From November 29, 2016 The harvests of Chernobyl https://aeon.co/essays/ukraine-s-berry-pickers-are-reaping-a-radioactive-bounty
“On the afternoon of March 12, the day following the earthquake, Plaintiffs arrived off the coasts of Fukushima Prefecture aboard the aircraft carrier U.S.S. Ronald Reagan and other vessels to provide humanitarian aid. Plaintiffs allege that TEPCO promulgated false information regarding the extent of the damage to the FNPP, misleading the public, Japanese officials, and the U.S. military. They allege that TEPCO’s management publicly announced that there was no danger to those participating in Operation Tomodachi, despite knowing that there was a risk of radiation exposure. Plaintiffs claim that they and U.S. military officials were unaware of the extent of the radiation leak and that they would not have been deployed as close to the FNPP had TEPCO been forthcoming about the damage. They further allege that the U.S. military would not ordinarily discover such radiation absent sufficient warning. On March 14, two days after their arrival, Plaintiffs allege that their vessels were repositioned further away from the FNPP after U.S. officials onboard the U.S.S. Ronald Reagan detected nuclear contamination in the air and on an aircraft operating near the FNPP. “Sensitive instruments” aboard the U.S.S. Ronald Reagan discovered measurable levels of radioactivity on seventeen aircrew members returning from relief missions.”
(U.S. Navy photo by Mass Communication Specialist 3rd Class Kevin B. Gray/Released, via Flickr)
“COOPER V. TOKYO ELECTRIC POWER, Page 4
Filed June 22, 2017
Before: A. Wallace Tashima, Kim McLane Wardlaw, and Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee
The panel affirmed the district court’s denial of Tokyo Electric Power Company, Inc.’s motion to dismiss a putative class action brought by members of the U.S. Navy who allege that they were exposed to radiation when deployed near the Fukushima Daiichi Nuclear Power Plant as part of Operation Tomodachi, a relief effort following the 2011 earthquake and tsunami on Japan’s northeastern coast.
The panel held that Article XIII of the Convention on Supplementary Compensation for Nuclear Damage (“CSC”) did not strip U.S. courts of jurisdiction over claims arising out of nuclear incidents that occurred prior to the CSC’s entry into force on April 15, 2015.
The panel held that the district court did not abuse its discretion when it decided to maintain jurisdiction, and did not dismiss plaintiffs’ claim on international comity grounds. First, the panel held that the district court did not abuse its
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
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discretion in weighing U.S. and Japanese interests, and in concluding that the parties’ ties to the United States outweighed the fact that the alleged negligent conduct occurred in Japan. The panel noted that Japan has a strong interest in centralizing jurisdiction over Fukushima Daiichi Nuclear Power Plant-related claims, and the United States had a strong interest in maintaining jurisdiction over this in order to help promote the CSC. Second, the panel held that the district court did not abuse its discretion in finding that Japan would provide an adequate alternative forum for resolving plaintiffs’ claims. Finally, the panel held that because comity is not a jurisdictional decision, it is a fluid doctrine, and the district court would be free to revisit the question should either the facts or the interests of the governments change.
The panel held that the district court did not abuse its discretion in declining to dismiss on forum non conveniens grounds.
The panel held that at this stage in the litigation, it was unable to undertake the “discriminating inquiry” necessary to determine if the case presented a political question because there were outstanding basic factual questions regarding the Navy’s operations during Operation Tomodachi. The panel concluded that the political question doctrine did not currently require dismissal, but Tokyo Electric Power Company was free to raise the political question doctrine again, if and when, further developments demonstrated that a political question was inextricable from the case.
The panel provided no opinion as to whether California’s firefighter’s rule applied to military service members and, if so, whether it barred plaintiffs’ claims.
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Daniel Paul Collins (argued), Rio S. Pierce, and Gregory P. Stone, Munger Tolles & Olson LLP, Los Angeles, California; Bryan H. Heckenlively, Munger Tolles & Olson LLP, San Francisco, California; for Defendant-Appellant.
Adam Cabral Bonner (argued) and Charles A. Bonner (argued), Law Offices of Bonner & Bonner, Sausalito, California; Paul C. Garner (argued), Rancho Mirage, California; John R. Edwards, Edwards Kirby, Raleigh, North Carolina; Catherine E. Edwards, Edwards Kirby, Del Mar, California; for Plaintiffs-Appellees.
BYBEE, Circuit Judge:
On March 11, 2011, a 9.0 earthquake and a massive tsunami struck Japan’s northeastern coast. The United States participated in a relief effort known as Operation Tomodachi (Japanese for “friend”). The plaintiffs in this putative class action lawsuit are members of the U.S. Navy who allege that they were exposed to radiation when deployed near the Fukushima Daiichi Nuclear Power Plant (“FNPP”) as part of Operation Tomodachi. The earthquake and tsunami damaged the FNPP, causing radiation leaks. Plaintiffs sued Defendant Tokyo Electric Power Company, Inc. (“TEPCO”), the owner and operator of the FNPP, in the Southern District of California for negligence and other causes of action. TEPCO moved to dismiss the case on the grounds of international comity, forum non conveniens, the political question doctrine, and the firefighter’s rule. The district court denied the motion
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on all grounds, but certified its order denying TEPCO’s motion to dismiss for immediate appeal under 28 U.S.C. § 1292(b). We agreed to take the interlocutory appeal. At this interlocutory stage in the proceedings, we affirm the district court’s denial of TEPCO’s motion to dismiss on all grounds. Further developments, however, may require the district court to revisit some of the issues that TEPCO raised in its motion to dismiss.
I. FACTS AND PROCEDURAL HISTORY
A. The FNPP Meltdown
The March 2011 earthquake and resulting tsunami were nothing short of devastating. 1 Over 15,000 deaths were reported, and there was immense damage to the region’s infrastructure. Cleanup efforts continue to this day, over six years later. One of the most alarming consequences of the catastrophe was the damage to the FNPP. The incident has been described as the worst nuclear accident since Chernobyl. The FNPP consisted of six boiling water reactors. At the time of the earthquake, only units one through three were in operation. The earthquake triggered an automatic shutdown of the three operating units. Water from the tsunami, however, disabled generators necessary to cool the reactors, causing the three units to melt down and leak radiation. Plaintiffs allege that the first meltdown occurred five hours after the earthquake and that units one through three exploded that same day. They further allege that over 300 tons of contaminated water from the FNPP began seeping into the sea after the meltdown.
1 We take the facts from Plaintiffs’ complaint and, for our purposes, we assume them to be true.
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On the afternoon of March 12, the day following the earthquake, Plaintiffs arrived off the coasts of Fukushima Prefecture aboard the aircraft carrier U.S.S. Ronald Reagan and other vessels to provide humanitarian aid. Plaintiffs allege that TEPCO promulgated false information regarding the extent of the damage to the FNPP, misleading the public, Japanese officials, and the U.S. military. They allege that TEPCO’s management publicly announced that there was no danger to those participating in Operation Tomodachi, despite knowing that there was a risk of radiation exposure. Plaintiffs claim that they and U.S. military officials were unaware of the extent of the radiation leak and that they would not have been deployed as close to the FNPP had TEPCO been forthcoming about the damage. They further allege that the U.S. military would not ordinarily discover such radiation absent sufficient warning.
On March 14, two days after their arrival, Plaintiffs allege that their vessels were repositioned further away from the FNPP after U.S. officials onboard the U.S.S. Ronald Reagan detected nuclear contamination in the air and on an aircraft operating near the FNPP. “Sensitive instruments” aboard the U.S.S. Ronald Reagan discovered measurable levels of radioactivity on seventeen aircrew members returning from relief missions.
In the months following the earthquake, Japan commissioned the Fukushima Nuclear Accident Independent Investigation Commission (the “Commission”) to investigate the incident. The Commission determined that the meltdown was foreseeable in light of the known tsunami risks in the region and that TEPCO and the relevant regulatory bodies failed to take adequate precautions to prevent the incident. Though the earthquake and tsunami were natural disasters,
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the Commission characterized the FNPP meltdown as a “manmade” disaster. In 2013, TEPCO also allegedly admitted that it could have avoided the meltdown.
