Abstract
This chapter analyses an administrative lawsuit from 2003 concerning the Monju prototype fast-breeder reactor in Fukui as an example of nuclear disputes in Japan, and explores what it means for the safety of a nuclear reactor to be disputed in a judicial court. The analysis reveals that such litigation concerning a nuclear facility focuses on the validity of administrative procedures and does not pass judgement on the safety of the nuclear reactor itself. With regard to judgement on the safety of nuclear reactors, the views of the administrative authorities’ experts, who exercise engineering judgement , which inevitably involves a degree of uncertainty, are treated with great respect. In administrative litigation , the stepwise regulation of installation and operation of nuclear power plants is taken as a premise, and matters such as the final disposal of nuclear waste and the methods of reprocessing spent nuclear fuels are beyond the scope of judicial review, as are the social aspects of utilising nuclear energy. The analysis highlights the limitations of administrative lawsuits to solve social conflicts about nuclear power plants in Japanese society.
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- 1.
The original version of this paper in Japanese was written before 11 March 2011. Currently (2014), there are over 20 cases before the courts in Japan concerning nuclear power plants. In 2014, Fukui District Court decided that Kansai Electric Company should not resume operation of the Oi nuclear power plant. We cannot judge at this point whether this is the beginning of a process of change or an exceptional case in the Japanese judicial system.
- 2.
As Monju has been shut down at the time of writing, Japan’s national plan for nuclear fuel reprocessing is tentatively forced to rely on the pluthermal (plutonium for thermal use) project, which aims to burn a mixed oxide form of plutonium and uranium in plutonium-thermal reactors. The pluthermal project has also been criticised for many reasons. Hitoshi Yoshioka, who served as an expert adviser of the Atomic Energy Commission of Japan and has actively studied and spoken about atomic energy use in Japan, gave a thorough account of the pluthermal project (Yoshioka 1999).
- 3.
In order to request the cancellation of an administrative disposal, at the time of the Monju trial, a plaintiff had to file a case within three months of a disposal being acknowledged (Article 14 of the Administrative Litigation Act, ‘statute of limitations’). In the case of the Monju trial, as it was already past this period when the plaintiffs tried to file a lawsuit, they had to file a lawsuit to request nullification (invalidity confirmation) of the construction permit. While a suit for invalidity confirmation is not accompanied by any statute of limitations, a plaintiff must establish material and clear illegality (deficit) concerning an administrative disposal. This requirement was established by the Supreme Court third petty bench ruling on 26 December 1995, as a precedent. This ruling confirmed that, ‘even if an administrative disposal is illegal, except a case in which the illegality is confirmed as so material and clear that the disposal must be nullified by necessity, the disposal shall remain in full force unless it is revoked lawfully’. This requirement became the point at issue in the High Court decision on the Monju trial. The High Court judged, as the potential dangers of the administrative disposal came under the extraordinary situation in this case, that it was enough to establish material illegality only, and not necessary to establish clear illegality. Meanwhile, a revision to the Administrative Litigation Act of 2004 extended the statute of limitations for filing an administrative lawsuit to request a cancellation of an administrative disposal to six months.
- 4.
MOX fuel is mixed oxide nuclear fuel that is made by blending uranium with reprocessed plutonium taken from spent nuclear fuels. The International MOX Assessment (IMA) project cautioned in its final report that the use of MOX fuel in light water reactors would raise special safety, security, and economic considerations (Takagi et al. 1997).
- 5.
At the first trial, the government (the defendant) claimed that a court should not judge the illegality of a construction permit of an administrative disposition and thus should dismiss this suit. The Fukui District Court accepted the government’s claim. In the second instance, the High Court admitted this lawsuit but rejected the status of plaintiffs who lived more than 20 km away from Monju. The Supreme Court reversed the decision of the High Court, however, and recognised the qualifications of all the plaintiffs. Meanwhile, the nuclear meltdown at Chernobyl took place in 1986, a year after the local residents filed this case.
- 6.
As the defendant, the government was unhappy with this process of examination. At the same time, the government showed repentance for having downplayed the scheduling conferences.
- 7.
See footnote 2.
- 8.
This tendency was apparent in the reporting of The Mainichi Newspapers, The Nikkei, and Asahi Shimbun. However, the High Court’s finding on the possibility of an accident was a highly divisive issue. To say the least, experts did not fully agree on the possibility of this sort of accident occurring.
- 9.
Only The Yomiuri Shimbun dissented from the High Court’s judgement on the possibility of accidents, and its editorial article also stated the ruling as ‘dubious’ (the morning edition of 28 January 2003).
