Soil Protection Law in Japan

Abstract

Environmental law has developed in parallel with the process of combating environmental pollution in Japan. However, while soil contamination has been recognized as a form of environmental pollution, legislation for measures against soil contamination has lagged far behind. Soil contamination on agricultural land was addressed with legislation in 1970, but soil contamination in urban areas was only addressed with legislation in 2002, with the enactment of the Soil Contamination Countermeasures Act. Even the Soil Contamination Countermeasures Act faces major challenges as it does not apply to voluntary investigations and measures. This is a significant concern because among the total number of soil contamination investigations and countermeasures, the number of voluntary measures significantly exceeds the number of measures taken under the Soil Contamination Countermeasures Act. Moreover, the liability scheme is such that liability is weighted more toward landowners than polluters.

1 Introduction

In Japan, soil protection is implemented within the framework of environmental law, and, therefore, the development of legislation for soil protection is closely linked to the development process of environmental law. Soil contamination, which must be prevented and removed for soil protection, is regarded as a form of typical environmental pollution under Japanese environmental law. The main issue in the legal system when addressing soil contamination is how the liability scheme should be structured. This article, therefore, presents the history of Japanese soil protection legislation and its specific contents and issues. Section 2 provides an overview of the history of legislation on measures against environmental pollution in Japan and explains how soil protection efforts have been implemented in this context. Section 3 introduces the legal system for the prevention and removal of soil contamination in Japan. Section 4 discusses the biggest challenge in Japanese soil protection legislation—which party to hold responsible.

2 History of Environmental Pollution Control and Soil Protection in Japan

2.1 Tragic Environmental Pollution

Environmental law in Japan has evolved in its consideration of “environmental pollution” (Kogai). Mining developed on a large scale in Japan from around 1887, leading to air and water pollution and other problems around the country. In the postwar period, industrial recovery and rapid industrial economic development due to the Income Doubling Program, which started in 1960, caused serious environmental pollution. Since the 1950s, the following four major pollution-induced incidents occurred: Itai-Itai disease, Kumamoto Minamata disease, Niigata Minamata disease, and Yokkaichi asthma. Each caused health problems for the surrounding residents, resulting from environmental pollution caused by companies’ industrial activities. These four major pollution incidents were horrendous and led to thousands of deaths. The victims and their families filed lawsuits against the companies responsible and won compensation for damages, forcing the government to take legal action to ensure that such severe pollution incidents would not happen again. Initially, pollution in the early postwar period remained at the local level and was handled by local authorities by enacting ordinances. However, following the four major pollution incidents, the state had to establish laws to address the situation.

Since the late 1950s, several laws have been enacted to manage pollution. In 1958, the Act on the Conservation of Water Quality in Public Water Bodies (Water Quality Conservation Act) and the Act on the Regulation of Factory Effluents (Factory Effluent Regulation Act) (together, the “two water quality acts”) were established to address water pollution. In 1959, the Act on the Protection of Water Quality in Public Water Bodies (Water Quality Conservation Act) and the Act on the Control of Factory Effluents (Factory Effluent Control Act) were passed to control water pollution. In 1962, the Act on the Control of Soot and Smoke Emissions (Soot and Smoke Control Act) was enacted to address air pollution caused by soot and smoke. However, all these laws designated only heavily polluted areas as subject to regulation and were not nationally uniform regulatory systems. They also contained a provision known as the “economic harmonization clause,” which prioritized the economy over environmental protection. As a result, these laws had little effect, and pollution increased with little progress in countermeasures. Under these circumstances, it became increasingly recognized that pollution prevention was necessary, rather than an ex post facto approach, such as designating areas subject to regulation after pollution had been detected.

