A ripple effect that spreads throughout society

Citizen-led litigation against the nuclear industry has a long history dating back to the construction rush of the 1970s, when members of the public fought to stop nuclear plants from being built. These early lawsuits predominantly sought the revocation of construction permits, and once construction was complete, the focus shifted to seeking injunctions to halt operation. As of January 2021, there are currently around thirty such cases ongoing in Japan.

The impact of the accident at the Fukushima Daiichi plant has been striking. Prior to the accident, injunctions had only ever been successfully obtained in two cases, namely those granted in a high court judgement against the prototype reactor ‘Monju’ in 2003, and against Shika Reactor No. 2 at the district court level in 2006. Compare that to the post-Fukushima era, in which the courts have granted injunctions against the government and power industry in no fewer than six cases over the last ten years, forcing nuclear plants out of action. Of the many civil cases brought against the Japanese government and TEPCO to seek compensation for damages suffered in the Fukushima Daiichi accident, around half have been found in favour of the plaintiffs when the opponent is the government, and TEPCO have lost nearly every case.

The Monju case, which sought to cancel the operating permit of the experimental Monju fast breeder reactor, was launched in 1985. Although it took a full eighteen years, in 2003 the court finally found in favour of the plaintiffs. This decision was later overturned by the Supreme Court, but Monju was no longer a viable project, and in 2016 the decision was made to decommission the reactor after the Nuclear Regulation Authority (NRA), established in the wake of the Fukushima Daiichi accident, exposed safety failings at the plant. Kaido cites this as an example in which the justice system played an important role in a complex chain of events.

“The dangers of Monju that formed the basis of our case were never properly addressed. Although it may appear that Monju was the architect of its own failure after repeated accidents and mishaps, the fact remains that ordinary citizens stood up and fought the reactor in court, and were vindicated with complete victory at one stage. I believe that the extra exposure that this afforded was key to the plant being shut down before it ever really had the chance to operate.”

“If the time comes when the dangers of nuclear power come to be debated in the political arena and parliament agrees on a path to denuclearization and starts to codify this into law, then litigation will have served its purpose and will no longer be needed. But while the politicians refuse to steer us toward the path of denuclearization, litigation remains one of the most effective ways to further the anti-nuclear agenda.”

Kaido explains that the sea change in society that is now being reflected in the courts paves the way for major political decisions.

“Even before Germany announced a complete end to nuclear power following the Fukushima Daiichi disaster, there had been court cases which had successfully forced plants into permanent closure. It’s against that backdrop that German society and even politicians were able to agree on denuclearization as the way forward. Legal precedent provided a firm basis for the government to make a commitment to abandoning nuclear power. The judgements of the courts form the foundation for lawmaking and administration, and ultimately have the power to determine the direction of the entire country.”

Tugging on threads of justice from the past

In the wake of the Fukushima Daiichi accident, there was a fresh wave of enthusiasm for citizen-led legal action. Nearly every nuclear plant in Japan is now tied up with legal cases in one form or another. Kaido senses that the tide has turned in the courts.

The year 2020 saw two landmark verdicts. Sendai High Court recognized the liability of the Japanese government and TEPCO for the Fukushima Daiichi accident in what was informally known as the ‘Trial to reclaim our lost livelihoods’ (hereafter ‘Livelihood’), while Osaka District Court ruled that the government had acted illegally in granting operating permits for Reactors 3 and 4 at Kansai Electric Power Company’s Ohi plant.

“What makes the Ohi case so significant is that it marked the first time since the Fukushima Daiichi disaster that the courts have taken the public’s side in an administrative lawsuit. The argument in this case centered on the way that design basis ground motion (the maximum anticipated level of shaking in an earthquake) was calculated when determining the necessary seismic resistance of the plant. Obviously the victory is significant in itself, but what we should really focus on is that the reasoning for the judgement followed the framework of a Supreme Court verdict in a case concerning the Ikata nuclear plant back in 1992.”

The reasoning set out in the 1992 Supreme Court judgement on Ikata acknowledged a degree of discretion on the part of the authorities, stating as follows: “The court does not make its own scientific finding, but checks for unreasonable flaws in the state’s safety regulations and inspections, and finds the operating permit to be unlawful in cases in which errors of a nature that cannot be overlooked are found to be present.” The recent Ohi case seized on this point, the plaintiffs claiming that deficiencies in the government-ordained calculation method meant that sufficient seismic resistance could not be guaranteed. Demonstrating the state’s failure to meet its responsibilities of ‘ensuring safety’, as established in the court verdict on Ikata, proved to be the key to victory in the Ohi case.

The Ikata verdict also contained the important wording that “a serious disaster with the potential to endanger human life and health and cause the release of radioactive contamination into the environment must never be allowed to happen under any circumstances.” Although this may sound like common sense, the fact that the Supreme Court had stated it so clearly paved the way to victory years later, not only in the Ohi case but also the ‘Livelihood’ case.

Kaido maintains that there is no such thing as a ‘loss’ when nuclear power is on trial.

“The Ikata case sought revocation of the plant’s operating permit, but actually ended in defeat for the plaintiffs. But it was a definite stepping stone on the way to the later victories against Monju and Shika, as well as in the recent Ohi and ‘Livelihood’ cases. Even if the court does not go as far as shutting down a plant, every case has value in terms of setting legal precedent. Now and then we do see an outrageous court decision that ignores everything that has gone before, but history teaches us that even though many mistakes may be made on the way, justice prevails eventually.”