In an effort to compensate victims of the FNPP meltdown, the Japanese government developed a comprehensive scheme to deal with the millions of claims resulting from the FNPP leak, giving claimants the option to submit a claim directly to TEPCO, to the newly established Nuclear Damage Claim Dispute Resolution Center, or to a Japanese court. These avenues for relief are available to all victims, regardless of nationality. Over $58 billion has been paid out to victims of the disaster. Brief of Amicus Curiae the Government of Japan 1–2, ECF No. 23. The Japanese government has provided immense financial support to TEPCO to keep TEPCO solvent. Although Plaintiffs could have pursued their claims against TEPCO in Japan, they chose to sue in the United States.
B. District Court Proceedings
Each Plaintiff in the present suit alleges that he or she was exposed to radiation during Operation Tomodachi. Plaintiffs request a judgment compelling TEPCO to establish a billion-dollar fund to cover continuing medical monitoring costs. They also request damages, including lost wages, non-economic damages, and punitive damages.
In Plaintiffs’ First Amended Complaint (“FAC”), they alleged that TEPCO and the Japanese government conspired to keep the extent of the radiation leak secret. They further alleged that “the U.S. Navy was lulled into a false sense of security,” which led it to deploy Plaintiffs “without doing the kinds of research and testing that would have verified” the
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extent of the nuclear meltdown. The district court found that adjudicating this claim would require impermissible scrutiny of discretionary military judgments and would also require the court to evaluate communications between the U.S. and Japanese governments regarding the FNPP. Accordingly, the district court dismissed the FAC under the political question doctrine but granted Plaintiffs leave to amend. Cooper v. Tokyo Elec. Power Co., Inc. (Cooper I), 990 F. Supp. 2d 1035, 1039–42 (S.D. Cal. 2013).
In the Second Amended Complaint (“SAC”), Plaintiffs removed their conspiracy allegations and relied instead on allegations that TEPCO was negligent in operating the FNPP and in reporting the extent of the radiation leak. TEPCO filed a motion to dismiss, arguing that the SAC still presented a political question because determining whether TEPCO’s conduct was the proximate cause of Plaintiffs’ injuries would require the court to evaluate the Navy’s decision to deploy troops near the FNPP. TEPCO also argued that, given Japan’s extensive efforts to compensate FNPP victims, the SAC should be dismissed under the doctrines of international comity or forum non conveniens. TEPCO further contended that the so-called firefighter’s rule, which bars first responders from suing those who cause the emergency to which they respond, barred Plaintiffs’ claims.
The district court denied TEPCO’s motion to dismiss.2
Shortly thereafter, TEPCO filed a motion for reconsideration
2 The SAC contained ten causes of action, including claims for negligence, strict liability, nuisance, and intentional infliction of emotional distress. The district court granted TEPCO’s motion to dismiss with respect to Plaintiffs’ claims of design defect and intentional infliction of emotional distress but let the remaining eight causes of action proceed.
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in light of our opinion in Mujica v. AirScan, Inc., 771 F.3d 580 (9th Cir. 2014), which provided additional guidance to district courts on how to determine whether to dismiss a case on international comity grounds. The district court granted TEPCO’s motion for reconsideration, but again denied TEPCO’s motion to dismiss. Cooper v. Tokyo Elec. Power Co., Inc. (Cooper II), 166 F. Supp. 3d 1103 (S.D. Cal. 2015). The district court concluded that the SAC’s restyling of Plaintiffs’ claims no longer implicated any political questions because it focused on TEPCO’s negligence rather than the military’s decision to deploy troops. Id. at 1117–24. The district court also rejected TEPCO’s alternative theories for dismissal. Id. at 1126–28, 1130–40. Per TEPCO’s request, the district court certified the issues for immediate appeal under 28 U.S.C. § 1292(b). Id. at 1141–43.
C. Appellate Proceedings
On appeal, TEPCO urges us to reverse the district court’s determinations regarding international comity, forum non conveniens, the political question doctrine, and the firefighter’s rule. The government of Japan, which had expressed no views on the location of this litigation to the district court, also filed an amicus brief urging us to reverse the district court’s decision and order the district court to dismiss Plaintiffs’ claims so that Plaintiffs can pursue their claims in Japan. In its brief, the Japanese government expresses concern that foreign lawsuits such as Plaintiffs’ could threaten the viability of Japan’s continuing efforts to ensure that all FNPP victims receive fair compensation.
In light of Japan’s brief, we solicited the United States Department of State’s views on whether this litigation should proceed in the United States. In response, the United States
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filed an amicus brief arguing that the district court did not err in allowing Plaintiffs’ claims to proceed for the time being. Specifically, the United States opines that allowing Plaintiffs’ lawsuit to continue in the United States is consistent with U.S. efforts to promote the Convention on Supplementary Compensation for Nuclear Damage (“CSC”).
The parties each filed supplemental briefs in response to the United States’ position. General Electric Co. (“GE”)3 also filed an amicus brief responding to the United States’ argument that maintaining jurisdiction will help promote the CSC. Both TEPCO and GE argue that, although it did not enter into force until after Plaintiffs’ litigation was already pending, the CSC strips all U.S. courts of jurisdiction over claims arising out of the FNPP incident. If correct, TEPCO and GE’s argument undermines the United States’ position that maintaining jurisdiction in the United States will help promote the CSC, and provides an independent basis for dismissing Plaintiffs’ claims.
We begin by addressing whether the CSC strips U.S. courts of jurisdiction over Plaintiffs’ claims. 4 We then
3 GE is a defendant in the district court but not a party to this appeal. Plaintiffs claim that GE is liable for defectively designing the FNPP’s reactors.
4 GE raised this argument in the district court, but the district court has yet to rule on it. Because TEPCO and GE’s argument questions our jurisdiction, we may consider it in the first instance on appeal. See Allstate Ins. Co. v. Hughes, 358 F.3d 1089, 1093 (9th Cir. 2004) (“The court has a continuing obligation to assess its own subject-matter jurisdiction . . . .”).
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address TEPCO’s arguments regarding international comity, forum non conveniens, the political question doctrine, and the firefighter’s rule.
A. Jurisdiction Under the CSC
The CSC is an attempt to create “a worldwide liability regime” for dealing with nuclear accidents. Convention on Supplementary Compensation for Nuclear Damage, Preamble, opened for signature Sept. 29, 1997, S. Treaty Doc. No. 107-21 (2002) [hereinafter CSC]. One of the main goals of such a regime is to control the nuclear energy industry’s liability exposure, thus ensuring the continuing viability of the industry, while at the same time ensuring compensation for victims of nuclear accidents. Prior to the CSC, there were two major conventions addressing liability for nuclear accidents: the Paris Convention on Third Party Liability in the Field of Nuclear Energy of July 1960 and the Vienna Convention on Civil Liability for Nuclear Damage of May 1963. Both of these conventions included a number of provisions aimed at compensating victims of nuclear accidents while keeping the nuclear energy industry viable, such as imposing strict liability on operators of nuclear installations, requiring those operators to maintain insurance in certain amounts, permitting countries to cap the liability of nuclear installation operators, requiring countries to fund compensation for nuclear damage should private insurance be inadequate, and centralizing jurisdiction over claims arising out of nuclear incidents in the country where the nuclear incident occurred. Vienna Convention on Civil Liability for Nuclear Damage arts. II, V, VII, XI, May 21, 1963, 1063 U.N.T.S. 266; Paris Convention on Third Party Liability in the Field of Nuclear Energy arts. 6–7, 10, 13, 15, July 29, 1960, 956 U.N.T.S. 251. The United States was not a party
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to either of these conventions, but enacted similar measures in the Price-Anderson Nuclear Industries Indemnity Act of 1957. See 42 U.S.C. § 2210.
To join the CSC, a country must be a party to the Vienna or Paris Conventions or have laws (such as the Price-Anderson Act) that meet the requirements set forth in the CSC’s annex. The CSC builds upon these prior conventions and national laws by creating an international supplementary compensation fund for victims of nuclear incidents. Under the CSC, contracting countries are required to ensure the availability of a certain amount of funds to compensate victims of a nuclear incident that occurs within their territories. CSC art. III. Beyond that amount, the contracting countries will contribute to a supplemental compensation fund. Id. Like the Paris and Vienna Conventions, the CSC also provides that “jurisdiction over actions concerning nuclear damage from a nuclear incident shall lie only with the courts of the Contracting Party within which the nuclear incident occurs.” Id. art. XIII(1).
