The Nuclear Regulatory Authority (NRA), with its draconian and illogical safety rules, is not the only entity throwing government nuclear policy into disarray while burdening consumers and smaller businesses across Japan with increased power fees. Judges are also responsible, as they continue to go beyond the NRA in ordering the suspension of operations at nuclear power stations in decisions that are far from fair or equitable.

　　　　　Fair and sound justice is fundamental to any society or nation in order to secure a safe haven for citizens. But the recent results of nuclear power plant trials have me concerned about the state of our justice, as they gravely affect government nuclear policy, obstructing plans to sufficiently power the world’s third-largest economy. A case in point is the utterly irrational verdict handed down last week by Chief Justice Kazutake Mori of the Hiroshima High Court.

　　　　　On January 17, Mori issued a provisional injunction to halt operations at reactor no. 3 of the Shikoku Electric Power’s nuclear power plant in Ikata, Ehime Prefecture, siding with a request from residents in three small nearby islands in the Inland Sea.

　　　　　The case closely resembles the decision made about five years ago by the Fukui District Court in terms of how the hearings were conducted, the principles of the chief judge, and the nature of the verdict. Hideaki Higuchi, who presided over the case, ordered Kansai Electric Power to suspend the operations of the no. 3 and no. 4 reactors at its Takahama nuclear power station.

　　　　　The two judges issued their respective orders under somewhat odd circumstances. Mori was slated to take mandatory retirement on January 25—just eight days after issuing the order. He will most likely have left Hiroshima by the time this column is published. Meanwhile, Higuchi issued his judgment on April 14, 2015, although he had technically been relegated to a family court in Nagoya effective April 1.

　　　　　Both Mori and Higuchi passed what could be described as their “last judgments,” garnering considerable pubic attention at the end of their respective careers. But I cannot help entertaining questions about these decisions.

　　　　　Firstly, I seriously doubt if the two judges had given the defendants thorough hearings before delivering the verdicts. In Mori’s case, he gave Shikoku Electric Power only one hearing, which lasted 90 minutes. In Higuchi’s case, he gave Kansai Electric Power only two hearings. In both cases, requests from the utilities that the court hear their experts state their views and opinions were rejected.

Appalling Errors in Verdicts

　　　　　Another point in common between these cases is the excessive emphasis the two judges attached to residents’ “rights to life.” Five years ago, I had the chance on my weekly Genron Internet TV news show to discuss the “Higuchi verdict” with two experts—Tadashi Narabayashi, a nuclear specialist and professor at Hokkaido University, and Akio Morishima, a civil law specialist and an emeritus professor at Nagoya University.

　　　　　Higuchi’s verdict essentially stated that the “new regulations enforced by the NRA are so loose that meeting the new standards does not necessarily guarantee the safety of nuclear power plants. Therefore, they run the specific risk of impairing the ‘rights to life’ of residents.” Morishima seriously questioned the use of the term “rights to life”—an expression he noted allowed for too broad an interpretation. He stated:

　　　　　“Getting the reactors at the Takahama plant reactivated would not lead to an imminent danger to residents’ lives. Since their ‘rights to life,’ which have a broad range of implications from private information to defamation, were mentioned, the court should definitely have stated which specific right, or rights, were involved.”

　　　　　The “rights to life” as a legal term has yet to be defined precisely in the legal world. Morishima wondered aloud if Higuchi had used the expression in court, where every word must rigidly be defined to ascertain facts, because he presumably was unable to specify how the lives of residents would be imminently endangered if the reactors were to be reactivated. Morishima had similar doubts about the decision on the Ikata power plant that Mori handed down this time at the Hiroshima High Court.

　　　　　Another common point is that the verdicts were marked by inaccuracies and misunderstandings on the part of the judges. The errors committed by Higuchi in suspending the Takahama power plant could easily be discerned, as they were so fundamental.

