Judicial Control Over Acts of Administrative Omission: Environmental Rule of Law and Recent Case Law in Japan

Abstract

Judicial control of administrative acts of omission is indispensable for ensuring sustainable development. Despite advancements of environmental legislation, deficient implementation is a serious problem in many countries. This issue grows in importance, especially because in the field of environmental law the executive branch is usually given considerable discretion as to how and when to exercise its regulatory power. This article analyses recent developments in case law on judicial control of administrative acts of omission in Japan. State liability cases and mandamus cases are typical measures for challenging omissions of public authorities. Recently, State liability lawsuits, such as Minamata and asbestos cases, have proven to be an effective measure to challenge the non-use of the regulatory power. Although such kind of lawsuit is a direct measure to compensate the victims, it also plays an important role as an indirect measure to push the government to exercise its regulatory power. The mandamus action is more a direct measure to control illegal failures. It is a new type of administrative litigation expected to demonstrate more effectiveness in the future.