The CSC was set to enter into force ninety days after “the date on which at least 5 States with a minimum of 400,000 units of installed nuclear capacity” ratified it. CSC art. XX(1). The CSC opened for signature on September 29, 1997, at which time the United States signed it. See Int’l Atomic Energy Agency, Status Report on the Convention on Supplementary Compensation for Nuclear Damage (2016). The United States ratified the CSC in May 2008, id., but it was not until Japan signed and ratified the CSC on January 15, 2015, almost four years after the FNPP incident, that there were enough parties to put the CSC into effect. Ninety days later on April 15, 2015, the CSC entered into force, almost two-and-a-half years after Plaintiffs first filed this suit. Id.
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TEPCO and GE do not argue that the entirety of the CSC applies to the FNPP incident. Rather, they acknowledge the general principle that “[u]nless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.” Vienna Convention on the Law of Treaties art. 28, May 23, 1969, 1155 U.N.T.S. 331.5 Based on this principle, TEPCO and GE accept that the CSC’s supplemental fund is unavailable for nuclear incidents occurring before the CSC’s entry into force, including the FNPP incident. Appellant’s Opening Brief 28, ECF No. 14; Appellant’s Supplementary Brief 10, ECF No. 98; Brief of Amicus Curiae GE 11, ECF No. 96. TEPCO and GE maintain, however, that Article XIII’s mandate that “jurisdiction over actions concerning nuclear damage from a nuclear incident shall lie only with the courts of the Contracting Party within which the nuclear incident occurs” applies to cases pending before the CSC entered into force.
This is so, TEPCO and GE argue, because jurisdictional provisions are not subject to limits on retroactive application. In support of this contention, TEPCO and GE cite a long list of cases explaining that jurisdictional provisions do not retroactively alter substantive rights, but only alter where plaintiffs can go to obtain prospective relief. Accordingly,
5 Although the United States is not a party to the Vienna Convention on the Law of Treaties, it acknowledges the non-retroactivity principle as an element of customary international law. United States’ Brief 13 n.5, ECF No. 81; see Mora v. New York, 524 F.3d 183, 196 n.19 (2d Cir. 2008) (“The Department of State considers the Vienna Convention on the Law of Treaties an authoritative guide to current treaty law and practice.”).
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TEPCO and GE argue that jurisdiction-stripping provisions such as the one at issue here presumptively apply to pending cases. See, e.g., Landgraf v. USI Film Prods., 511 U.S. 244, 274 (1994) (“We have regularly applied intervening statutes conferring or ousting jurisdiction, whether or not jurisdiction lay when the underlying conduct occurred or when the suit was filed. . . . Application of a new jurisdictional rule usually ‘takes away no substantive right but simply changes the tribunal that is to hear the case.’” (citation omitted)); Bruner v. United States, 343 U.S. 112, 116–17 (1952) (“This rule—that, when a law conferring jurisdiction is repealed without any reservation as to pending cases, all cases fall with the law—has been adhered to consistently by this Court.”); Duldulao v. INS, 90 F.3d 396, 399 (9th Cir. 1996) (“The Supreme Court has long held that ‘when a law conferring jurisdiction is repealed without any reservation as to pending cases, all cases fall within the law.’” (citation omitted)). TEPCO and GE also argue that the same principle applies to jurisdictional provisions in treaties. See, e.g., Third Report on the Law of Treaties,  2 Y.B. Int’l L. Comm’n 11, U.N. Doc. A/CN.4/167 (suggesting that certain jurisdictional provisions in treaties apply to any “dispute which exists between the parties after the coming into force of the treaty” regardless of whether “the dispute concerns events which took place prior to that date.”). In short, because the courts of Japan are undisputedly open to Plaintiffs, and because Article XIII makes no reservation as to pending cases, TEPCO and GE argue that the CSC strips us of jurisdiction over Plaintiffs’ claims.
We find this argument plausible, but ultimately unpersuasive. Although jurisdictional provisions can and often do apply to cases already pending when those provisions go into effect, it is not true that we always apply
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new jurisdictional provisions to pending cases. Rather, we look at the jurisdiction-stripping provision in the context of the statute or treaty at issue, applying normal canons of construction, to determine if the provision should apply to pending cases. Hamdan v. Rumsfeld, 548 U.S. 557, 577 (2006) (“[Not] all jurisdiction-stripping provisions—or even all such provisions that truly lack retroactive effect—must apply to cases pending at the time of their enactment. ‘[N]ormal rules of construction,’ including a contextual reading of the statutory language, may dictate otherwise.” (second alteration in original) (citation omitted)); Lindh v. Murphy, 521 U.S. 320, 326 (1997) (“In determining whether a statute’s terms would produce a retroactive effect, however, and in determining a statute’s temporal reach generally, our normal rules of construction apply.”); see also Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 180 (1982) (“The clear import of treaty language controls unless ‘application of the words of the treaty according to their obvious meaning effects a result inconsistent with the intent or expectations of its signatories.’” (citation omitted)).
Applying normal rules of construction to Article XIII, we do not believe that it strips U.S. courts of jurisdiction over claims arising out of nuclear incidents that occurred prior to the CSC’s entry into force. 6 Two things bring us to this
6 For purposes of this analysis, we will assume that Article XIII is self-executing. See Medellin v. Texas, 552 U.S. 491, 505–06 (2008) (explaining that a treaty “ordinarily ‘depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it,’” but that some treaties “contain stipulations which are self-executing, that is, . . . they have the force and effect of a legislative enactment” (citation omitted)); Letter of Submittal for the Convention on Supplementary Compensation for Nuclear Damage at XV, August 7, 2001, S. Treaty Doc. No. 107-21 (“As with similar jurisdictional provisions in earlier treaties submitted to the Senate for advice and consent to ratification, it is anticipated that the provisions of Article XIII would be applied without the need for further implementing legislation.”). Because we conclude that, in any event, Article XIII does not apply to claims arising out of the FNPP incident, we need not decide this issue.
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conclusion. First, starting with Article XIII’s text, we find it informative that the CSC gives exclusive jurisdiction to “the courts of the Contracting Party within which the nuclear incident occurs.” CSC art. XIII(1) (emphasis added). The use of the present tense suggests that the provision applies to future nuclear incidents and does not include past incidents. One would expect the drafters to have used the past tense had they intended to alter jurisdiction over claims arising out of nuclear incidents that occurred before the CSC’s entry into force. Other paragraphs within Article XIII also use the present tense, similarly indicating that Article XIII refers only to claims arising out of future nuclear incidents. See id. art. XIII(2) (“Where a nuclear incident occurs within the area of the exclusive economic zone of a Contracting Party[,] . . . jurisdiction over actions concerning nuclear damage from that nuclear incident shall, for the purposes of this Convention, lie only with the courts of that Party.” (emphasis added)); id. art. XIII(3) (“Where a nuclear incident does not occur within the territory of any Contracting Party[,] . . . jurisdiction over actions concerning nuclear damage from the nuclear incident shall lie only with the courts of the Installation State.” (emphasis added)). 7
7 TEPCO and GE counter that versions of the CSC in other languages, which are equally authentic, see CSC art. XXVII, use different verb tenses. The Spanish text, for example, uses the phrase “haya ocurrido.” “Haya” is the present subjunctive form of the Spanish verb “haber,” which in English means “to have.” As TEPCO and GE note, the phrase “haya ocurrido” means “has occurred.” In other words, the Spanish text grants jurisdiction to the courts of the country where the nuclear incident “has occurred,” not where it “occurs.” TEPCO and GE suggest that this difference precludes us from giving much weight to the English text’s use of the present tense.
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Second, the CSC’s overall framework also supports our conclusion that Article XIII does not apply to claims arising out of nuclear incidents that precede the CSC’s entry into force because we view the promise of exclusive jurisdiction as a quid pro quo for establishing a compensation fund. To accept TEPCO and GE’s argument that the CSC’s jurisdictional provision applies to the current case, we would have to view Article XIII as a stand-alone provision, independent of the CSC’s remaining provisions, to centralize jurisdiction over nuclear damage claims in a single country. We cannot fairly construe the CSC in this manner. Article XIII is but one component of the compensation scheme created in the CSC. The CSC’s title—The Convention on Supplementary Compensation for Nuclear Damage—suggests what the remainder of the document makes clear: the CSC is, first and foremost, concerned with creating an international backstop for funding claims by victims of nuclear incidents.