2.2 The Basic Act on Environmental Pollution Control

In 1967, the Basic Act on Environmental Pollution Control was enacted. The Act (i) specifies six types of pollution (air pollution, water pollution, noise, vibration, land subsidence, and odor) that the government should take action against and requires the government to (ii) set “environmental standards” and specify environmental conservation targets, (iii) set “emission standards” based on the environmental standards, regulate emissions of pollution-causing substances, (iv) and develop pollution control plans. This Act established a comprehensive basic policy on pollution, but it had two main limitations. First, an economic harmonization clause was placed as the purpose of the Act. With this economic harmonization clause present, strict pollution control measures that would hinder industrial activities that contribute to economic development could not be realized. Second, the Act was only a basic law on “pollution” and did not cover the conservation of the natural environment or the protection of the historical and cultural environment. Incidentally, it should be noted that the definition of “pollution” at the time did not include soil contamination. The Basic Act on Environmental Pollution Control did not have soil protection as an explicit objective. This is because it was thought that the legal control of water and air pollution through the two water quality acts and the Soot and Smoke Control Act (amended in 1968 to become the Air Pollution Control Act) was sufficient to control soil contamination as soil contamination had been caused by water pollution or air pollution.¹

In the 1970s, in addition to the need to address the limitations of the Basic Act on Pollution Control, new environmental pollution problems, such as photochemical smog and sludge, emerged in various regions, making environmental pollution a top national priority. Accordingly, 14 pollution-related laws were enacted or amended at the 64th extraordinary session of the Diet that year, and the Basic Act on Environmental Pollution Control was amended to remove the economic harmonization clause. The definition of environmental pollution was also changed to include soil pollution, increasing the six typical pollution categories to seven, and the government was required to take measures not only for environmental pollution but also for “protection of the natural environment.” The two water quality laws were amended to become the Water Pollution Control Act, and the Air Pollution Control Law was partially amended, both of which removed the economic harmonization clause that had existed in the former acts and abolished the designated area system. Thus, pollution control measures came to be implemented without being subordinated to economic development, and regulations were no longer limited to heavily polluted areas but were applied on a uniform nationwide basis. These acts also clearly allowed local authorities to impose stricter regulations than national laws by ordinance (Article 4 of the Air Pollution Control Law and Article 3 of the Water Pollution Control Law). The challenges in conventional pollution control were, therefore, reflected in the amendments to the respective laws.

In the early 1970s, legislation on pollution control and nature conservation evolved with the establishment of the Environment Agency, the enactment of the Natural Environment Protection Law as the basic law on the protection of the natural environment, the introduction of no-fault liability provisions in the Air Pollution Control Law (Article 25) and Water Pollution Control Law (Article 19), and the adoption of a total volume control system. However, as these various individual laws and regulations became successful, and the problem of intense pollution subsided, legislation on environmental protection stagnated.

2.3 The Basic Act on the Environment

The environmental movement once again gained momentum in the 1990s, when global environmental issues, such as climate change, came to the world’s attention. Following the adoption of the Rio Declaration and Agenda 21 at the Earth Summit, United Nations Conference on Environment and Development (UNCED) in 1992, the Convention on Biological Diversity, and the United Nations Framework Convention on Climate Change, the Basic Act on the Environment² was enacted in 1993. The Act was intended to address global-scale environmental problems and new pollution problems, including waste management, that differ from conventional pollution. The Act superseded the Basic Act on Pollution Control and set out basic policies not only for environmental pollution control but also for environmental protection more broadly. The new act inherited numerous parts from the Basic Act on Pollution Control and retained the definition of the seven typical forms of pollution. However, the Basic Act on the Environment encourages a shift from conventional “environmental pollution control law” to “environmental law” in that it clearly outlines sustainable development and prevention of interference with environmental conservation as basic principles, refers to the introduction of economic methods that differ from traditional regulatory methods, and aims to achieve a society with a smaller environmental burden by involving the public.³ Subsequently, based on the Basic Act on the Environment, a number of laws were enacted in response to various environmental issues, such as climate change, waste management (establishing a sound material-cycle society), landscape preservation, and chemical substance management.

While measures for most forms of environmental pollution were thus in place, measures for soil contamination never progressed smoothly. More specifically, by the mid-1970s, corresponding legislation had been enacted for all seven typical pollution types except soil contamination and environmental standards had been set successively. For soil contamination, however, environmental standards were only set in 1991 after a long period of neglect, with final legislation eventually enacted in 2002.