- 10.
The High Court’s ruling stated that, ‘The appellate acknowledged that neither staffs of PNC nor the members of NSC who were involved in the safety review for the construction permit possessed knowledge about the corrosion mechanism of high temperature sodium and steel. (Meanwhile, as the NSC’s accident investigation working group pointed out, they could have accessed this knowledge at the time of construction permit if they had been aware of the issue.)’. The Nuclear Industrial Safety Agency (NISA) rejected this argument, maintaining that, ‘The knowledge that the Electrochemical Society of Japan, to which the NSC’s working group commissioned the investigation, had used the phrase “could have accessed” is knowledge that “corrosion would occur.” It did not imply that there was quantitative data to prove corrosion, nor that corrosion can make holes in a steel liner of 6 mm thick within a few hours’ (NISA 2003).
- 11.
Man-machine interface was an issue raised by the Three Mile Island and the Chernobyl nuclear accidents, which required special attention to be paid to the safety management of nuclear facilities. In this sense, man-machine interface was also new knowledge, just like the corrosion of a steel liner (Takahashi 1998, p. 201).
- 12.
As this judgement indicates, some legal experts note that this kind of litigation has the characteristic of putting the future on trial, because the resulting judgment would have a major influence in shaping the future society. This make sense: a lawsuit about a nuclear power plant must examine the safety of the equipment to be used for many years, as well as its possible negative impact, long before any harm may appear (Sato 1993, p. 39).
- 13.
While the lawsuit on the Ikata NPP was a suit for cancellation of a construction permit, the lawsuit on Monju was one for invalidity confirmation of a permit. The requirement to establish ‘any unreasonableness, errors, or deficits that could not be overlooked’ in the process of screening and making a judgment is in pursuit of cancellation. The generally accepted requirement for invalidity confirmation, by contrast, is to establish the material and clear illegality of administrative disposal. How these different requirements relate to each other remains open to dispute. Some have argued that the High Court’s ruling on Monju equated these requirements when they should be distinguished (Takagi 2003).
- 14.
The High Court’s judgement did not use the term discretion. This is because, in the judicial process, the term discretion generally means the discretionary powers of making judgements on political and policy matters. Takahashi (1993, p. 55) argues, however, that the key point of the Supreme Court ruling on the Ikata NPP was that this ruling admitted the discretionary powers of administrative agency on specialized and technical matters.
- 15.
Alvin Weinberg (1972) referred to such questions as trans-scientific questions.
- 16.
This means that the judge makes a decision rather than an expert or administrative agency.
- 17.
Takagi (2003), in quoting the judgement, changed the term in the second sentence from ‘substantial risk’ to ‘substantial possibility’.
- 18.
On 30 May 2005, the First Petty Bench of the Supreme Court quashed the High Court decision. Thus, the judgement of the Fukui District Court, which quashed the request for nullification of the construction permit of Monju, became final. The Supreme Court decision did not explicitly mention that the High Court required that only material illegality need be established for the invalidity confirmation of the construction permit of Monju, and not clear illegality. Instead, the Supreme Court judgement endorsed the judgement of the government agencies regarding ‘the secondary coolant leakage accident’ (the so-called sodium-leakage accident), ‘breakage in a heat transfer tube’, and ‘event of unprotected loss of flow in the primary cooling system’, and determined that the High Court judgement contained a violation of interpretation of the Nuclear Reactor Regulation Law. In other words, the Supreme Court’s judgement granted the government agencies wide discretionary powers, including judgement over what matters should be included in the scope of the baseline design in the step-wise regulations stipulated by the Nuclear Reactor Regulation Law (Supreme Court of Japan 2005). This judgement was in line with the Supreme Court’s decisions on the Ikata NPP and the Fukushima II NPP. In terms of the legal theories regarding administrative litigation, this judgement is similar to the theory of controlling the code of conduct that we mentioned in this chapter. However, this judgement does not mean that a judicial court confirmed the safety of Monju; it eliminated any concerns over the operation of Monju even less. In addition, while from the legal perspective, resumption of operations at Monju became legally permitted, from an engineering perspective, the resumption at Monju, which had stopped operations for 10 years, would have involved considerable risk. This is because it was not supposed to stop operations for 10 years when it was designed.
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Kobayashi, T., Kusafuka, M. (2015). The Monju Trial: Nuclear Controversy in Japan. In: Fujigaki, Y. (eds) Lessons From Fukushima. Springer, Cham. https://doi.org/10.1007/978-3-319-15353-7_8
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