We think that TEPCO and GE’s reliance on the Spanish text is misplaced. The Spanish text’s use of the phrase “haya ocurrido”—a subjunctive form that conveys a mood of indeterminancy that has no direct English counterpart—does not necessarily suggest that the CSC’s jurisdictional provision encompasses pre-existing nuclear incidents. Even if the CSC used the past tense and limited jurisdiction to “the courts of the Contracting Party within which the nuclear incident occurred,” that would not answer the question at issue here. In that case, the use of the past tense only shows the temporal relationship between the nuclear accident and the lawsuit, the former obviously preceding the latter. But this wording leaves open the question whether the nuclear accident had to occur after the CSC’s entry into force for the provision to apply. Even if other languages make the answer to that question ambiguous, our second point above compels our conclusion that the CSC applies only to nuclear incidents occurring after the CSC’s entry into force.
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The “Purpose and Application” section reinforces that “[t]he purpose of this Convention is to supplement the system of compensation provided pursuant to” the Vienna and Paris Conventions and national laws such as the Price-Anderson Act. CSC art. II(1). To carry out its goal, the CSC creates what the CSC itself refers to as a “system,” id. art. II(2), or a “worldwide liability regime,” id., Preamble. Nothing in the CSC suggests that one component of that system, such as the jurisdictional provision at issue here, would apply when the entire system does not. The jurisdictional provision is not independent of the compensation scheme, but is part of the mechanism for effectuating that scheme.
Other provisions of the CSC confirm our reading that Article XIII is not an independent agreement to centralize litigation from a nuclear accident in a single country, but a mechanism for administering the supplemental compensation fund. A country whose courts have jurisdiction under Article XIII obtains certain rights and responsibilities. Specifically, “the Contracting party whose courts have jurisdiction shall inform the other Contracting Parties of a nuclear incident as soon as it appears that” domestic funds may be insufficient to compensate victims. Id. art. VI. Once domestic funds are exhausted, “the Contracting Party whose courts have jurisdiction shall request the other Contracting Parties to make available” the supplemental compensation fund, and “the Contracting Party whose courts have jurisdiction” has “exclusive competence to disburse such funds.” Id. art. VII(1); see also id. art. X(1) (“The system of disbursement by which the [supplemental funds] are to be made available and the system of apportionment thereof shall be that of the Contracting Party whose courts have jurisdiction.”). “The Contracting party whose courts have jurisdiction” may also exercise certain rights of recourse under the CSC. Id. art…..” Read the rest-download document here: http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/22/15-56424.pdf
By Adam Broinowski
Local Responses to State–Corporate Suppression and Lack of Public Health Protection
Faced with the post-3.11 reality of government (and corporate) policy that protects economic and security interests over public health and well-being, the majority of the 2 million inhabitants of Fukushima Prefecture are either unconscious of or have been encouraged to accept living with radioactive contamination. People dry their clothes outside, drink local tap water and consume local food, swim in outdoor pools and the ocean, consume and sell their own produce or catches. Financial pressure after 3.11 as well as the persistent danger of social marginalisation has made it more difficult to take precautionary measures (i.e. permanent relocation, dual accommodation, importing food and water) and develop and share counter-narratives to the official message. Nevertheless, some continue to conceal their anxiety beneath a mask of superficial calm.
As Fukushima city resident Shiina Chieko observed, the majority of people seem to have adopted denial as a way to excise the present danger from their consciousness. Her sister-in-law, for example, ignored her son’s ‘continuous nosebleeds’, while her mother had decided that the community must endure by pretending that things were no different from pre-3.11 conditions.75 Unlike the claim that risk is evenly distributed, it is likely that greater risk is borne by those who eat processed foods from family restaurants and convenience stores, as well as infants, children and young women who are disproportionately vulnerable to internal radiation exposures. Most mothers, then, have an added burden to shield their children while maintaining a positive front in their family and community.
Some, such as Yokota Asami (40 years old), a small business owner and mother from Kōriyama (60 km from FDNPS), demonstrated initiative in voluntarily evacuating her family. She decided to return (wearing goggles and a mask, she joked) in September 2011 when her son’s regular and continuous nosebleeds (in 30-minute spells) subsided. The Yokotas found themselves the victims of bullying when they called attention to radiation dangers, and were labelled non-nationals (hikokumin 非国民) who had betrayed reconstruction efforts. Her son was the only one to put up his hand when he was asked along with 300 fellow junior high school students if he objected to eating locally produced school lunches. He also chose not to participate in outdoor exercise classes and to go on respite trips instead. When it came time to take the high school entrance exam, he was told by the school principal that those who took breaks could not pass. He took the exam and failed. When he asked to see his results he found that he had, in fact, enough points to pass (the cut-off was 156 while he received 198 out of 250 points). The Yokotas decided that it was better to be a ‘non-national’ and protect one’s health. Their son moved to live in Sapporo.76
In March 2015, Asami reported that doctors undertook paediatric thyroid operations while denying any correlation (inga kankei 因果関係) with radiation exposures. They also urged their patients to keep their thyroid cancer a secret to enhance their employment or marriage prospects, although it would be difficult to conceal the post-operation scar.77 Yokota also indicated she knew of students having sudden heart attacks and developing leukaemia and other illnesses.78
This seems to be supported by Mr Ōkoshi, a Fukushima city resident, whose two daughters experienced stillbirths after 3.11. While Ōkoshi found that doctors have regularly advised women in the area to abort after 3.11, presumably to avoid miscarriages and defects, they do not discuss direct causes. He also observed regular illnesses experienced by many of his friends, and some sudden deaths. After a friend (62 years old) started saying strange things, he was diagnosed with brain dysfunction. He died quickly. Another friend (53 years old) was advised by a doctor to monitor a polyp in her breast. When she sought second opinions, she discovered she had accumulated an internal dose of 22 mSv and had a rapidly developing liver cancer. She also died quickly.79 There are many more such stories that are being actively ignored by the authorities. As Shiina put it, ‘we’re getting leukaemia and cataracts and we die suddenly. The TEPCO registrar has been inundated with complaints’.80
While radiation contamination is clearly a health and environmental issue, state-corporate methods deployed by executives to protect (transnational) financial, industry and security interests and assets also make it a political issue.81 As things do not change by themselves, rather than turning one’s frustration inward in self-blame, turning to prayer or deceiving oneself into returning to pre-3.11 lifeways in contaminated areas, Shiina states that people, particularly those most affected, must develop political consciousness.
