohma plant is being constructed in Ohma Town, Aomori Prefecture, just across the Tsugaru Strait from Hakodate. In another court case, a municipality was sued: on December 2, 2008, a lawsuit was lodged against Yamaguchi Prefecture by plaintiffs demanding it to annul the license granted for reclaiming public water bodies to prepare the premises for the planned Kaminoseki Nuclear Power Plant. The demand of the lawsuit has been changed to affirming the expiry of the license. The plaintiffs of this lawsuit include rare wild species in the local habitat: black finless porpoises (Neophocaena phocaenoides) and Japanese murrelets (Synthliboramphus wumizusume). Thus this lawsuit is called a “rights of all living nature litigation,” of which there are also others in process.
A principal lawsuit may take a long time. In addition, even if a lower court rules that the operation of a nuclear power plant be suspended, the plant actually does not stop until the ruling becomes final and binding in a higher court. While litigation is pending, a nuclear accident might occur, with disastrous results. To prevent this, a provisional injunction is filed to suspend operation of the nuclear facilities; if the court issues a provisional injunction, the operation can be stopped immediately even if the decision is issued by a lower court. The operation cannot be restarted until the company raises an objection to the same court and their objection is accepted, or until a higher court to which the company appeals when the lower court rejects the objection, overturns the injunction, or until the principal lawsuit rejects the demand for cancelling operation or construction.
A provisional injunction is a powerful order. If the injunction is overturned, however, the power company may claim compensation for the losses incurred by the suspension. Those who file for a provisional injunction are placed under psychological pressure because they may have to pay huge sums of money to the power company. Accordingly, in some cases, a small number of people who are aware of the possible damage compensation claim, apply for a provisional injunction, while a larger number of plaintiffs together file the principal lawsuit. In one case when a power company mentioned the possiblity of claiming damage compensation, the National Network of Counsels in Cases against Nuclear Power Plants issued a letter of protest (Hiroyuki Kawai, one of the Network’s Co-directors, is a member of CNIC’s board of directors, and Yuichi Kaido, the other Co-director, is a CNIC auditor).
Regrettably, there have been no court cases in which a ruling or judgment that suspended the operation of nuclear power plants or nuclear fuel cycle facilities, or affirmed the invalidity of a nuclear reactor installment approval, became final and binding. On May 21, 2014, the Fukui District Court delivered a judgment that KEPCO’s Ohi Units 3 and 4 should be stopped (NIT No. 160), and the power company has appealed to the Nagoya High Court Kanazawa Branch, Ishikawa Prefecture. This is the only case in which a final ruling has not been established. Back on January 27, 2003, the same Kanazawa Branch delivered a ruling affirming the invalidity of the license for Japan Atomic Energy Agency’s fast breeder reactor Monju (NIT No. 93), but the ruling was overturned by the Supreme Court on May 3, 2005. On March 24, 2006, the Kanazawa District Court issued a decision that Hokuriku Electric Power Company’s Shika Unit 2, located in Ishikawa Prefecture, should not be operated (NIT No. 112), but this decision was reversed by the Nagoya High Court Kanazawa Branch on March 18, 2009.
Among the provisional injunction cases, the Fukui District Court issued an injunction on April 14, 2015 that KEPCO’s Takahama Units 3 and 4 should not be restarted (NIT No. 166). However, on December 24 in the same year, accepting the company’s protest, another panel of judges at the same court overturned the injunction. The three judges on the panel that reversed the injunction used to belong to the Supreme Court Secretariat, which is a gateway to elite judges. The May 2016 issue of the pro-nuclear magazine Energy Forum carried a revealing note: “Transferring such elite judges to the Fukui District Court was unprecedented.”
It is hoped that more decisions and provisional injunctions in favor of reactor suspension will be issued and that they will become final and binding. The March 15, 2016 edition of the Denki Shimbun, a pro-nuclear newspaper, expressed alarm regarding the court ruling on Takahama, stating: “Nuclear policy, the basis of energy security, may be suspended by the decisions of mere district courts.” The newspaper said that we can expect more of these cases in the future, implying that this would lead to increased instability in the nuclear industry. The Otsu District Court’s provisional injunction marked a new milestone, indicating that such judgments will perhaps become more common.
In addition, even in those cases where the residents/citizens have lost, they have managed to extract masses of useful documents from the power companies and government. We should also not forget that these court cases, via the mass media, have drawn attention to the issues and thus helped shape public opinion to become more critical of nuclear energy.
(Baku Nishio, Co-Director, CNIC)