In the aftermath of the Fukushima Daiichi nuclear disaster, which occurred in March 2011. Radioactive materials spread from the power plant continue to remain in the farmlands of Fukushima. Consequently, consumers are reluctant to purchase agricultural products from Fukushima, causing stress to farmers’ livelihoods. Therefore, farmers may naturally consider claiming radioactivity decontamination from the Tokyo Electric Power Company (TEPCO), which was largely responsible for the nuclear accident. However, the Japanese courts have disallowed such claims. This paper reviews the court battle between TEPCO and Hiroyuki Suzuki, a rice farmer from Fukushima’s Otama village, and examines the difficulty in ensuring justice and accountability through the unresolved problem of radioactivity pollution in Fukushima.
Keywords: decontamination, radioactivity, right to demand compensation, right to petition against interference, three-instance system of justice
The Fukushima Daiichi Nuclear Power Plant in Fukushima’s Okuma town had three hydrogen explosions between March 12 and 14, 2011. This accident scattered radioactive materials around a 30-kilometer radius from the power plant, crossing the Fukushima prefecture. Since then, Japanese consumers have been reluctant to purchase agricultural products harvested in Fukushima fearing the possibility of internal radiation exposure from foods produced in polluted agricultural lands.
Consequently, farmers whose livelihoods were affected due to the disaster may naturally consider petitioning against the Tokyo Electric Power Company (TEPCO), which operates the Fukushima Daiichi Nuclear Power Plant, to remove radioactive materials from their farmlands. However, farmers initiating a legal procedure to claim justice against TEPCO’s actions face several difficulties. As a result, TEPCO has managed to avoid taking any legal responsibility to decontaminate radioactive materials in Fukushima’s polluted farmlands. Therefore, focusing on a court battle between TEPCO and Hiroyuki Suzuki, a rice farmer in Fukushima’s Otama village, this study seeks to analyze the process of accountability and justice through the unsolved problem of radioactivity pollution in Fukushima.
REGULATIONS ON FARMING AFTER THE FUKUSHIMA NUCLEAR DISASTER
On March 11, 2011, Japan was hit by a 9.0 magnitude earthquake and tsunami that had a strong impact on the Fukushima Daiichi Nuclear Power Plant. Tsunami flooded over the nuclear reactors and caused a nuclear meltdown. On March 12, 2011, the government marked the plant’s 30-kilometer radius as the “evacuation zone (EZ)” and evacuated all the citizens from this radius except the plant’s crew members.
The hydrogen explosions between March 12 and 14 scattered radioactive materials even beyond the 30-kilometer radius. On April 22, 2011, the government demarcated an additional restricted zone, called the “planned evacuation zone (PEZ),” where the radioactivity accumulated in the next 12 months was estimated to exceed 20 mSv. Citizens in the PEZ and the EZ were ordered to evacuate according to the government’s arrangement. Without the government’s special permission, citizens were not allowed to stay in either the EZ or the PEZ.
On April 1, 2012, the government heavily revised its zoning system for evacuating citizens in Fukushima. It combined the PEZ and the EZ into a new zone called the "decontamination special area (DSA),” which was subdivided into three subzones: the “difficult-to-return zone (DZ);" the "restricted residence area (RRD);" and the "zone in preparation for the lifting of the evacuation order (ZPLEO)." The DZ refereed to the areas where the radioactivity level (measured by the estimated dose of radioactivity accumulated in the next 12 months) was more than 50 mSv, and was unlikely to decrease to less than 20 mSv in at least the next 60 months. The ZPLEO referred to the area where the radioactivity level was soon estimated to decrease below 20 mSv, after which citizens were permitted to live there and resume economic activities. The remaining areas were zoned as the RRD. Entry into the DZ was forbidden except for those engaged in radioactivity decontamination and reconstruction work. In the RRD, the evacuated citizens could return home for only a couple of hours during daytime. In the ZPLEO, economic activities such as farming, were allowed under certain conditions.