The next step in preventing a repeat of tragedy

Conversely, there are cases that Kaido feels have failed to prevent accidents. In his view, the greatest miscarriage of justice was a district court judgement in a case against the Hamaoka nuclear plant in 2007. Hamaoka is built directly above a tectonic plate intersection identified as being at high risk of a major earthquake, and was therefore considered to have some of the greatest safety vulnerabilities of any nuclear plant in Japan. The risk was so great that two months after the accident at Fukushima Daiichi, then Prime Minister Naoto Kan requested the plant to shut down.

In the Hamaoka case, experts laid out their scientific arguments relating to seismic resistance. The plaintiffs argued that the loss of both external power and emergency power generating capability could lead to meltdown of the reactor core. The judge rejected the plaintiffs’ case, stating “the situation you have described, in which multiple safety systems and emergency power generation fail simultaneously, does not warrant consideration.”

Four years later at Fukushima Daiichi, this apparently ‘unthinkable’ scenario played out almost exactly as the plaintiffs had speculated in the Hamaoka case. As he watched the disaster in Fukushima unfolding on the news, Kaido recalled the judgement on Hamaoka and felt as if all his hard work over the years had been in vain.

“After the Fukushima Daiichi disaster, it’s time to put an end to nuclear power once and for all” - Thus resolved Kaido in July 2011, when he established the National Liaison Group of Lawyers Against Nuclear Power with Hiroyuki Kawai, who had been the chief lawyer on the legal team in the Hamaoka case. Lawyers across Japan have spent the past forty years fighting the nuclear industry, but until recently they have been held back by the lack of an effective framework for information sharing and mutual cooperation between different legal teams. Hoping he could improve the situation, Kaido focused on building a well-organised network to allow like-minded legal professionals to draw on one another’s knowledge and resources, and thereby fight cases more effectively in the future.

Lawyers are experts at identifying and tugging on promising threads from past cases. The collaborative approach facilitated by Kaido’s network makes it easier to weave these individual threads into the fabric of an argument capable of convincing a judge. The firm base of legal precedent is steadily growing, and this will only help the cause in the fight going forward.

Taking the fight to both the civil and criminal courts

What is commonly referred to as the ‘TEPCO criminal trial’ was brought against three members of TEPCO’s former management by a citizen-led prosecution committee, on the premise that TEPCO’s negligence in adopting appropriate tsunami and earthquake countermeasures made the meltdowns at Fukushima Daiichi impossible to prevent. In September 2019, the first ever verdict was delivered in a criminal case arising from the Fukushima Daiichi disaster. Tokyo District Court returned a verdict of ‘not guilty’ for all three defendants. Kaido, who represented the victims of the accident in the trial, maintains that this verdict was deeply unjust.

“In effect, this verdict is saying ‘nuclear plants are not required to achieve a high standard of safety.’ If this were to set a precedent, we will see more accidents in the future. We have demonstrated the atrocious state of safety management at Fukushima Daiichi prior to the accident. Still, the fact that we had the opportunity to bring this important evidence to court has brought to light a lot of facts that would otherwise have remained in the shadows.”

In the public setting of the court, TEPCO’s failure to maintain an adequate culture of safety and responsibility was laid out and picked over by the lawyers. Although the criminal trial failed to secure a conviction, evidence brought to show that the earthquake and tsunami could have been foreseen was used again in the ‘Livelihood’ case in Sendai. This time it helped lead the plaintiffs to victory, once again demonstrating the value of collaboration and resource-sharing.

All this verdict means is that TEPCO’s former management has been exonerated from criminal liability for the disaster. Japanese law makes it clear that TEPCO must pay compensation to the victims of the disaster in any event, regardless of whether or not there is evidence of negligence. However, in the civil courts, the verdict of the ‘Livelihood’ case made it clear that TEPCO’s inability to forestall the accident was a direct result of negligence on the part of the company. A simple decision by management could have prevented the disaster just as, in the event, it enabled it – in other words, the accident was a manmade disaster. The court’s explicit acceptance of this point is hugely significant.

With the courts now regularly ruling against the Japanese government and TEPCO, the compensation schemes put in place by the government are also becoming ripe for reassessment in the national political arena. This has the potential to improve the situations of not only those who have been actively involved in litigation, but also of the vast majority of victims who are not in a position to fight legal cases. Whether criminal or civil, every piece of litigation against nuclear power forms part of an expanding oeuvre that has the potential to help safeguard the lives of everyone in society.

Entering the final stretch on the path to denuclearization

As of January 2021, only four nuclear reactors are operational in Japan. The reality is that nuclear power is being rapidly overtaken by renewables, and has become a moribund industry with little future as a viable source of energy.

“Although of course it remains important to keep stacking up victories one by one in the courts, the nuclear industry is already in terminal decline, and there is every chance it will disappear of its own accord. Opinion polls show that a steady seventy percent of the population believe that nuclear power is unnecessary. There is also a sense in society that we are already managing to get by just fine without the aid of nuclear power. I believe it’s just a matter of time. If we were to compare our fight to climbing Mt. Fuji, I’d say we’re about eight tenths of the way up.”

Kaido has spent a long forty years engaged in an uphill battle against the nuclear industry. Now, ten years after the triple meltdown at Fukushima Daiichi, the summit has never looked closer.