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Tadashi Narabayashi

【#652(Special)】Judicial Risks Threatening Social / Industrial Infrastructure

Tadashi Narabayashi / 2020.01.23 (Thu)

January 21, 2020

On January 17, the Hiroshima High Court ordered Shikoku Electric Power Co. to suspend Unit 3 of its Ikata Nuclear Power Station in Ehime Prefecture, endorsing three Yamaguchi Prefecture residents’ appeal and revoking a lower court decision.

Of the three judicial decisions on nuclear plant operations in Japan in the past two years, one supported the continuation of operations and two including the latest one ordered the suspension, indicating that Japan’s judicial sector is wandering over the matter. As electricity supply constitutes life base and industrial and economic infrastructure, judicial risks are now threatening them. Unit 3, which has suspended operation since last month due to regular checks, is set to remain unable to restart legally under the court decision. Shikoku Electric branded the decision as unacceptable and vowed to promptly take procedures to appeal the ruling.

Court reversed strict safety screening

Regarding the latest court decision ordering the suspension of the reactor operation, I would like to point out that the appeal represents an abuse of “personal rights.” According to Civil Code guru Akio Morishima, Honorable Professor of Nagoya University, “personal rights” should be applied only in the presence of a truly imminent danger but not unduly. Unit 3 of the Ikata Nuclear Power Station cleared safety screening under the world’s toughest regulations and was confirmed safe in pre-operation tests before its restart. This means that the nuclear plant poses no imminent, clear danger to the three Yamaguchi Prefecture appellants or any other people. Under the safety regulations including measures against severe accidents (involving reactor core damage), the likelihood of a grave, severe accident in a year for a nuclear reactor in Japan has declined to around one-10 millionth, according to risk assessment by an expert panel of the Atomic Energy Society of Japan.

Next, I would like to point out that the High Court intruded into safety screening by the Nuclear Regulation Authority that is an independent, powerful administrative organization established under Article 3 of the National Government Organization Act. The court criticized the NRA’s safety screening regarding potential active faults as including errors or shortfalls. The court’s 88-page written decision on the suspension order after only one opportunity for interested parties to make presentations denied the NRA’s judgement to approve the nuclear reactor’s safety after overly strict examinations involving 400,000 pages of documents (to include papers for construction approval) that consumed massive time and manpower.

Where is fairness?

Article 2-2 of the Atomic Energy Basic Act provides that safety shall be assured to contribute to the protection of people’s lives, health and assets, to the environmental conservation and to Japan’s national security, taking into account established international standard. The court decision adopts a very tiny minority view that the Sea of Iyo in the western Seto Inland Sea facing the power station may include active faults. As for a potential large-scale eruption of Kumamoto Prefecture’s Mt. Aso some 130 kilometers from the power station, no consideration is required to an eruption that would be five to six times larger than assumed by Shikoku Electric.

Nevertheless, the court decision fully endorsed the appellants’ complaint that the assurance of safety from a huge earthquake is insufficient. Is such judicial decision fair? Is any judicial decision allowed to reverse the results of strict safety screening based on the legal system for administrative procedures? This case apparently indicates that the way Japan’s judicial sector works must be fundamentally reformed.

Tadashi Narabayashi is a specially appointed professor at the Tokyo Institute of Technology and a director at the Japan Institute for National Fundamentals.