The following section presents the history and content of legislation addressing soil contamination.

3 Soil Contamination

In combination with the activities of microorganisms in the soil, the soil decomposes fallen leaves, animal waste, and so forth, stores nutrients, absorbs and purifies rainwater, and delivers rainwater to rivers and the sea underground. These functions of the soil, such as material circulation, water retention, and purification, are the basis for the survival of all living organisms on Earth. The water and food that humans need to survive is also nurtured by the soil.

What does it mean, therefore, for soil to be contaminated? When soil is contaminated by hazardous substances, its functions are reduced. Contamination spreads to the environment around the soil, further affecting human life and health. When hazardous substances are contained in the soil, (i) they remain in the soil semi-permanently; (ii) if they penetrate deeper into the soil and reach the groundwater, (iii) they will eventually flow into rivers and other waterways. Hence, people who come into direct contact with the soil at stage (i), people who drink groundwater at stage (ii), and people who eat fish from rivers and plants grown in the river basin at stage (iii) will each ingest hazardous substances. In other words, health hazards due to soil contamination can occur through two routes: the direct ingestion (e.g., by inhalation or dermal absorption) of hazardous substances and the indirect ingestion through groundwater.

The most distinctive feature of soil contamination is that—unlike air and water pollution—hazardous substances remain in the ground semi-permanently (known as stock pollution) unless they are removed artificially. Soil contamination can, therefore, originate from events that happened a long time ago, meaning that the polluter can no longer be identified or, if they can be identified, may already have become bankrupt or died. The difficulty of identifying polluters is the biggest problem inherent in soil contamination.

3.1 Legislation to Address Soil Contamination

There are two types of soil contamination mainly addressed by the laws on soil protections: that which occurs on agricultural land and that which occurs in urban areas.

3.1.1 Prevention and Removal of Soil Contamination on Agricultural Land

Soil contamination on agricultural land has been observed for a long time, dating back to the Ashio copper mine poisoning incident in the 1890s. This incident occurred when copper (mineral poison) from the Ashio copper mine flowed into the Watarase River, causing extensive damage to crops in the agricultural areas of Tochigi and Gunma Prefectures. Shozo Tanaka, a member of the House of Representatives at the time, appealed directly to the Meiji Emperor to take action against this incident. However, the government did not respond. On the contrary, the opposition of the residents was suppressed by government authorities, leading to the submergence of Yanaka village downstream of the Watarase River for the purpose of depositing mineral poison.⁴ It was not until 1974, 90 years after the incident, that the companies responsible agreed to pay compensation to the affected farmers, which exemplifies how difficult it is to resolve environmental pollution problems in the absence of legal standards.⁵

The first case of serious damage to human life and health as the result of an environmental pollution problem was the outbreak of Itai-Itai disease in the 1950s. In this case, cadmium contained in wastewater from a mine contaminated the groundwater and farmland in the basin of the Jinzu River in Toyama Prefecture, and residents who ate the crops developed cadmium poisoning. The Ministry of Health finally recognized cadmium as the cause of Itai-Itai disease in 1968.

As these events indicate, the soil contamination of agricultural land with toxic substances, which are then transported through rivers and groundwater, is problematic because of its effects on crops grown in the soil and on the lives and health of people who ingest those crops.

In response to growing public concern about the soil contamination of agricultural land, legislation was enacted at the 1970 Diet session on pollution. Soil pollution was added to the definition of environmental pollution (Article 2, Paragraph 1 of the Basic Act on Pollution Control Measures), and the Act to Prevent Soil Contamination on Agricultural Land was newly enacted. This law protects not only human health but also the living environment and provides for the implementation of public works projects to prevent and remove soil pollution from agricultural land. The costs incurred for such public works are borne by the business operator in accordance with the Act on Entrepreneurs’ Bearing of the Cost of Public Pollution Control Works.