Since July 17, 2012, the government has occasionally revised its zoning rules for the DSA, based on its progress with radioactivity decontamination in residential and public areas (in principle, farmlands are outside the scope of the government’s radioactivity decontamination works). As a result, the areas under the DSA have considerably shrunk over the subsequent years.
Notably, in Fukushima, the soil in areas outside the DSA are also likely to be polluted with radioactive materials to some extent (although not as much as in the DSA). This has added to the consumers’ anxiety regarding the safety of agricultural products harvested in Fukushima due to the possibility of radioactive materials transferring from the soil to the agricultural products.
Therefore, to alleviate consumers’ anxiety about internal radiation exposure from contaminated foods grown in Fukushima, the government framed two regulations for farming in farmlands outside the DSA[i]. The first regulation prevents farming in farmlands with radioactivity level of the soil exceeding 5,000 Bq/kg. Second, agricultural products exceeding radioactivity levels of 100 Bq/kg are prohibited to be sold. Therefore, farmers are only free to farm and sell agricultural products if the radioactivity level of soil and agricultural products are below 5,000 Bq/kg and 100 Bq/kg, respectively[ii]. However, this does not imply that the risk of internal exposure is zero. Experts admit that even low levels of radioactivity contamination are unfavorable for the consumers’ health. In fact, due to consumers’ continued anxiety regarding radiation exposure, since the nuclear disaster, the farmers in Fukushima have been unable to get a fair price for agricultural products harvested in the region.
FRAMEWORK FOR COMPENSATING FARMER’S LOSS IN FUKUSHIMA
Due to the adverse economic and health-related impact of the Fukushima Daiichi nuclear disaster, farmers in Fukushima may be considered well within their rights to demand compensation from TEPCO, which was responsible for operating the nuclear power plant. However, winning compensation from TEPCO appears to be a challenging process for the farmers. Furthermore, to claim compensation, the following three questions must be settled: (i) what is the estimated reduction in each farmer’s income due to the Fukushima Daiichi nuclear disaster? (ii) what percentage of the farmer’s reduced income should be compensated by TEPCO? and (iii) by when should the compensation money be paid? For (i), a simple comparison with the income levels of 2010 (before the Fukushima Daiichi nuclear disaster) would be insufficient, because agricultural income reflects various factors such as climate and the national economy. For (ii) and (iii), considering the limitation of TEPCO’s financial ability, it is difficult to ascertain the suitable amount and time-frame for compensating the farmers. Thus, tough negotiations are unavoidable for farmers deciding to file a lawsuit against the company.
Apart from farmers, many citizens (including legal entities) in Fukushima face a similar problem if they wish to demand compensation from TEPCO. Nevertheless, to support the farmers and other citizens, the government established the Nuclear Damage Dispute Resolution Center (NDDRC) in August 2011, which promotes and oversees out-of-court settlements between the citizens and TEPCO. In legal terms, this framework is known as an “alternative dispute resolution (ADR)”.
Compared to a civil trial, an ADR is more convenient for the citizens to claim damages from TEPCO; however, the company itself has no obligation to work out compromises with citizens through an ADR. If TEPCO refuses to comply with the ADR, citizens have two choices: one is to bring their cases into court while accepting heavy burdens (in terms of money and time) of a court battle, and the other is to give up claiming damages from TEPCO altogether. Around 2018, TEPCO was reported to be more inclined to refuse an ADR[iii].
HIROYUKI SUZUKI AND OTAMA VILLAGE
The Otama is a village that is 60 kilometers away from the Fukushima Daiichi Nuclear Power Plant. While it has never been included in the PEZ or the DSA, it does not make the village immune from radioactivity pollution. On the contrary, because Otama lies on the leeward direction of the nuclear power plant, when its nuclear reactors exploded, the radioactivity levels in the village was (and still is) relatively high among the municipalities in Fukushima[iv].