To achieve this ambitious objective is not as complicated as it might sound. Nishiyama Chikako (60 years old), for example, returned to Kawauchi village to run for the local assembly after the mandatory order was lifted in December 2011. She found, as she commented in her blog, a link between TEPCO and the tripling of the Kawauchi budget post-3.11. Subsequently, she reported that her blog was shut down by unknown hackers on several occasions.82
This sort of information and communication control appears to be widespread. After 3.11, the central government hired advertising companies Dentsū and Hakuhōdō (formerly McCann Ericson Hakuhodo) to run a ‘public acceptance’ campaign. Young teams were dispatched nationwide to conduct ‘public opinion guidance’ (yoron yūdō 世論誘導). The teams consisted of casual labour (earning 2,000–4,000 yen per hour) hired under a confidentiality clause (shuhi gimu 守秘義務) to manipulate information (jōhō kōsaku 情報工作) and harass internet users.83
Media professionals have been subjected to similar tactics. The Asahi TV journalist Iwaji Masaki (Hōdō Station), one of the few mainstream journalists covering the Fukushima Daiichi nuclear accident in depth, for example, was intimidated by police for interviewing (December 2012) informal nuclear workers who showed shoddy decontamination practices that entailed contaminated waste disposal rather than removal and the mother of a child with thyroid cancer. Airing the program was delayed until August 2013. Before he could complete his planned segments on the US$1 billion class action for compensation for unusual and serious illnesses filed against TEPCO, General Electric, Hitachi and Tōshiba in 2015 by sailors from the USS Ronald Reagan (which provided assistance quickly after the disaster, and among whose crew 250 were ill and three had died),84 on 29 September 2013, Iwaji was reportedly found dead in his apartment (having suffered carbon monoxide poisoning in a sealed room as he slept). Much speculation followed on social media, including both plausible reasons for suicide and testimonies from friends that knew him well that Iwaji himself stated he would never commit suicide, but the story was conspicuously ignored by major news channels.85
The former mayor of Futaba village Idogawa Katsuichi was harassed on social media for calling attention to illnesses and for the resettlement of pregnant women and children. When Kariya Tetsu characterised Idogawa in his popular manga series (Oishinbo 美味しんぼ), and depicted the manga’s main character as suffering from nosebleeds after visiting Fukushima, Kariya’s editors shut the series down following accusations of ‘spreading rumours’ from some readers, media commentators and high-level politicians. Similarly, Takenouchi Mari, a freelance journalist and mother who evacuated from Fukushima in 2011, received thousands of slanderous messages and threats to her two-year-old son and her property after criticising the co-founder of Fukushima ETHOS on her blog in mid-2012. She too reported that her internet account was suspended and her request for a police investigation ignored. She was counter-sued for harassment and subjected to a criminal investigation and civil law suit.86
Among the activists who have been arrested for anti-nuclear protests, the academic Shimoji Masaki of Hannan University (9 December 2012) was arrested by Osaka Prefectural Police and charged with ‘violating the Railway Operation Act’ for walking through an Osaka station concourse while participating in a demonstration against radioactive waste incineration (17 October 2012). Shimoji had reiterated that residents, due to radioactive incineration (which was due to commence in Osaka in February 2013), would be forced to bear the burden of air, food and water contamination.87
Despite such obstacles to developing a political consciousness as well as the obvious difficulties in permanently resettling large populations, it has been not only evacuees who have had to think about their fundamental life priorities after the Fukushima Daiichi nuclear distaster. Some have adopted real (not only psychological) self-protection mechanisms. The voluntary Fukushima Collective Health Clinic (Fukushima Kyōdō Shinryōjo 福島共同診療所), for example, is founded on three principles: respite (hoyō 保養), treatment (shinryō 診療) and healing (iryō 医療). Co-founder Dr Sugii, advocates a return to the 1 mSv/y limit, and seeks to inform those who for whatever reason cannot move from contaminated areas in Fukushima Prefecture.88 This is modelled on Belrad, the independent health clinic in Belarus run by Alexey Nesterenko, which prioritises knowledge, safety and open information on radiation and its health impacts.
To counteract the misinformation residents were exposed to post-Chernobyl, over time and with limited resources, Belrad and other organisations have disseminated information and organised respite trips for children in affected areas. In 2015, for example, subsidised respite trips were organised for 50,000 children, and results have shown that over two continuous years of respite those who accumulated 25–35 Bq/kg had reduced the amount to 0 Bq/kg. Unlike the flat limit of 100 Bq/kg of Caesium in food in Japan (50 Bq/kg for milk and infant foods, 10 Bq/kg for drinking water), Belrad recommends an internal radiation limit of 10–30 Bq/kg in the body (although it advises below 10 Bq for infants to avoid lesions and heart irregularities).89 It should be noted that these limits do not guarantee safety against the effects of repeating internal radiation exposure from consuming contaminated foods, which is relative to the length of time the radiation remains and its location in the body.
While some communities, such as the town of Aketo in Tanohama, Iwate Prefecture, have struggled to block the siting of nuclear waste storage facilities,90 others are also organising to reduce radio-accumulation in their children through respite trips,91 as well as concentrating on indoor activities, measuring hotspots and decontaminating public areas and pathways, pooling funds for expensive spectrometers to monitor internal exposure and food and water, incorporating dietary radioprotection, as well as finding ways to reduce anxiety.
Many local farmers cannot admit the already near-permanent damage to their land (which may continue for hundreds of years) because it would imply the devaluation of their property and produce as well as threatening their ancestral ties to the land, commitments and future plans. While many are keenly aware of their responsibilities, the push by the Fukushima and central governments to identify and gain access to markets for produce from irradiated areas would make it easier to overlook uncomfortable factors. Some have argued that given the reassurances of safety from the highest authorities, these offical figures should therefore relocate to contaminated areas and consume these products regularly. Despite the fairness of this statement, a more utilitarian logic has prevailed. In the name of reconstruction and revitalisation of Fukushima and the nation, the dilution of Fukushima produce with unirradiated produce to return measurements just under the required limits, radiation spikes in soil and food or the mutation of plants as Caesium replaces potassium (K40), for example, tend to be minimised. In this climate, the distribution and relabelling of Fukushima produce for urban and international markets (i.e. in a black market of cut-price bulk produce picked up by yakuza and other brokers) is likely to continue.
To date, the majority of evacuees have refused to return to (de)contaminated areas. Some claim they are yet to receive accurate information to justify it. Independent specialists such as Hosokawa Kōmei (Citizens’ Commission on Nuclear Energy), who develops models for transition to renewable alternatives, anticipate an increase in evacuee populations as they predict increased resettlement of Fukushima residents over 20–30 years.92 As some evacuees recognise the potential for second or third Fukushimas, they have sought to strengthen their collective identities and rights. Through local organisation and alternative life practices, whether in micro-scale ecovillages and transition towns93 with communal occupancies and squats, parallel currencies and local exchange systems (roughly 70 substantive projects), organic food co-ops, self-sufficient energy systems, local production and recycling, carpools and free kindergartens, such groups are seeking to reconstruct and model core social priorities, focusing on clean food, health and community cooperation rather than the internalised and dreary competition for material accumulation.
Although the accountability of authorities with prior knowledge has yet to be properly investigated, one of the largest groups of collective legal actions to be mounted in Japanese history includes some 20 lawsuits by 10,000 plaintiffs. The Fukushima genpatsu kokuso-dan (Group of Plaintiffs for Criminal Prosecution 福島原発告訴団), formed on 20 April 2012, filed a criminal case (lodged 3 September 2013, Fukushima District Court) against 33 previous and present officers of TEPCO, government officials and medical experts for ‘group irresponsibility’ and the neglect of duty of care, environmental damage and harm to human health. Mutō Ruiko, one of the key plaintiffs, declared the main aim to be symbolic: to publicly record injury, reclaim the victims’ sense of agency and protect the next generation. In short, they were seeking recognition of wrong and harm done rather than primarily financial redress. This moderate aim was undoubtedly tempered by recognition of regulatory capture: those who were cavalier with safety procedures ‘were now in charge of restarts; those responsible for the “safety” campaign were now in charge of the Health Survey; [there has been] no responsibility for the SPEEDI cover-up; and TEPCO is not being held responsible for [faulty] decontamination’.94
The judgement of this case was handed down at the Tokyo District Court on the same day as the announcement of Tokyo’s successful Olympics bid (9 September 2013). The case was dismissed on the grounds that the disaster was beyond predictability (sōteigai 想定外), which made negligence hypothetical.95 A citizens’ panel (Committee for inquest of Prosecution) overturned the dismissal and renewed the claim against three TEPCO executives on 18 December 2013. They demanded, alongside a ruling of negligence against three former TEPCO executives, the inclusion of physical, economic, social and psychological harms: illness, paediatric underdevelopment (radiation exposures, excessive isolation indoors), financial losses (unemployment, loss in property value, rental costs of two homes, relocation, travel, etc.), family and community division, ijime (bullying いじめ) and stress. Many plaintiffs also claimed that their disrupted reliance upon nature,96 as inviolable and precious,97 should be recognised as harm. This too was dismissed and again a citizen’s panel found against the three TEPCO executives.98 In May 2015, 10 groups of plaintiffs formed a network named Hidanren (被弾連, Genpatsu Jiko Higaisha Dantai Renrakukai) comprising 20,000 people. The Fukushima kokuso-dan again made a claim to another citizens’ panel, which found in July 2015 in favour of indicting the three TEPCO executives for trial.99 In addition, a civil case filed in June 2015 by 4,000 plaintiffs from Iwaki seeking to prove negligence and not just harm sought to use previously withheld evidence to show fair warning of a 3.11-type scenario was given. This case focused the court on the operator’s calculation of risk probability of a tsunami of that size and, rather than aiming at financial compensation, it sought to deter nuclear operators from future negligent practices if ruled in favour. In anticipation of out-of-court settlements, the Japanese Government increased the budget for compensation payments to 7 trillion yen (US$56 billion).
