Published on January 23, 2020. This article introduces Yoshiko Sakurai’s column from Shukan Shincho and criticizes the Hiroshima High Court’s provisional injunction halting operation of Shikoku Electric Power’s Ikata Nuclear Power Plant Unit 3. Through the Nuclear Regulation Authority’s safety review, active fault assessments, the abuse of “personal rights,” and similarities with the earlier Takahama nuclear injunction, it examines how Japan’s judiciary is harming energy policy and the lives of citizens.

January 23, 2020
On top of that, he stepped into the safety review conducted by Japan’s Nuclear Regulation Authority, the strictest in the world.
A judge is not an expert on active faults.
By what qualification he did so is unclear, but he showed himself denying the safety review of the Nuclear Regulation Authority, which is, at least in form, a group of experts.
The following is from Yoshiko Sakurai’s serialized column, published in today’s issue of Shukan Shincho under the title, “Judges Crushing Nuclear Power Are Sapping Japan’s Vitality.”
This essay, too, proves that Yoshiko Sakurai is what Saichō called a “national treasure.”
Any decent Japanese person would surely think that the People’s Honor Award should be given to someone like Yoshiko Sakurai.
The root cause distorting Japan’s energy policy, pushing up electricity rates, and forcing consumers and small and medium-sized businesses to bear the burden was not only the Nuclear Regulation Authority.
Judges who overturn the decisions of the Nuclear Regulation Authority, which possesses powerful authority as an Article 3 commission, and who decide to halt the operation of nuclear power plants on one-sided reasoning that cannot be called fair or impartial, are another root cause.
Only when a sound and fair judiciary is established can society and the nation be places of safety and security.
However, as far as nuclear power lawsuits are concerned, one cannot help being concerned about the current state of Japan’s judiciary.
The most unreasonable example of this is probably the Hiroshima High Court’s decision on January 17.
In a case in which three residents living on three islands in eastern Yamaguchi Prefecture sought an injunction against the operation of Shikoku Electric Power’s Ikata Nuclear Power Plant Unit 3, located in Ikata Town, Ehime Prefecture, Presiding Judge Kazu Take Mori of the Hiroshima High Court decided on a provisional injunction not to allow operation.
The course of this trial, the presiding judge in charge, the actual hearings, and the content of the ruling are extremely similar to the case at the Fukui District Court about five years earlier.
The presiding judge of the Fukui District Court at that time was Hideaki Higuchi.
He was the person who handed down a provisional injunction halting the operation of Kansai Electric Power’s Takahama Nuclear Power Plant Units 3 and 4.
Both Mori and Higuchi were either about to retire or about to be transferred when they halted the operation of nuclear power plants.
Mori will retire on January 25, eight days after this provisional injunction decision, so by the time this magazine appears, he will probably no longer be at the Hiroshima High Court.
On the other hand, Hideaki Higuchi, who had been presiding judge of the Fukui District Court, had already been scheduled for a transfer in April 2015 to the Nagoya Family Court, a demotion, and nevertheless decided to halt operation.
Mori and Higuchi, so to speak, made decisions that drew public attention at the final stage of their careers, but however one looks at it, one cannot help having many questions.
The first point is that, in the process leading to the provisional injunction decision, it does not seem that the claims of the parties were sufficiently heard.
For example, Mori heard Shikoku Electric Power’s opinion only once, in a single 90-minute hearing.
Higuchi held only two hearings with Kansai Electric Power.
In both cases, the requests from the electric power companies to hear expert opinions were rejected.
Errors in the Written Judgment
Another element common to the two trials is the abuse of “personal rights.”
In fact, five years ago, I had doubts about the content of Higuchi’s provisional injunction decision, and I once invited Professor Tadashi Narabayashi of Hokkaido University and Professor Emeritus Akio Morishima of Nagoya University, an authority on civil law, to the internet program Genron TV, where we discussed the Higuchi ruling.
In his ruling, Higuchi wrote, in substance, that “the Nuclear Regulation Authority’s new regulatory standards are too lenient, and even if a plant passes them, safety is not assured. Therefore, there is a concrete danger of violating the personal rights of residents.”
Professor Morishima raised the following doubts about the use of the term “personal rights,” which can be interpreted extremely broadly.