3.1.2 Prevention of Soil Contamination in Urban Areas

Soil contamination in urban areas has been the focus of attention since the hexavalent chromium incident in 1973. In this case, a large amount of chromium was found to have been buried in the soil of a former factory site acquired by the Tokyo Metropolitan Government. More recently, the presence of soil and groundwater contamination in the Toyosu market, the relocated site of the Tsukiji market, became a major social issue. In the Toyosu market, the Tokyo Metropolitan Government purchased a former factory site. While the seller had conducted a soil contamination survey and the government had taken additional measures before signing the purchase contract, after the Tokyo Metropolitan Government acquired the site, inadequate soil contamination measures and groundwater contamination with benzene were discovered just before the market was to be relocated. Additional work became necessary.

Soil pollution in urban areas is mainly caused by landfills and the underground seepage of hazardous substances on factory sites (private property). Hence, prohibiting such activities is essential to preventing soil pollution. In 1970, the Waste Management and Public Cleansing Law was enacted to prohibit the illegal dumping of wastes (Article 16). With regard to infiltration, the 1989 and 1996 amendments to the Water Pollution Control Law prohibited the infiltration of hazardous substances into the ground and established provisions for ordering cleanup in the event of groundwater contamination (Article 12-3, Article 14-3). Furthermore, the Law Concerning Special Measures against Dioxins, enacted in 1999, required that measures be taken through public-works projects to prevent and remove soil contamination caused by dioxins (Article 29 and following).

Although several laws have been established to address soil contamination in urban areas, the enactment of a comprehensive law has been significantly delayed. The most contentious issue has been who should be in charge of soil pollution control. The Soil Contamination Countermeasures Act⁶ was finally enacted in 2002 and substantially revised in 2009 and 2017.⁷ Prior to the enactment of the Soil Contamination Countermeasures Act, many local authorities had established bylaws and other systems to counteract soil contamination in urban areas.⁸ Some required operators to take measures against soil contamination when purchasing publicly owned land, when constructing buildings above a certain scale, when relocating or closing factories, and against soil contamination, regardless of relocation or closing. Some also assumed the polluter and the current operator to be the party responsible for the removal of soil contamination.

3.2 Removal of Soil Contamination in Urban Areas: Soil Contamination Countermeasures Act

3.2.1 Purpose of the Act

The purpose of the Soil Contamination Countermeasures Act is limited to “preventing damage to human health” caused by soil contamination (Article 1). The prevention of soil pollution itself is assessed to covered by the regulation of landfill and seepage activities under the Law on Waste Disposal and Cleaning and the Law on Water Pollution Control.

3.2.2 Overview

3.2.2.1 Specified Hazardous Substances

In light of the Act’s purpose, the substances covered by the Act are also restricted to those that pose a health hazard if ingested by humans. These are called “specified hazardous substances” and currently comprise 26 designated substances (broadly classified as volatile organic compounds, heavy metals, and pesticides).

3.2.2.2 Soil Contamination Investigation

To manage soil contamination, it is necessary to know where it exists. Investigations for this purpose are carried out in accordance with Articles 3, 4, and 5 of the Soil Contamination Countermeasures Act. Under the current law, the triggers for investigation are as follows: (i) when a factory or workplace handling specified hazardous substances (hereafter, “workplace”) ceases operations (Article 3(1)); (ii) when changes to the form or nature of land of 900 m² or more are carried out at a workplace that is temporarily exempted from investigation after it ceases operations (Article 3(7) and (8), Article 21-4 of the enforcement regulations of the Soil Contamination Countermeasures Act; (iii) when operating (i) changes to the form or nature of land of 900 m² or more are carried out at a workplace (Article 4); (iv) when changes to the form or nature of land of 3000 m² or more are carried out (Article 4); and (v) when soil contamination is suspected of causing a health hazard (Article 5). As of 2019, the actual number of investigations triggered by Articles 3, 4, and 5 accounted for only about 10% of all investigations, with voluntary investigations accounting for more than 80%.⁹