By Adam Broinowski
Official Medicine: The (Il)logic of Radiation Dosimetry
On what basis have these policies on radiation from Fukushima Daiichi been made? Instead of containing contamination, the authorities have mounted a concerted campaign to convince the public that it is safe to live with radiation in areas that should be considered uninhabitable and unusable according to internationally accepted standards. To do so, they have concealed from public knowledge the material conditions of radiation contamination so as to facilitate the return of the evacuee population to ‘normalcy’, or life as it was before 3.11. This position has been further supported by the International Atomic Energy Agency (IAEA), which stated annual doses of up to 20 mSv/y are safe for the total population including women and children.43 The World Health Organisation (WHO) and United Nations Scientific Commission on the Effects of Atomic Radiation (UNSCEAR) also asserted that there were no ‘immediate’ radiation related illnesses or deaths (genpatsu kanren shi 原発関連死) and declared the major health impact to be psychological.
While the central and prefectural governments have repeatedly reassured the public since the beginning of the disaster that there is no immediate health risk, in May 2011 access to official statistics for cancer-related illnesses (including leukaemia) in Fukushima and southern Miyagi prefectures was shut down. On 6 December 2013, the Special Secrets Protection Law (Tokutei Himitsu Hogo Hō 特定秘密保護法) aimed at restricting government employees and experts from giving journalists access to information deemed sensitive to national security was passed (effective December 2014). Passed at the same time was the Cancer Registration Law (Gan Tōroku Hō 癌登録法), which made it illegal to share medical data or information on radiation-related issues including evaluation of medical data obtained through screenings, and denied public access to certain medical records, with violations punishable with a 2 million yen fine or 5–10 years’ imprisonment. In January 2014, the IAEA, UNSCEAR and Fukushima Prefecture and Fukushima Medical University (FMU) signed a confidentiality agreement to control medical data on radiation. All medical personnel (hospitals) must submit data (mortality, morbidity, general illnesses from radiation exposures) to a central repository run by the FMU and IAEA.44 It is likely this data has been collected in the large Fukushima Centre for Environmental Creation, which opened in Minami-Sōma in late 2015 to communicate ‘accurate information on radiation to the public and dispel anxiety’.
This official position contrasts with the results of the first round of the Fukushima Health Management Survey (October 2011 – April 2015) of 370,000 young people (under 18 at the time of the disaster) in Fukushima prefecture since 3.11, as mandated in the Children and Disaster Victims Support Act (June 2012).45 The survey report admitted that paediatric thyroid cancers were ‘several tens of times larger’ (suitei sareru yūbyōsū ni kurabete sūjūbai no ōdā de ōi 推定される有病数に比べて数十倍のオーダーで多い) than the amount estimated.46 By 30 September 2015, as part of the second-round screening (April 2014–March 2016) to be conducted once every two years until the age of 20 and once every five years after 20, there were 15 additional confirmed thyroid cancers coming to a total of 152 malignant or suspected paediatric thyroid cancer cases with 115 surgically confirmed and 37 awaiting surgical confirmation. Almost all have been papillary thyroid cancer with only three as poorly differentiated thyroid cancer (these are no less dangerous). By June 2016, this had increased to 173 confirmed (131) or suspected (42) paediatric thyroid cancer cases.47
The National Cancer Research Center also estimated an increase of childhood thyroid cancer by 61 times, from the 2010 national average of 1–3 per million to 1 in 3,000 children. Other estimates of exposure to radiation, obtained from direct thyroid measurements in Namie town in April 2011, although discontinued under government pressure, also returned much higher results than official estimates (i.e. 80 per cent positive, 1 at 89 mSv, 5 over 50 mSv, 10 at 10mSv or under).48 In April 2014, Dr Tsuda Toshihide, an epidemiologist at Okayama University, declared this a ‘thyroid cancer epidemic’ (kōjōsen densenbyō 甲状腺伝染病), and predicted multiple illnesses from long-term internal radiation below 100 mSv/y and advocated for a program of outbreak (emergency or rapid) epidemiology in and outside Fukushima.49 Similarly, a Tokyo-based physician, Dr Mita Shigeru, circulated a public statement notifying his colleagues of his intention to relocate his practice to Okayama due to overwhelming evidence of unusual symptoms in his patients (roughly 2,000). Given that soil in Tokyo post-Fukushima returned between 1,000 and 4,000 Bq/kg, as compared to an average of 500 Bq/kg (Cs 137 only) in Kiev soil, Mita pointed to a correlation between these symptoms and the significant radiation contamination in Tōhoku and metropolitan Tokyo.50
While results from the Fukushima Health Survey demonstrate flaws in the official dosimetry model and public safety campaign, the survey itself also has clear limitations. It is limited to subjects in a specific age bracket in one prefecture and one non-fatal illness (thyroid cancer, which can be treated with surgery but has lifelong side effects) from the ingestion of one radionuclide (Iodine 131) with a relatively short half-life (eight days) that comprised only 9.1 per cent of the total releases. Its dosimetry is based on the National Institute of Radiological Sciences (NIRS) model,51 which is for external exposure only, does not account for exposures in the initial days of the disaster and uses Japanese Government data that has been criticised for underestimating releases and exposures.52 Further, the survey ignores the damage from the bulk of the total inventory including longer-lived radionuclides (such as Plutonium 239, Caesium 137, Strontium 90, Americium 241, among others), some of which are more difficult to measure on ordinary and less sensitive Geiger counters and which have been distributed and continue to circulate across a wide area. It also ignores other organ diseases, unusual chronic illnesses and premature births and stillbirths, voluntary terminations and birth deformities occurring in and beyond Fukushima prefecture.
In addition to the control of relevant data, the government has used other methods to encourage residents to stay in radiation-contaminated areas. In May 2011, Dr Yamashita Shunichi, then co-director of Fukushima Medical University and the Fukushima Health Management Survey and a specialist from Nagasaki on radiation illness in Chernobyl, declared there was a 1 in 1 million chance of children getting any kind of cancer from radiation and there would be negligible health damage from radiation below 100 microSv/h, and prescribed smiling as an aid to living with radiation to a public audience in Fukushima.53
Dr Yamashita is only one among a host of politicians, bureaucrats, experts and advertising and media consultants who support the post-3.11 safety mantra of anshin (secure 安心), anzen (safe 安全), fukkō (recovery 復興). Through public meetings, media channels, education manuals and workshops,54 local citizens in Fukushima Prefecture were inundated with optimistic and reassuring messages, also known as ‘risk communication discourse’, and central and prefectural government-sponsored ‘health seminars’ encouraging a ‘practical radiation protection culture’ in which they have been urged to take responsibility (jiko sekinin 自己責任) for their own health (e.g. wearing glass badges, self-monitoring, avoiding hotspots), form bonds of solidarity (kizuna 絆) with their community and participate in the great reconstruction (fukkatsu 復活) for the revitalisation of a resilient nation (kyōjinka kokka 強靭化国家) as a whole. To counteract baseless rumours (ryūgen higo 流言蜚語) and the negative impact of gossip (fūhyō higai 風評被害) of radiation in contaminated Fukushima produce, citizens in and beyond Fukushima Prefecture, and even non-citizens, have been encouraged to buy and consume Fukushima produce as an expression of moral and economic support (through slogans such as ‘Ganbare Fukushima!’ がんばれ福島!). At the same time, to reduce ‘radiophobia’ and anxiety, while focusing on the psychological impact from stress, health risks from radiation exposures have been trivialised and/or normalised for the general public.55
This approach is backed up by international nuclear-related agencies. As stipulated on 28 May 1959 in the ‘WHA12-40’ agreement, the WHO is mandated to report all data on health effects from radiation exposures to the IAEA, which controls publication. On no other medical health issue is the WHO required to defer publication responsibilities to another institution. Scientific expertise at the IAEA primarily lies in nuclear physics (radiology and dosimetry) as opposed to epidemiology and medical expertise on radiation effects to living tissue. The IAEA and its related UN bodies are informed by the International Commission of Radiation Protection (ICRP) recommendations on radiation dose assessments derived from the Atomic Bomb Casualty Commission/Radiation Exposure Research Foundation (ABCC/RERF) lifetime studies of hibakusha (被爆者) in Hiroshima and Nagasaki. This dosimetry is primarily based on an average exposure of a 20–30-year-old ‘reference man’ (originally modelled on a US Army soldier) mainly to short-term one-off acute gamma radiation exposure. While it recommends caution, the ICRP continues to maintain that anything below 100 mSv/y is a ‘low dose’ and that the risk of ‘stochastic effects’ are yet to be scientifically proven beyond doubt. Within this framework, it would seem reasonable to raise the level from 1 to 20 mSv/y.