“Even if the Takahama Nuclear Power Plant is operated, it is not an urgent situation in which the very lives of residents will immediately be violated. If one applies the term ‘personal rights,’ which can encompass a wide range of meanings from personal information to defamation, then one must clearly show exactly which right is about to be urgently violated unless the nuclear plant is halted.”
“Personal rights” is not a legal term that has been properly defined.
Nevertheless, Professor Morishima questioned whether the reason such an ambiguous term was used in a courtroom, where each and every word should be strictly defined before facts are recognized, was that they could not explain that it was truly an urgent and dangerous situation.
I have the same doubts about the Hiroshima High Court ruling this time.
Another common point between the two rulings is that errors stand out in the written judgments.
Higuchi’s errors in deciding to halt the Takahama Nuclear Power Plant are extremely elementary, and therefore easy to understand.
He wrote that at the Takahama Nuclear Power Plant, loss of power, in other words a blackout, would lead to core damage in only five hours.
This is completely wrong.
Professor Narabayashi pointed this out.
“The Fukushima Daiichi Nuclear Power Plant was close to such a situation, but at the Takahama Nuclear Power Plant, various measures have been taken, and even if all power is lost, water can be supplied for eighteen to nineteen days, and core cooling can be continued. Especially after the Fukushima accident, huge tanks were built and the amount of cooling water was increased.”
In other words, the Takahama Nuclear Power Plant would not suffer core damage in about five hours.
Higuchi not only misunderstood the facts on this point concerning the Takahama Nuclear Power Plant; he had also made the same misunderstanding regarding the Ōi Nuclear Power Plant, whose operation he had ordered halted one year earlier.
There is no way a presiding judge can make the same mistake twice on an important technical and scientific issue and still judge fairly.
Higuchi also criticized, in the written judgment, that the water supply piping and measuring instruments for the spent nuclear fuel pool should be made S-class, with strong earthquake-resistant design.
“It is hard to think that he listened at all to the electric power company’s explanation. The parts Higuchi pointed out had originally been designed to the same level as S-class. They were of the highest-level design, and the spent nuclear fuel pool itself is S-class as well,” said Professor Narabayashi.
It Will Become a Burden on the People
There is more.
Higuchi pointed out that, in an emergency, a seismically isolated important building is necessary, and that it is strange that there should be a grace period for its construction; in other words, he claimed that such a seismically isolated important building had not yet been completed.
“The seismically isolated important building became famous at Fukushima Daiichi, but because extraordinary pressure is placed on the seismic isolation rubber, plants are now shifting toward earthquake-resistant important buildings. At the Takahama Nuclear Power Plant, there is an S-class earthquake-resistant building, and an emergency response center has been established. Higuchi was unable to recognize this. As for the grace period, he was completely mistaken. The grace period was not for an important seismically isolated building, but for the construction of ‘specific serious accident response facilities’ to prepare for terrorism. Higuchi confused this with the construction of a seismically isolated important building,” said the same Professor Narabayashi.
Higuchi was far too irresponsible in handing down a provisional injunction preventing operation while misunderstanding the facts, but the Mori ruling this time also contains the following astonishing point.
If there is an active fault along the coast on the Seto Inland Sea side of the Sadamisaki Peninsula, a strong earthquake will come to the Ikata Nuclear Power Plant.
However, the ruling says that Shikoku Electric Power claimed there was no active fault without conducting a sufficient investigation, and that the Nuclear Regulation Authority, which judged this to be no problem, had made an error or omission.
In the single 90-minute hearing that Shikoku Electric Power was given, it explained, including data, that it had conducted a sufficient investigation into the active fault at the indicated location.
However, Mori probably paid almost no attention to the electric power company’s explanation.
On top of that, he stepped into the safety review conducted by Japan’s Nuclear Regulation Authority, the strictest in the world.
A judge is not an expert on active faults.
By what qualification he did so is unclear, but he showed himself denying the safety review of the Nuclear Regulation Authority, which is, at least in form, a group of experts.
In the point that he accepted only the residents’ claims, Mori is the same as Higuchi.
The Ikata Nuclear Power Plant has been stopped by a judicial judgment lacking fairness, and costs of at least 3.5 billion yen per month will mount, eventually becoming a burden on the people.
Together with economic pain, the judiciary, which is the foundation of the nation, continues to be eroded.
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