3.2.2.3 Designation of Areas and “Measures to Be Implemented”

Land where the presence of soil contamination has been confirmed following an investigation under Articles 3, 4, 5 or a voluntary investigation (Article 14) is designated by prefectural governors as either an “area which requires measures” (Article 6) or an “area for which changes to form or nature require notification” (Article 11). The former is designated when soil contamination by specified hazardous substances is found, and there is a risk of a health hazard (direct or indirect pathways exist). The latter is designated when soil contamination is found, but there is no risk of a health hazard. The difference between the two types of areas, therefore, lies in the presence or absence of a health hazard. If the area is designated as an “area which requires measures,” measures such as the removal of soil contamination (hereafter, “measures”) are taken (Article 7). Unlike in the case of agricultural land, public-works-type measures were not adopted because of the limitations of administrative resources and land authority in handling soil contamination on private land throughout the country through such measures. If an area is designated as an “area for which changes to form or nature require notification,” only a notification is required when making a change to the form or nature of the land in this area (Article 12). Up to the financial year 2020, the cumulative number of designated areas that require measures is 712, and that of areas for which changes to form or nature require notification is 4000.¹⁰

However, even in “areas for which changes to form or nature require notification,” measures are often taken in practice, and the number of such measures exceeds those in “areas which require measures.” This difference is related to the “registry.” Land with a designation of areas is entered into a coordinated registry for each of the two area types, but when soil contamination has been eliminated, the designation is canceled, and the area is recorded in a cancelation registry (Article 15). Although this registry system makes soil-contaminated land publicly known, voluntary measures are often taken to have the designated areas canceled, as the trading market shuns land with soil contamination (even if it is an “area for which changes to form or nature require notification” without risk of health hazards). Voluntary measures against soil contamination on land not designated as either of these areas account for 60% of the total number of measures taken.¹¹

Most measures taken involve excavation and removal. Although health hazards can be prevented if direct and indirect routes of soil contamination are blocked, it is preferable to remove the contamination completely from the soil. However, as measures of excavation and removal are expensive, legal disputes as to who bears this cost often arise.

3.2.2.4 Carrying Out and Processing Contaminated Soil

To prevent improper handling of excavated contaminated soil and the creation of new contamination elsewhere, the 2009 amendments established a new permit system and standards for carrying out and processing contaminated soil (Articles 16 to 22).

3.2.2.5 Soil Contamination of Natural Origin

Soil pollution is one of the seven typical types of “environmental pollution,” which include air pollution, water pollution, soil contamination, noise, vibration, ground subsidence, and offensive odors, as specified in Article 2(3) of the Basic Environmental Law. Soil pollution as a form of “environmental pollution” is limited to “artificially occurring” pollution, following the definition of environmental pollution “as a result of business and other human activities” (Article 2(3) of the Basic Environment Law). Therefore, “naturally occurring” soil pollution was initially excluded from the scope of the Soil Contamination Countermeasures Act. However, as the Act’s purpose is to prevent health damage from soil contamination, it is not necessary to distinguish whether the cause of the soil contamination is due to, for example, human activities or nature. For this and other reasons, the Act now covers soil pollution of natural origin, following a 2010 notification by the Ministry of the Environment¹² and a 2017 amendment to the Act (Article 18(1)(ii), (2), proviso to Article 12(1), Article 12(4)).

4 Who Is Responsible for Soil Contamination?

The “polluter pays principle” is a fundamental principle of Japanese environmental law, which requires that measures to address environmental problems and the costs of such measures are borne by those who caused the environmental problems. In Japan, experience with environmental pollution control led to the emergence of a polluter pays principle before the 1972 Organisation for Economic Co-operation and Development (OECD) recommendations. The origin of the principle in Japan can be found in the damage relief system adopted in the Act on Special Measures Concerning Pollution-related Health Damage Relief of 1969 and the Act on Entrepreneurs’ Bearing of the Cost of Public Pollution Control Works of 1970. At present, provisions relating to the polluter pays principle are located in Article 8(1) and Article 37 of the Basic Environment Law (although these are not necessarily the general legal basis for the principle). The distinctive features of the Japanese polluter pays principle are that (i) its range of application extends not only to pollution prevention costs but also to restoration costs and damage relief costs and that (ii) it is regarded as a principle of justice and equity rather than of efficiency.¹³ The Japanese polluter pays principle, which has such a strong legal aspect, has sometimes been criticized for being contrary to the OECD’s polluter pays principle from an economic standpoint. The OECD has referred to it as the “punish polluter principle.”¹⁴ However, the idea of the Japanese polluter pays principle, which applies to restoration and victim relief, has been adopted in Europe and the United States as an effective pollution prevention, and some regard it positively as having been a global forerunner.