The ABCC/RERF studies ignored, however, biological contingencies of sex, age, constitution, other health conditions and the variegated effects (including complicating chemical and metabolic dynamics) from both internal and external exposures to different radionuclides of all types (‘low level’ internal radiation is at least 20 times greater). After Chernobyl, the WHO and IAEA used the ICRP dose model to conclude that there were up to 56 deaths of ‘liquidators’ (clean-up workers) from acute radiation sickness and 4,000 additional cancers;56 and that environmental effects such as lifestyle (i.e. parental alcoholism, smoking) and ‘radiophobia’ (stress and depression) contributed to excess illnesses in 80 per cent of adult cases. It also concluded that no harm would be received by the 2 million farmers and more than 500,000 children who continued living in radioactive areas in Belarus.
Nevertheless, it is no longer possible to ignore a significant body of research, including 20 years of scientific studies compiled in Belarus and Ukraine that show serious depopulation, ongoing illnesses and state decline.57 These studies have found genetic effects within a radius of 250–300 km from Chernobyl, while children’s health in Belarus has declined from a situation where 80 per cent of the child population was healthy prior to the Chernobyl disaster to a situation post-Chernobyl where only 20 per cent are healthy.58 In 1995, Professor Nechaev from the Ministry of Health and Medical Industry (Moscow) stated that 2.5 million people were irradiated from Chernobyl in the Russian Federation, the Ukrainian Prime Minister Marchuk stated that 3.1 million had been exposed to Chernobyl radiation and Professor Okeanov from Belarus observed a spike in leukaemia and cancers among liquidators in Gomel relative to duration of exposure.59 By 2001, of 800,000 healthy Russian and Ukrainian liquidators (with an average age of 33 years) sent to decontaminate, isolate and stabilise the reactor, 10 per cent had died and 30 per cent were disabled. By 2009, 120,000 liquidators had died, and an epidemic of chronic illness and genetic and perigenetic damage in nuclear workers’ descendants appeared (this is predicted to increase over subsequent generations).60 The full extent of the damage will not be understood until the fifth generation of descendants. By the mid-2000s, 985,000 additional deaths between 1986 and 2004 across Europe were estimated as a direct result from radiation exposure from Chernobyl.61
Given this background of regulatory capture and radical discrepancies in methods and estimates prior to the Fukushima disaster, it is less surprising that there may be a process of regulatory capture and cover up underway in response to Fukushima Daiichi. In December 2011, a Cabinet Office Working Group chaired by RERF chairman Nagataki Shigenobu consisted of 18 Japanese ICRP members (including Niwa Otsura and Yamashita Shunichi). The experts invited Mr Jacques Lochard to provide external expertise. Lochard is an economist, ICRP member, Director of the Center of Studies on the Evaluation of Protection in the Nuclear Field (CEPN) (funded by Electricité de France EDF), and co-director of the CORE-ETHOS Programme in Chernobyl (1996–1998).
The CORE (Cooperation and Rehabilitation in the Belarusian territories contaminated by Chernobyl) Programme organised a takeover of radioprotection health centres in Ukraine and Belarus, and delayed a health audit beyond five years while it produced the ETHOS report outlining a ‘sustainable system of post-radiological accident management for France and the European Union’.62 While local scientists (led by Yuri Bandazhevsky and Vassili Nesterenko) recommended whole body counts (WBC) for each child (in which 50,000 children would be tested with spectrometers), food measurement, dietary radioprotection (prophylaxis through adsorbents) and resettlement of those exposed to radiation over 1 mSv/y,63 the ETHOS manual concluded that in a similar radiological event in western Europe, resettlement would be restricted to those exposed to more than 100 mSv/y. By factoring in ‘social, economic and political’ costs, ETHOS proposed ways for populations to live with radiation, and identified psychosomatic illnesses derived from ‘stress’ based on unfounded fears (i.e. ‘radiophobia’) of radiation as the greatest health risk. After a prolonged delay, in 1996 the IAEA and WHO finally settled on 5 mSv/y as the mandatory evacuation limit in a compromise between the Soviet (1 mSv/y) and western European (100 mSv/y) recommendations after Chernobyl.64 These agencies targeted ‘alarmist’ reports (including social protests) as encouraging ‘radiophobia’, stressing the psychological impacts of radiological events.
In post-3.11 Japan, the Japanese Cabinet Office Working Group65 reinforced the IAEA dosimetry regime by reiterating that cancers only emerge four to five years after exposure, that increases in cancers within this period could not be attributable to the accident,66 and that illnesses in people exposed to radiation below 100 mSv/y could be concealed by other carcinogenic effects and other factors (rendering them statistically negligible), and thus could not be proven to be radiation related. In fact, in July 2014, Nagataki Shigenobu declared that it would be ‘disastrous to conclude [from the survey findings] an increase in thyroid cancer’ was due to radiation exposure.67 Consequently, privileging a government study of the thyroid glands of 1,080 children in late March 2011 (a very small sample), Nagataki claimed that almost none had exceeded 50 mSv for internal exposure and that 99.8 per cent of the population in Fukushima Prefecture could be estimated to have received an external dose below 5 mSv. Nagataki dismissed the need for further medical screenings, regular check-ups or internal radiation tests (whole body counter, urine and blood tests) at hospitals and clinics in Fukushima Prefecture or elsewhere.
Instead, the government appears to have adopted the ETHOS model: ‘improving’ community life in radiation-contaminated areas through local education and support groups; encouraging proactive self-responsibility (i.e. self-monitoring with government monitors) for children and parents (including pregnant women); stamping out ‘stigma’ attached to ‘Fukushima’ residents, the area and its produce while stigmatising ‘radiophobia’; and encouraging evacuees’ return after and even prior to ‘decontamination’.68
By September 2015, an officially estimated 3,407 people (up from 3,194 the previous year) had died from ‘effects related to the great east Japan earthquake’ (Daishinsai kanren shi 大震災関連死).69 In March 2015, about 1,870 deaths of those who had evacuated due to the overall disaster were deemed to have been from ill-health and suicide. By March 2016, this had increased to 2,208 deaths, while 1,386 deaths were estimated to have been caused by effects related specifically to the nuclear disaster (genpatsu kanren shi).70 Further, a statistically significant 15 per cent drop in live births in Fukushima Prefecture in December 2011, and a 20 per cent spike in infant mortality were found to have been caused mainly by internal radiation from the consumption of contaminated food.71 Nor do statistics on abortions seem to have been factored into official accounts. As the statistics are so temporally specific, anxiety (disruption, evacuation) is unlikely to have been the major factor as the spikes would be more prolonged. It has also been extrapolated from the conservative UNSCEAR 2013 estimate of a 48,000 person Sv collective dose, that another 5,000 are expected to die from future cancers in Japan (and larger numbers to become ill).72 Using the Tondel model, however, the European Commission on Radiation Risk (ECRR), in contrast to the ICRP dose model, which estimates 2,838 excess cancers within 100 km radius over 50 years excluding internal radiation, estimated that 103,000 excess cancers within 100 km would be diagnosed within 10 years and 200,000 in the next 50 years.73
As with informal and formal nuclear workers, if these deaths were officially recognised as being tied to radiation from Fukushima Daiichi, then the family of the deceased as main income earner would be eligible for a 5 million yen ‘consolation’ payment (half for others). Further, it would also imply the need for stricter radiological protection standards and a greater number of permanent evacuations and official health treatment program that would effectively limit the so-called ‘benefits’ associated with nuclear power generation.74 In short, it is not surprising that the overwhelming emphasis in scientific studies and public reports has been placed on psychological impacts rather than disease and deaths (particularly but not limited to nuclear workers and children) and the argumentation over the significance of thyroid cancers. The same pattern occurred after Chernobyl and Three Mile Island.
By Adam Broinowski
Conditions for Residents of Post-3.11 Radiation-Affected Areas
For roughly 30 years, the exclusion zone around Chernobyl has been set at 30 kilometres. Between 1 and 5 mSv/y is the assisted evacuation level and mandatory evacuation is 5 mSv/y and above. Unlike the approach adopted for Chernobyl, which was to achieve containment (a sarcophagus was built in eight months) and permanent resettlement of 350,000 people, the government and TEPCO have adopted a ‘dilution’ approach—to widely disperse and redistribute (‘share’) radioactive materials and waste and decontaminate residential areas. To date, this has permitted the permanent release through venting, dumping and incinerating of radioactive materials into the air, land, water and sea, and circulation in the food chain and recycled materials on a daily basis since March 2011.
