Yokosuka Climate Case

On May 27, 2019, 45 Japanese citizens filed suit to block the construction of a new coal-fired power plant. The plaintiffs filed a legal challenge against the Japanese Minister of Economy, Trade and Industry, seeking cancelation of the notice of finalization of the environmental impact assessment for the construction of two new coal-fired generating units - totaling 1,300 MW - at the Yokosuka power plant. The plaintiffs allege that JERA, the plant operator, improperly exploited a streamlined assessment process for replacements or upgrades that the Japanese Government created after the Fukushima Fukushima Daiichi nuclear accident. On January 27, 2023, the Tokyo District Court delivered a judgment that dealt with the request to cancel the Notice of Confirmation issued by the Minister of Economy, Trade and Industry, who confirmed the Environmental Impact Assessment of JERA under Article 46 (17) (ii) of the Electricity Business Act. Firstly, the judgment discussed if the Notice of Confirmation was considered disposition against which an administrative complaint could be made. On this point, the Court determined that the Notice of Confirmation was considered disposition within the meaning of Article 3 (2) of the Administrative Case Litigation Act since the recipient of the Notice was an essential requirement for starting the operation of a power plant and granted legal status to JERA. Secondly, the judgment discussed if the Plaintiffs had standing and to what extent claims could be made. The Court stated that those persons who lived close to the coal-fired power plant and were likely to directly suffer significant damage from air pollution had legal interests to request the cancelation of the Notice of Confirmation. On the other hand, the Court stated that the damage from climate change could not be considered an individual interest to be protected by law. Thus, the Court recognized the standing of the Plaintiffs who lived within 20 km of the coal-fired power plant related to air pollution but did not recognize the standing and claims related to climate change and CO2 emissions. Lastly, the judgment discussed if the Notice of Confirmation was legal. The Court stated that the consideration of the alternative fuels was not obligatory and the use of the simplified procedure of the assessment was rational when the nature of the power plant (in this case, replacement) fell under the scope the rationalized guidelines. Therefore, the use of the simplified procedure in accordance with the rationalized guidelines was not against the Power Plant Assessment Ordinance and there were no procedural defects in the assessment of the impact of air pollution. Moreover, the Court stated that there were no reasons to predict that the level of the environmental impact would increase by the construction. The Court concluded that the Notice of Confirmation was legal as its content was adequate and there was no deviation nor abuse of power by the Minister. On the same day, the Citizens’ Committee released a statement saying that the judgment was unjust, for the Court rejected the standing of the plaintiffs in relation to climate change and determined that the evaluation of PM 2.5 and consideration of the use of alternative fuels were not necessary. On February 9, 2023, the citizens submitted a statement of appeal, and the following arguments are made in the appeal procedure. Firstly, the citizens claim that the judgment of the District Court did not recognize the danger of climate change as fact, although the significant damage caused by climate change such as an increase in the number of extremely hot days and also an increase in the precipitation have been observed in their residential area. They particularly emphasized the destruction of marine ecosystems due to the impact of climate change and the fact that fishermen are being deprived of their means of livelihood. Secondly, the citizens contest their lack of standing with regard to GHG emissions. The citizens argue that their health and living environment are exposed to risks and the interests to not suffer damage from GHG emissions should not be absorbed into public interests which do not assign standing but should be recognized as individual concrete interests. Thirdly, the citizens argue that the lack of consideration of the use of alternative fuels is a serious procedural flaw in the Notice of Confirmation. They also contest the District Court’s inadequately wide recognition of governmental discretion on issuing the alleged notice. Fourthly, the citizens argue that there have been procedural flaws during the EIA, including the lack of consideration of carbon dioxide emissions at the planning phase. They also contend that the conducted assessment ignores the perspective of environmental conservation through transparency of the decision-making process and effective public participation, which is a fundamental requirement of EIA, and that the assessment did not examine the consistency with the Paris Agreement. Finally, the citizens argue that the use of the simplified EIA procedure is illegal since the present plan does not meet the criteria, such as the reduction of environmental impact as a result of the replacement of the power plants. On February 22, 2024, the Tokyo High Court dismissed all of the citizensʼ (appellants) appeals. Firstly, regarding the non-recognition of the threat of climate change in the first instance judgment, the court recognized the danger of climate change as fact, citing both the IPCC Fifth Assessment Report and IPCC Special Report on Impacts of Global Warming of 1.5°. The court stated that "Indeed, it is a serious and grave situation that climate change is causing weather disasters and changes in ocean conditions in various parts of the world, including Japan, and causing various damages to people.” On this point, the court acknowledged the effects of climate change on marine ecosystems, in response to the appellants' claims. Secondly, concerning the standing, the court stated that the Basic Matters relating to the Guidelines to be Established by the Competent Minister in Accordance with the Provisions of the EIA Act, as well as Ministerial Order of EIA, clearly treats GHG differently from other evaluation items for which studies, forecasts, and assessments should be conducted to ascertain the effects on human health and the living environment, with the aim of ensuring the protection of human health and the preservation of the living environment. Consequently, the court concluded that the regulations governing CO2 did not include the intent to protect the individual interests of each person. Furthermore, it stated that "the interest to not suffer damage caused by global warming due to CO2 cannot be legally protected as concrete individual interests that are not absorbed by general public interests” because the alleged power plant is not considered to particularly increase the threat of damage in relation to a specific range of individuals. Thirdly, regarding the non-consideration of the alternatives of fuel sources, the court denied illegality because the based regulations of the conducted EIA "only require consideration of multiple alternatives for the structure or layout of the power generation facilities, the location where the project will be implemented, or the scale of the project.” Fourthly, regarding the fact that carbon dioxide has not been selected as a consideration factor at the planning phase, the court stated that “The annual emissions of CO2 from the operation of the new power plant (approximately 7.26 million tCO2/year) are only about 1/5000th of the global CO2 emissions in 2015 and about 0.64% of Japan's total CO2 emissions in 2006. The CO2 emitted by the thermal power plant itself does not directly affect the environment. It causes climate change on a global scale in combination with emissions from other sources, to materialize natural disasters resulting various types of damage. Therefore, it is difficult to conclude that the CO2 emissions from the new power plant alone will significantly increase the scale or frequency of damage caused by disasters due to global warming." Additionally, the court noted that the alleged operator plans to adopt USE power generation equipment to reduce CO2 emissions. Further, the EIA Guideline for power plants states that CO2 is not an item that is expected to have a significant environmental impact in a typical project. Consequently, the court concluded that it was not illegal not to select CO2 as a consideration factor in the planning stage. Fifthly, regarding the application of the Improvement and Replacement Rationalization Guideline, the applied "Simplified Replacement Assessment" in this case is principally applicable in the case of replacement when the environmental impact has been reduced. In reality, however, the power plant before the replacement in this case had hardly been in operation since 2000. Thus, in 2015, when the construction of the two power plants was planned, the local air quality had improved considerably and stably. However, the court held that, even under these circumstances, a reduction in the actual environmental impact compared to recent operations was not a necessary requirement for the application of the Simplified Replacement Assessment. Therefore, there was nothing illegal in applying this type of Assessment on the grounds that emissions were lower than in 1970, when the plant was operating at maximum capacity. On April 30, 2024, the plaintiffs appealed to the Supreme Court of Japan, claiming violation of human rights, due process, and procedural defect of environmental impact assessment. On October 23, 2024, the Supreme Court rejected the request for a final appeal, and the judgment by the Tokyo High Court was upheld. The Supreme Court stated that it did not find grounds for a final appeal under Article 312 of the Code of Civil Procedure but no specific reasons were given.