　　　　　Higuchi wrote that core damage would be done to the reactor in five hours after a loss of power, i.e., an electricity failure. He was completely wide of the mark. Narabayashi pointed out:

　　　　　“The Fukushima No. 1 Plant, where a melting of the reactor core occurred following a colossal tsunami, got close to that point in March 2001. At the Takahama plant, however, a variety of countermeasures have been implemented so water supply and core cooling functions would remain intact up to 18 to 19 days after a total power failure. A gigantic water tank has also been built with Fukushima especially in mind, drastically increasing the source of cooling water at Takahama.”

　　　　　In other words, there would likely be no chance of core damage within five hours of a serious accident. Not only did Higuchi make an erroneous assumption of this fact concerning the Takahama plant, he also had made an almost identical error in rendering a verdict a year before, in May 2015. He had suspended the operations at reactors no. 3 and no. 4 of the Oi Nuclear Power Plant of Kansai Electric Power, also in Fukui Prefecture. How could the same presiding judge, who made two similar errors regarding critically important technical and scientific points about a reactor, be expected to hand down a fair decision?

　　　　　Higuchi also asserted that the utility should upgrade the water supply pipes of its spent nuclear fuel pool and measuring instruments at Oi to “Class S” with maximum earthquake-absorbing strength.

　　　　　“I can only conclude that Higuchi had completely failed to heed the utility’s explanations,” observed Narabayashi. “Actually, the areas Higuchi criticized as insufficient already boasted state-of-the-art ‘S Class’ design and so did the spent nuclear fuel pool.”

People Must Pay the Price

　　　　　Narabayashi also disagreed with Higuchi, who had stated that setting a moratorium on completion of a ‘quake-absorbing’ evacuation center was unacceptable, maintaining that such a crucial structure should already have been completed. Explained Narabayashi:

　　　　　“The quake-absorbing evacuation center attracted national attention at the time of the Fukushima disaster. However, evacuation centers at nuclear plants have since shifted to a ‘quake-resistant’ design, because quake-absorbing rubber used as building material with the previous design was susceptible to horrendous pressure. The Takahama plant already had an S Class ‘quake-resistant’ reactor building completed with an even more solid emergency response room. But Higuchi failed to recognize that. As for the ‘moratorium’ he referred to, he was completely mistaken. The moratorium applies not to quake-absorbing structures but to the so-called ‘special disaster response quarters’ to be built as structures guarding reactors specifically against terrorist attacks. Higuchi mistook this for a quake-absorbing evacuation center.”

　　　　　It is extremely irresponsible of Higuchi to have suspended the operations at the Takahama reactors, failing to properly recognize facts en route to rendering the provisional injunction. But Mori’s verdict was equally problematical in that it included stunning assertions introduced below.

　　　　　In a nutshell, Mori asserted that if there actually is an active fault along the Inland Sea coast of the Sadamisaki Peninsula of Ehime where the plant is located, a strong earthquake could very well hit the plant. He further maintained that Shikoku Electric Power insisted that no active fault existed there without conducting a thorough survey, blaming the NRA simultaneously for assuming that there was no problem with Ikata.

　　　　　During the one 90-minute hearing the court allowed, Shikoku Electric Power provided ample data to show that it had conducted an exhaustive survey concerning the active faults pointed out by the court. Presumably, Mori did not bother to listen to the utility’s explanations. Against this backdrop, Mori took issue with the NRA’s new safety standards, believed to be among the toughest in the world. Court judges are not experts on active faults. Whatever his motive might have been, Mori dared decide to reject as unreliable the safety standards worked out by the nation’s leading nuclear specialists at the NRA.

　　　　　I believe Mori’s case was the same as Higuchi’s in that he obviously had listened only to the assertions of the plaintiffs in rendering his ultimate decision. The unfair and unjust judicial judgment he has made will ultimately lead to the area’s utility costs increasing by \3.5 billion (approximately US$32 million) a month and the people compelled to pay the price. As our pocketbooks suffer, the caliber of our judiciary, supposedly the very foundation of democratic Japan, continues to deteriorate.
(The End)

(Translated from “Renaissance Japan” column no. 886 in the January 30, 2020 issue of The Weekly Shincho)