Over the first few days at Fukushima Daiichi nuclear power station, severity (International Nuclear Event Scale) levels were steadily raised from level 3 to level 5 to level 7, and the mandatory evacuation zone was gradually expanded from 10 to 30 kilometres. On 16 March 2011, readings in Aizu-Wakamatsu Middle School (100 kilometres from FDNPS) in Fukushima Prefecture returned 2.57 microSv/h (microsieverts per hour),27 and Kōriyama (60 kilometres) recordings returned 3.6–3.9 microSv/h. Inside people’s homes in Kōriyama, levels were between 1.5 and 2.0 microSv/h and 8.2 microSv/h in the downpipes.28 This data was made public only three months later. On 6 April, schools in Fukushima Prefecture were reopened. As the boundaries, legal limits and information were gradually altered, populations were urged to return to work. At the same time the legal safety level for mandatory evacuation for the public (radiation safety level 1972) was raised from 1 to 20 mSv/y,29 based on a cumulative 100 mSv dose averaged over five years, suddenly shifting the parameters for ‘low-level’ radiation and designating the general public with the level previously designated to nuclear workers.
The US Government advised a mandatory evacuation zone of 50 miles (80 kilometres). Several nations’ embassies in Tokyo evacuated their staff. Of roughly 2 million in Fukushima Prefecture, about 80,000 people from 11 municipalities were ordered to evacuate while another 80,000 evacuated voluntarily. By late 2015, about 118,862 remained evacuated.30 Sixty thousand of these people live in temporary housing and many lacked basic needs. There were many evacuees who sought public housing who have been turned away.31 There are additional evacuees affected by the earthquakes and tsunami who come from other prefectures (including parts of Miyagi and Ibaraki), some of whom were also affected by radiation exposure.
The situation in many villages within contaminated areas signifies how government policies have further exposed a wide range of people—farmers, shopkeepers, taxi drivers, factory workers, mothers (as reproductive workers), school students, local public servants—to conditions informal workers have long had to endure. In several cases (i.e. Iitate, Minami Soma, Namie), the notification of residents of radiation danger was delayed and potassium iodide pills were not distributed. Similarly, data on weather patterns and distribution gathered by the SPEEDI monitoring system32 was suppressed. These populations were not adequately informed of what the dose readings meant in terms of health risk. When people did seek measurement and treatment for their likely exposures, hospitals and other institutions with the requisite measuring technologies refused to measure them, as it was deemed ‘there was no reason for internal contamination and so there was no reason to measure’.33 These people unwittingly became hibakusha (被曝者), broadly defined as victims of radiation exposure.
Even though the Fukushima Daiichi nuclear disaster has caused near-permanent pollution, the conflation of the radiation problem with tsunami and earthquake destruction to be managed as a single large-scale ‘clean-up’, reconstruction and revitalisation operation as instituted by the National Resilience Council 2013 has occluded the materiality of radiation. Informal workers on ‘decontamination projects’ washed down public buildings and homes and scraped up and replaced soil and sludge contaminated at levels found for example at between 84,000–446,000 Becquerels per kilogram (Bq/kg) in Kōriyama (60 km from Fukushima Daiichi).34 They also collected waste that included radioactive debris, uniforms and tools. The organic waste is stored on government-purchased land in black industrial bags piled in large walls and mounds to create a sort of buffer zone on town margins and in areas determined as long-term irradiated zones.35 Other contaminated waste is burned in newly constructed incinerators in towns nearest the plant (such as Futaba, Okuma, Naraha, Tamura, Tomioka, with more planned) in addition to the incineration already underway in major cities since 3.11, even while evacuees are being compelled to return to some of them (Tamura, Kawauchi, Naraha) where evacuation orders have been lifted. In addition, in June 2016 the Ministry of the Environment approved radioactive soil of up to 8,000 Bq/kg to be reused in national public works. Although stipulated to be used for roads and barriers (such as sea walls) under a layer of non-contaminated materials, there is concern that these will corrode over time leading to recirculation in the environment.
As compensation schemes are contingent upon where evacuees come from (whether these are areas where there are plans to lift evacuation orders, areas pending decontamination in the shorter term, or those deemed difficult to return to), those mandatory evacuees without property have received on average 100,000 yen per month while voluntary evacuees have received 60,000 yen per month, even if radiation levels in their residential areas were high. The return to towns that received over 50 mSv/y (Futaba, Namie, Okuma) remains unlikely for decades, but if evacuees do return to other villages, they risk lifetime re-exposures of up to 20 mSv/y. In late 2015, Iitate village, for example, was divided into Areas 1 and 2, which are being prepared for repopulation (54,000 people), and Area 3, which so far remains out of bounds. Although the topsoil contaminated with Caesium was stripped and replaced (i.e. returning 0.6 microSv/h) and its houses and roads were washed down, 96 per cent of Iitate remained at 1 microSv/h. As Iitate is 75 per cent forest, which trapped a large stock of contamination, the land re-concentrates through radiation circulation (hence, quickly returned to 2.6 microSv/h).36 If the majority in Iitate, who are primarily agricultural workers, can no longer harvest vegetables, rice, wild mushrooms and vegetables (sansai 山菜) or burn wood for heat, and their houses are re-irradiated, then only the semi-autonomous elderly are likely to return. By August 2015, less than 10 per cent of roughly 14,000 eligible had applied for temporary return.37
So-called ‘decontamination’ and ‘remediation’ has been deployed to justify redefining evacuation boundaries and lifting evacuation orders so as to cut compensation payments. Following the 37th National Emergency Response Headquarters meeting held at the Prime Minister’s Office in June 2015 in which the Prime Minister decreed that ‘evacuees must return to their hometowns as quickly as possible and start new lives’,38 in late August 2015 evacuees were told if they chose to return home they would receive a one-off payment of 100,000 yen per household. If they did not, once evacuation orders had been lifted, ‘free rent’ (yachin hojo 家賃補助) for voluntary evacuees would be cut by March 2017 at the very latest.39 Further, the government announced its intention to partially lift the restriction on the ‘difficult-to-return zone’ by 2022 so as to counteract the negative image of the area and its produce.40 Without alternative income, and with a significant housing shortage due to the restriction of new public housing, many have been and will be forced to return to contaminated areas, to endure radiation exposure without compensation. If only the elderly return, there will be few prospects for young families in such towns where there is little local business and infrastructure, and public facilities and housing are in disrepair.
In Naraha, between May and August 2015, ambient readings in populated areas officially determined as ‘low or moderate’ returned 0.3–0.7 microSv/h and soil samples returned 26,480–52,500 Bq/kg of Caesium 137 and 134 combined (and 18,700 Bq/kg in the town’s water reservoir).41 While the majority of former residents are more likely to either pull down their houses and sell the land or maintain their homes as vacationers, there is additional private and state pressure to industrialise these former idylls as ‘reconstruction hubs’. As part of the ‘Innovation Coast’ plan, for example, 1,000 irregular workers have resided on the town’s outskirts as they built a giant research facility (estimated cost: 85 billion yen) to train hundreds of workers in reactor simulations and use of specialised robots. As industry colonises and transforms such towns, the pressing concern of unmitigated radiation levels in soil, forests and water, whether from distribution or recirculation, remains due to the long-lived decay and harmful effects of these radionuclides.
Similarly, in the effort to stimulate business, highways (Route 6) and train lines (Jōban line) passing directly through the (former) evacuation zone were reopened in 2015, although traffic must still travel with closed windows at the time of writing. Regular users of these corridors such as railway and transport workers and irregular nuclear workers accumulate higher doses from regular exposure while radioactive particles attached to vehicles are dispersed beyond contaminated areas. Clearly, a containment and permanent resettlement approach has been deemed untenable in the belief it would disrupt economic productivity levels. As one high school student insightfully observed, ‘Sensei … If they [really wanted to turn] Fukushima into an evacuation zone they’d have to block the Route 4 highway, Tōhoku expressway and Shinkansen’.42 Nevertheless, in lieu of overall reconstruction costs less conservatively estimated at half a trillion dollars, it may have been cheaper in the longer term to adopt permanent resettlement, education, health treatment and work creation strategies.