4.1 Landowners

In contrast to the polluter pays principle, the Soil Contamination Countermeasures Act foregrounds the owner, manager, or occupier of the land (hereafter, “landowners”), rather than the polluter, as the responsible party. First, the responsibility for carrying out investigations is placed entirely on the landowners. The justification for this is that the polluter is unknown at the stage of investigation, before the presence or absence of soil contamination is known, and that investigations cannot be carried out on private land without the landowner’s permission.¹⁵ Second, the landowner is listed as the first party responsible for implementing measures in an “area which requires measures” (Article 7(1)). The justification for this is that the landowner controls the dangerous situation caused by soil pollution, that soil pollution measures on private land cannot be implemented without the landowner’s permission, and that soil pollution measures are carried out in consideration of how the land will be used in the future.¹⁶ Incidentally, this concept of landowner liability (Jotai Sekinin) in Japanese law is modeled on Zustandshaftung under German administrative law.¹⁷

4.2 Polluter

However, the polluter can also be the responsible party. For measures in an “area which requires measures,” the polluter, not the landowner, is responsible only if the following three requirements are fulfilled: (i) the polluter is identified, (ii) it is reasonable to have the polluter implement the measures, and (iii) there are no objections from the landowner (proviso to Article 7(1)). Thus, while requirements are set for the polluter, the landowner is unconditionally responsible under any circumstances unless the above three requirements are fulfilled and a polluter is held responsible. This scheme of responsibility is based on a policy reason. To avoid the absence of a responsible party in cases where a polluter is difficult to identify, has already become bankrupt, or has died,¹⁸ due to the characteristics of soil contamination as stock pollution, legislators included the landowner as the responsible party unconditionally in the Act. As a result, the polluter pays principle has been overshadowed by landowner liability.

If a landowner who has not caused the pollution becomes responsible for measures in an “area which requires measures,” they are obliged to prepare and submit a plan (hereinafter, “plan for contamination removal, etc.”) to the prefectural governor and implement measures in accordance with the plan for contamination removal, etc., pursuant to an indication by the prefectural governor (Article 7). Under Article 8, only the cost of the preparation and revision of the plan for contamination removal, etc. concerning the measures to be implemented and measures can be reimbursed by a polluter, if found. However, the proviso to Article 8(1) sets out the conditions under which the polluter is exempted from the obligation to pay costs (e.g., if the polluter has taken measures against soil contamination in the past, or if the landowner has purchased the land in question at a significantly lower price because of soil contamination¹⁹). If this exemption condition is met, the landowner cannot transfer the costs under Article 8 to the polluter.

4.3 Legal Disputes Concerning Soil Contamination

Land suspected of being contaminated is shunned on the property transaction market, as owning soil-contaminated land can make the owner responsible for carrying out investigations and measures under the Soil Contamination Countermeasures Act and interfere with the intended use of the land. In many cases, while the land seller may voluntarily carry out soil contamination investigations and measures before the sale contract, soil contamination is often discovered after the sale has been concluded. Legal disputes may arise when owners who have unintentionally acquired soil-contaminated land try to recover the costs they have incurred in handling the soil contamination.