Hironori Suzuki (aged 71 years) is considered a pioneer among the rice farmers in Otama. In 1980, Suzuki established a limited liability company, called Nosagyo Gojokai (which literally translates to “mutual support company for rice farming”). Nosagyo Gojokai was innovative in the following three senses. First, it was the first farming-based company (a legal entity) in Otama. Second, although owner-led farming was more dominant in Otama, Nosagyo Gojokai specialized in tenant and contract-based farming. Third, the company developed its own rice market for the consumers in Tokyo, whereas an overwhelming majority of rice farmers in Otama sold their rice to the government through Nokyo, Japan’s nationwide network of agricultural cooperatives[v]. Suzuki seemed somewhat eccentric when he established Nosagyo Gojokai. However, after establishing Nosagyo Gojokai, tenant farming and contract farming saw a rapid growth, while Nokyo’s share in rice marketing saw a sharp drop in the village. Presently, Suzuki is recognized as a persistent person and a successful revolutionary in Otama.
SUZUKI’S ACTION AFTER THE FUKUSHIMA NUCLEAR POWER DISASTER
The soil in Nosagyo Gojokai’s farmlands has not exceeded radioactivity levels of 5,000 Bq/kg; neither has the rice produced by it exceeded radioactivity levels of 100 Bq/kg. Despite this, its farmlands continue to contain residual radioactive materials from the Fukushima Daiichi Power Plant, which has seriously disadvantaged its rice sale to the consumers. In fact, after the nuclear disaster, Nosagyo Gojokai lost 80% of its former regular customers. Under these circumstances, Suzuki considered advancing two types of claims against TEPCO. One is based on the right to demand compensation; that is, TEPCO should compensate for the loss of Nosagyo Gojokai’s farm income. The other is based on the right to petition against interference; that is TEPCO should remove the radioactive materials spread from the Fukushima Daiichi Nuclear Power Plant, which illegally interrupted Nosagyo Gojokai’s farming activities. The ADR’s framework is applicable to the former claim, but not to the latter. Thus, Suzuki brought the compensation claim to the NDDRC, and the petition against interference to the court. In October 2011, Suzuki formed a plaintiff group with four rice farmers in Fukushima and approached lawyers from the Moritokaze Law Office for the court battle[vi]. TEPCO was the defendant. This was (and still is) the only case where a farmer in Fukushima has approached the court to demand TEPCO to decontaminate radioactive materials.
SUZUKI’S ECONOMIC DAMAGES FROM THE FUKUSHIMA NUCLEAR POWER DISASTER
As seen in Figure 1, Nosagyo Gojokai’s annual revenue reduced by nearly 10 to 20 million yen annually after the Fukushima Daiichi nuclear disaster. Nosagyo Gojokai’s annual revenue consists of rice sale to consumers and the revenue from providing contract farming services to small-size rice farmers who do not have their own rice planting and harvesting machineries. However, through ADR, TEPCO has compensated only a limited portion of rice farmers. Namely, in the first two years after the Fukushima Daiichi nuclear disaster TEPCO has paid 11.2 million yen to compensate for Nosagyo Gojokai’s loss. While Suzuki is trying to acquire more compensation from TEPCO, TEPCO is not certain they wish to proceed further in the ADR process.
It should be noted that, in addition to the revenue reduction, Nosagyo Gojokai received various economic damages because of the Fukushima nuclear power disaster. For example, Nosagyo Gojokai bore the costs of surveying the effect of radioactivity contamination on farmland, agricultural machineries, and workers. In addition, rice inventory costs also increased because it became more difficult to find customers to choose Nosagyo Gojokai’s rice. However, these costs are paid for using the compensation from ADR. Therefore, it is safe to conclude that the ADR framework is insufficient for compensating Nosagyo Gojokai’s economic damages caused by the Fukushima Daiichi nuclear power disaster.
