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Nuclear Power Facing a Tsunami of Litigation

Shizume Saiji [Profile]

[2018.03.12]

In March 2011, a magnitude-9 earthquake triggered a giant tsunami that crippled the cooling system at the Fukushima Daiichi Nuclear Power Station, leading to a catastrophic accident that continues to reverberate seven years later. Science reporter Shizume Saiji surveys the legal fallout from the meltdown, from claims against the government and the operator to a raft of actions aimed at permanently shutting down the nation’s nuclear power industry.

Legal fallout from the March 2011 accident at Fukushima Daiichi Nuclear Power Station continues, as dozens of lawsuits and injunctions make their way through Japan’s judicial system. The final rulings could have a profound impact on the government’s energy policy and approach to risk mitigation.

Court cases stemming from the meltdown at Fukushima Daiichi can be divided broadly into two categories. In the first are efforts to assign responsibility for the accident, including one high-profile criminal case and numerous civil suits by victims seeking damages from the government and owner-operator Tokyo Electric Power Company. The second group consists of lawsuits and injunctions aimed at blocking or shutting down operations at plants other than Fukushima Daiichi (whose reactors have been decommissioned) on the grounds that they pose a grave safety threat. In the following, we briefly survey these cases and their implications.

A Foreseeable Danger?

According to lawyer Managi Izutarō, who is handling the largest class-action suit against TEPCO and the government, about 30 such cases are currently moving through courts around the nation. Most of the plaintiffs are Fukushima evacuees who filed suit in the districts to which they fled after the accident.

Meanwhile, TEPCO’s former chairman and two former vice-presidents are facing charges of professional negligence resulting in death and injury in a criminal case currently before the Tokyo District Court. Tokyo prosecutors initially declined to bring charges, but in an unusual reversal, they were overruled by a prosecutorial review panel composed of ordinary citizens.

In all of these cases, the pivotal issues facing the court are (1) whether TEPCO and the state could have foreseen the danger posed to the Fukushima plant by a tsunami on the order of that triggered by the Great East Japan Earthquake, and (2) whether they could realistically have prevented a serious accident through risk-mitigation measures. The “state” in this case is the defunct Nuclear and Industrial Safety Agency (NISA), the regulatory body formerly in charge of the inspection and licensing of nuclear power facilities.

Construction of Fukushima Daiichi Nuclear Power Station began in 1967, when the government’s ambitious nuclear energy development program was shifting into high gear. Seismology and tsunami simulation have advanced considerably since those days, but at the time, the maximum height of any potential tsunami relevant to the Fukushima Daiichi site was estimated at a little more than 3 meters. When the facility was built, in other words, there was no way for TEPCO or the government to foresee that waves 10–15 meters in height could one day inundate the plant.

However, as scientists continued to collect and analyze data on earthquake and tsunami activity around Japan, their thinking evolved. In July 2002, a government panel of seismologists issued a report estimating a 20% chance that a magnitude-8 earthquake would trigger a dangerous tsunami off the coast of northeastern Japan within the next three decades. That August, NISA asked TEPCO to conduct a tsunami simulation for Fukushima Daiichi and other plants on the basis of that report, but TEPCO refused, and NISA did not press the matter.

When TEPCO finally did conduct such a simulation in 2008, it concluded that a major earthquake could trigger a tsunami as high as 15.7 meters, tall enough to flood the Fukushima Daiichi plant. However, the utility took no action to mitigate the risk (as by building up the facility’s seawalls or taking other measures to protect backup generators), and it failed to report the findings to NISA until early 2011, just weeks before the disaster.

Complacency and Opacity

In the wake of the Fukushima accident, NISA (since replaced by the Nuclear Regulation Authority) was faulted for its lack of independence. The agency was under the authority of the Ministry of Economy, Trade, and Industry, which promotes the use of nuclear power, and officials maintain that its regulatory powers were limited. In addition, a closed, inbred environment encouraged unhealthy ties between NISA and the electric power industry. As a consequence, NISA had fallen into the habit of accommodating and supporting the utilities instead of overseeing them. TEPCO, for its part, had developed a deeply rooted culture of denial, habitually concealing information that might supply ammunition to anti-nuclear activists or fuel fears among the local citizenry. The company brushed off the warnings, convincing itself that the danger from a giant tsunami was purely hypothetical.

So far, district courts have reached decisions on three major class-action suits, and in each case they have agreed with the plaintiffs that the state and TEPCO could have foreseen the danger from a major tsunami once the 2002 report on earthquake risks was released. Two of the district courts, Maebashi and Fukushima, found both the state and TEPCO negligent for failing to prevent the meltdowns. The Chiba District Court, on the other hand, dismissed claims against the state on the grounds that the government was focusing on earthquake safety at the time and may not have been able to formulate effective measures in time to protect Fukushima Daiichi against the March 2011 tsunami. With the government and TEPCO girding up to appeal the lower courts’ decisions, the cases could drag on for years.

The final verdicts could have important ramifications in a country prone to natural disasters. Despite the scientific advances of the last few decades, our ability to predict major earthquakes, tsunami, and volcanic eruptions remains extremely limited. How can we ensure that the design and operation of existing nuclear power plants reflect the latest scientific assessments of long-term risks? Are the government and industry responsible for guarding against catastrophic events, however low their probability?

A Tsunami of Lawsuits

Attorney Managi Izutarō estimates that more than 10,000 plaintiffs are currently involved in class-action suits against TEPCO and the state. He represents 4,200 victims in the largest of these cases so far. Managi argues that allowing TEPCO to keep Fukushima Daiichi operating after learning of the risks from a tsunami was “like giving an airline permission to fly an unsafe jetliner.”

In its ruling on Managi’s case last October, the Fukushima District Court agreed that both TEPCO and the state were negligent and ordered damages paid to a majority of the plaintiffs. But the victims and their lawyers deemed the amount and scope of the damages inadequate and opted to appeal. TEPCO and the state have appealed the ruling as well.

The case now moves to the Sendai High Court. “Ultimately, we’re demanding that Fukushima Prefecture be restored to the way it was before the nuclear accident,” Managi explains. “At the same time, we’re fighting to end the use of nuclear power.”

Managi stresses the importance of mobilizing a large number of victims. “Unless you get together a big group of plaintiffs, their case won’t resonate with the judges,” says Managi. “The number of people involved in litigation and the intensity of public sentiment are key. I believe the real battle takes place outside the courtroom.”

In organizing victims into large class-action suits, Managi and others lawyers are following the same playbook that helped turn the tide against big industrial polluters in the 1960s and 1970s, when victims of Minamata disease (mercury poisoning) and itai-itai disease (cadmium poisoning) succesfully banded together to seak legal redress. Whether the current movement will have a comparable impact remains to be seen.

Lawyer Managi Izutarō is representing 4,200 former Fukushima residents in a class-action suit against the state and Tokyo Electric Power Co. (Photograph courtesy Shizume Saiji)

  • [2018.03.12]

Science reporter, Kyodo News. Born in Chiba Prefecture in 1973. Joined Kyodo News in 1996. Appointed assistant editor for nuclear issues in 2017. Has reported extensively on nuclear energy, earthquake preparedness, and the Fukushima Daiichi accident. Author of the series “Hyōryū suru sekinin: Genshiryoku hatsuden o meguru rikigaku o ou,” (Drifting Responsibility: Understanding the Dynamics of Nuclear Power) in the journal Kagaku (Science).

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