4.3.1 Lawsuits Against Polluters

The Tokyo District Court decision of 16 January 2012, HANREI TIMES No. 1392, p. 78 (on appeal, Tokyo High Court decision of 28 March 2013, HANREI TIMES No. 1393, p. 186) was a case in which the existence of liability as a causal party under the Soil Contamination Countermeasures Act was disputed. In this case, one of the issues was whether the city was a polluter under the proviso of Article 7(1) of the Soil Contamination Countermeasures Act as soil contamination was caused by the contractor’s landfilling of waste brought in by the city. The court held that only the contractor, and not the city, was responsible as the contractor landfilled the waste based on the contractor’s own calculations. The court also stated that as long as a measure order (Article 7(1) before the 2009 amendments, equivalent to an indication under Article 7(1) of the current law) had not been issued, the right to make a claim under Article 8 did not arise. The court’s views in this decision on the ‘polluter’ and the limitation on the right to make a claim by a landowner who has voluntarily taken measures are open to debate.

4.3.2 Lawsuits Against Land Sellers

If soil contamination of the land in question is discovered after a land sale contract has been concluded, the land purchaser may pursue liability against the seller. Specifically, there are four possible means of holding the seller “liable for non-compliance with the contract,” as follows: (i) a claim for completion; (ii) a claim for reduction of the price; (iii) a claim for damages; and (iv) termination of the contract (Articles 562–564 of the Civil Code). This type of liability was known as “liability for defects” in the old Civil Code (Articles 570 and 566) before the code’s amendment in April 2020. (Before the amendment, only (iii) and (iv) were possible.) The most prominent case of liability for defects in the past concerning soil contamination is the Supreme Court decision of June 1, 2010, Minshu, vol. 64, no. 4, p. 953. In this case, fluorine became a specified hazardous substance under the Soil Contamination Countermeasures Act only after the conclusion of the land sale contract. In light of the “concept of the transaction at the time the sale contract was concluded,” the existence of soil contamination by fluorine on the land in question was not a “defect” that devalued the quality and performance of the object that the parties intended to exchange. The Supreme Court denied the seller’s liability for damages. However, in many subsequent cases, the existence of soil contamination has been recognized as a defect, and a claim for damages has been accepted on the basis of the “concept of the transaction at the time of the conclusion of the sales contract” as a criterion for judging defects as set out in the case. In addition, there are cases in which the seller has been held liable for default of obligation (Tokyo District Court, September 5, 2006, HANREI JIHO No. 1973, p. 84) and tort liability (Osaka High Court, July 12, 2013, HANREI JIHO No. 2200, p. 70), and a claim for damages has been admitted.

4.3.3 Litigation Against the Administration

The illegality of the Soil Contamination Countermeasures Act, which imposes responsibility for soil contamination countermeasures on landowners who are not the cause of the contamination, was challenged in one case (Tokyo District Court, 7 February 2012, HANREI TIMES No 1393, p. 95). The case is particularly noteworthy because the court rejected the illegality of the application of Article 1(1) of the State Redress Act on the grounds that the failure to make provisions to exempt landowners who purchased land without knowledge of soil contamination (in good faith and without negligence, namely, “innocent”) before the Act came into force was a matter within the state’s “legislative discretion.” In other countries’ soil contamination legislation, consideration is generally given to reducing immunity for innocent landowners, but no such consideration is given in Japan. This is a major remaining issue for the Soil Contamination Countermeasures Act.

5 Conclusion

Japanese soil protection legislation was consolidated in 2002—later than in all other industrialized countries. Even though soil contamination has been listed as one of the seven typical types of environmental pollution since 1970, and the Basic Act on Environmental Pollution Control and its successor, the Basic Environmental Act, clearly stated that measures should be taken to address it, legislation on the removal of soil pollution in urban areas was neglected for more than 30 years. This is due to the government being unable to reach a conclusion regarding who should be the responsible party. As a result, the Soil Contamination Countermeasures Act stipulates that the landowner is responsible for removing soil contamination in urban areas unless the three requirements for making the polluter liable are fulfilled. There is, however, no consideration in the law or in judicial precedents to exempt bona fide landowners from liability, which has resulted in an unfair situation in practice and led to legal disputes. As noted above, the Soil Contamination Countermeasures Act introduced the landowner liability modeled on German administrative law. However, while Germany limits liability to cases in which the landowner is innocent under judicial precedent, Japanese courts do not take any such consideration of innocent landowners into account.²⁰