JAPAN’S THREE-INSTANCE SYSTEM OF JUSTICE
Before discussing Suzuki’s court battle against TEPCO, it would be useful to review Japan’s three-instance system of justice for a civil trial. Japan has a three-tier system for court cases. The highest tier has the Supreme Court. In the second tier, Japan has eight high courts in the following cities: Tokyo, Osaka, Nagoya, Sendai, Hiroshima, Takamatsu, Fukuoka, and Sapporo. The third tier consists of 50 district courts, 50 family courts, and 438 summary courts. As per the three-instance system of justice, the first trial should be carried out at either a district, family, or a summary court based on the nature of the case. High courts are a higher appellate body of the second tier, where each high court has its own jurisdiction. Both the defendant and the plaintiff are qualified to bring an intermediate appeal to the high court in their region if they are unsatisfied with the judgment from the first trial. The high court also examines whether the fact-finding and the interpretation of the law in the first trial were appropriate. The evidence from the first trial carries on to the high court trial; however, the defendant and the plaintiff can submit new evidence to the high court. In that case, the party submitting new evidence must clarify the reason for not submitting it to the lower court.
Both the defendant and the plaintiff are qualified to appeal to the supreme court if they are unsatisfied with the judgment by the high court. Fact-finding and evidence from the lower courts are carried forward to the Supreme Court and neither the defendant nor the plaintiff are allowed to submit new evidence at this stage of the trial. The Supreme Court is responsible only for making judgments on whether the interpretation of the constitution and law by the lower court is appropriate, and whether the judge in the relevant precedent case should be altered, for whatever reasons.
SUZUKI’S COURT BATTLE AGAINST TEPCO
Asserting his right to petition against interference, On October 14, 2014, Suzuki brought a civil action suit against TEPCO at the Fukushima District Court. In his primary claim, Suzuki requested TEPCO to remove all the radioactive materials in his farmland, which was spread from the Fukushima Daiichi Nuclear Power Plant. As the preliminary claim, Suzuki requested TEPCO to do the following things. (i) TEPCO should reduce the radioactivity contamination level in Suzuki’s farmland to less than 500 Bq/kg. (ii) TEPCO should remove a 30-centimeter layer of the contaminated topsoil from Suzuki’s farmland and replace it with new soil from elsewhere to improve its fertility. (iii) TEPCO should admit that it had illegally interrupted Suzuki’s farming activities due to its complicity in the spread of radioactive materials from the Fukushima Daiichi Nuclear Power Plant.
During the trial, Suzuki faced one hurdle after another. For example, Suzuki had to submit evidence documents showing the extent of damage in his farmland caused by pollution from radioactive materials. To satisfy this requirement, Suzuki had to hire an expert holding the national license of a “working environment measurement expert.” In addition, Suzuki required a special document where the local authority (namely, the Otama village office) testified that Suzuki was victim of the Fukushima Daiichi nuclear disaster. However, as there was no precedent of a local authority issuing such a document to farmers owning farmlands polluted by radioactive materials, the local authority showed a negative attitude toward Suzuki’s case. Only after tough lobbying, Suzuki could obtain the local authority’s certificate, which recognized Suzuki as a victim of the Fukushima Daiichi nuclear disaster.
In April 2017, the Fukushima District Court decided against Suzuki. The main reason was that Suzuki failed to specify what TEPCO should do supposing his preliminary claim was accepted. Unsatisfied with the judgment, Suzuki filed an intermediate appeal to the Sendai High Court. Here, Suzuki claimed that he had specified the action to be taken by TEPCO in his preliminary claim and that the judgment of the Fukushima District Court should be overridden.
