Institute of Comparative Law早稲田大学 比較法研究所



日本法トピックス「時の話題」 No.3 “Argument for the Exclusion of Civil Litigation from Nuclear Power Plant Litigation” (首藤重幸(比較法研究所研究所員、法学学術院教授))

Argument for the Exclusion of Civil Litigation from Nuclear Power Plant


Professor Shigeyuki Suto

(Research Staff, Faculty of Law)

(on 9 October 2016) 

1. Rationale for the argument for the exclusion of civil litigation: In Japan, there are two litigation methods available for citizens to prevent the construction or operation of a nuclear power plant: administrative litigation (defendant: now the Nuclear Regulation Authority) and civil litigation (defendant: an energy company). Many nuclear power plant litigations instituted prior to the accident at the Tokyo Electric Power Company (TEPCO) Fukushima Dai-ichi Nuclear Power Plant in March 2011 (hereinafter, “Fukushima Nuclear Power Plant Accident”) were administrative litigations, but since the Fukushima Nuclear Power Plant Accident, most have been civil litigations. And when courts began to make decisions to halt the operation of nuclear power plants in civil litigation actions, academic theorists and members of the economic world suddenly began to argue for the exclusion of civil litigation from nuclear power plant litigation. This marked the first appearance of the argument for the exclusion of civil litigation during the long history of nuclear power plant litigation in Japan.

2. Situation in Japan following the Fukushima Nuclear Power Plant Accident: The majority of the citizens of Japan are opposed to the restarting of nuclear power plant operation even now, five years after the Fukushima Nuclear Power Plant Accident. But the LDP Government that became the ruling party as a result of a transfer of political authority since the accident has advocated a policy of using atomic energy, and it decided to restart the Takahama Nuclear Power Plant, the Sendai Nuclear Power Plant, and the Ikata Nuclear Power Plant (5 of 44 reactors in Japan) starting in 2015 (although the Takahama Nuclear Power Plant is now shut down pending a judicial decision).

On January 14, 2016, which was about five years since the Fukushima Nuclear Power Plant Accident of March 2011, the total number of residents of Fukushima Prefecture who were still evacuees as a result of the nuclear power accident stood at 99,000, comprising voluntary and mandatory evacuees. A report by the Fukushima Nuclear Accident Independent Investigation Commission (NAIIC) reconfirmed that the task of clarifying the causes of the accident had not yet been completed. While pro-nuclear advocates support the tsunami-caused theory, others vigorously argue for the earthquake-caused theory, which holds that the progress of the accident to the severe-accident stage was started by the earthquake that preceded the arrival of the tsunami (in Japan, which is an earthquake-prone country, the earthquake-caused theory is inconvenient for pro-nuclear advocates). Among the litigations (civil litigations) with energy companies as defendants instituted to stop the operation of nuclear power plants since the Fukushima Nuclear Power Plant Accident, the Fukui District Court Decision that stopped the restarting of No. 3 and No. 4 reactors of the Oi Nuclear Power Plant (May 21, 2014), and the provisional injunction by the Otsu District Court stopping operation of the No. 3 and No. 4 reactors of the Takahama Nuclear Power Plant (No. 3 reactor was operating) (March 9, 2016) claimed that one reason for not approving the operation of nuclear power plants is that it is impermissible to operate a nuclear power plant while the cause of the Fukushima Nuclear Power Plant Accident is still not clearly understood.

3. Argument for nuclear power civil litigation exclusion: It is noteworthy that as the principal form of litigation instituted as nuclear power litigation shifted to civil litigation, the view that it should be excluded from litigation intended to stop nuclear power plant operations appeared.

For residents to undertake administrative litigation to demand the prohibition of the construction or operation of nuclear power plants, an administrative organization with approval authority must corroborate the following two points (the investigation method has been established by the Supreme Court decision regarding the Ikata Nuclear Power Litigation (administrative litigation), but there has been a fierce controversy concerning the understanding of the most advanced knowledge and the rationale for the methods used).

[1] That general investigation standards prepared to give authority to install a nuclear reactor reflect the most advanced scientific knowledge.

[2] That methods that are procedurally not unreasonable in an actual administrative process that has been approved must satisfy the investigation standards.

In contrast, the responsibility for corroboration by an energy company defendant when using the investigation method of a nuclear power civil litigation contradicts this judicial decision. First, it is considered to be sufficient for the energy company to confirm that there has been an administrative judgment that conforms to approval investigation standards. Second, it demands corroboration of safety standards that differs from that of administrative litigation, including matters not covered by the investigation standards (for example, resident evacuation plans). In the cases of nuclear power civil litigations instituted since the Fukushima Nuclear Power Plant Accident, judgments in the former situation do not approve halting the operation of nuclear power operations, while decisions taking the latter position do approve halting such operations. In order for the argument for the exclusion of civil litigation to be actualized as a legal system, legal grounds are required, and under the present circumstances, in which these do not exist, this assertion is an “argument for new legislation.” But I think that this argument for exclusion is intended to achieve the following aim. Namely, if theoretically it is not intended to achieve exclusion by establishing the legitimacy of the argument for exclusion, it is a “lever,” with the important role of inducing the interpretive theory that it is sufficient if corroboration by the defendant (an energy company) in civil litigation to prohibit nuclear power plant operation conforms to the approval standards set by the Nuclear Regulation Authority. And because this corroboration method is identical to and duplicates that applied in nuclear power administrative litigation, it reverts consequently to the argument for nuclear power civil litigation exclusion that considers civil litigation to be meaningless.

Moreover, the exclusion of civil prohibition litigation under the Nuclear Energy Act of Germany and its practical exclusion in other industrialized countries are considered to be authoritative grounds for theoretical justification of the argument for civil litigation exclusion. And through revisions to nuclear power-related laws made since the Fukushima Nuclear Power Plant Accident (formation of the Nuclear Regulation Authority, legislating regulatory standards, etc.), a national system that allots authority and responsibility to administrations, not to judicatory power, to ensure the safety of nuclear power production in Japan has been adopted, so judicial reviews should be constrained.

But the argument for exclusion is, at this time, criticized as lacking persuasive force because it ignores differences in administrative systems and legal systems that are the foundation of the exclusion systems in other countries. Even regarding adoption of a “national system,” such discussions have not reached the legislation stage.

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