In March 2018, favoring Suzuki’s claim, the Sendai High Court remanded Suzuki’s case to the Fukushima District Court. Thereafter, dissatisfied with this remand, TEPCO appealed the case to the supreme court. In August 2018, the supreme court rejected TEPCO’s appeal and accordingly, the trail restarted at the Fukushima District Court. In October 2019, the district court’s judgment declared that TEPCO was not obliged to remove radioactive materials in Suzuki’s farmland (this implies that the first two components of Suzuki’s preliminary claim were rejected). Furthermore, the court did not pass a judgment on whether Suzuki would receive any benefits even if a clause (iii) of Suzuki’ preliminary claim was admitted. Simultaneously, the Fukushima District Court judged that Suzuki could himself address clauses (i) and (ii) of his preliminary claim (decontaminating his farmland and replacing a 30-centimeter layer of the topsoil with new soil) by himself and then approach the court to demand compensation for the expenditure from TEPCO. This implies that the district court had advised Suzuki to bring the case before the court based on the right to demand compensation instead of the right to petition against interference. However, fulfilling clause (ii) of the preliminary claim by himself would cost Suzuki nearly 60 million yen, which is beyond his financial ability. Moreover, it is uncertain whether TEPCO would indemnify the amount of 60 million yen later. Thus, the Fukushima District Court’s suggestion was unfeasible.
According to Suzuki, the Fukushima District Court’s judgment failed to guarantee him his constitutional right to property. In addition, Suzuki required a favorable judgment on the (iii) clause of the preliminary claim because it would benefit his negotiation strategy for the ADR proceedings against TEPCO (which claimed the loss of farm income from the nuclear disaster). Thus, Suzuki filed another appeal to the Sendai High Court. In September 2020, the high court upheld the judgment by Fukushima District Court, after which he appealed to the Supreme Court. Presently, Suzuki is waiting for the Supreme Court’s judgment.
If Suzuki wins this court battle, it would encourage many farmers in Fukushima, whose farmlands were polluted with radioactive materials from the Fukushima Daiichi Power Plant, to file similar claims against TEPCO. In that case, the financial burden from conducting radioactivity decontamination would be too severe to keep TEPCO in business. Notably, as a public utility company, TEPCO is also in charge of supplying electricity to Tokyo and the adjacent prefectures. Therefore, TEPCO’s going out of business would considerably paralyze the Japanese society. This may have led to an implicit pressure for the Japanese courts in ruling against Suzuki’s claims.
In my interview with Suzuki, he admits that he is at an adverse situation due to court battle against TEPCO. As mentioned earlier, despite his determination to hold TEPCO responsible for their actions, Suzuki has borne considerable costs of time and money for this court battle.
Finally, as long as radioactive materials remain in Fukushima’s farmlands, the farmers’ and consumers’ anxiety regarding agricultural products harvested in Fukushima will not be relieved. However, without the support from the government and the judiciary, TEPCO is unlikely to take charge of radioactivity decontamination, and the problem of radioactive contamination in the aftermath of the Fukushima Daiichi nuclear disaster remains one of the most serious unsolved problems in the region.
[i] For details on the government’s regulatory principles on radiation contamination of food, see Yoshihisa Godo’s, “Regulation Values for Radioactive Materials in Food after the Fukushima Nuclear Power Plant Accident,” FFTC Agricultural Policy Database (Food & Fertilizer Technology Center for the Asian and Pacific Region), October 1, 2014 and “Regulation Values for Radioactive Materials in Food after the Fukushima Nuclear Power Plant Accident,” FFTC Agricultural Policy Database (Food & Fertilizer Technology Center for the Asian and Pacific Region), November 4, 2014.
[ii] In fact, many agricultural groups in Fukushima promote stricter regulations on radiation contamination as a form of self-imposed control: For example, marking contaminated agricultural products at the not-identified (ND) level. The ND level depends on the quality of the measuring instrument. Generally, the ND level falls between 25 Bq/kg and 5 Bq/kg.
[iii] “Genpatsu ADR Uchikiri Kyuzo (TEPCO prefers discontinuing ADR negotiations)” Tokyo Shimbun, morning edition, August 12, 2019.
[v] For details on Nokyo and its rice marketing system, see Godo, Yoshihisa, “Estimating Agricultural Cooperatives’ Share of Agricultural Input and Output Markets,” FFTC Agricultural Policy Database (Food & Fertilizer Technology Center for the Asian and Pacific Region), March 4, 2015.
[vi]Moritokaze Law Office is known for its active engagement with ecological movements.