The Compensation Scheme for the Nuclear Power Plant Disaster in Fukushima
- Yuki Ashina
- Satsuki Takahashi
- Nobuyo Fujinaga
- Takao Suami
The accident at the Fukushima Daiichi Nuclear Power Plant, triggered by the Great East Japan Earthquake on March 11, 2011, is the most recent large-scale nuclear accident in the world. The main goal of our chapter is to make a contribution to global conversation regarding possibilities and limits of damage compensation when a nuclear accident occurs through providing detailed case studies based on invaluable lessons that we have learned from the Fukushima nuclear accident. We also hope that our chapter on the Fukushima accident will invite a broader discussion on our collective future relationship with nuclear power. With the goals in mind, our chapter presents a collection of brief reports, which are organized as Section I through Section VII.
Section I gives a brief overview of questions on disaster compensation. Section II provides a general outline of the current Japanese nuclear damage compensation scheme and its limitations. Section III reports on the factual basis for compensation; that is, actual damage that the victims of the Fukushima accident have sustained. We summarize the results of interviews and surveys conducted on four common types of victims: mandatory evacuees, voluntary evacuees, farmers, and fishers. Section IV focuses on Fukushima's fishing industry and discusses meanings of damage and reconstruction. Section V provides a general outline of contentious issues that have surfaced in Japan while nuclear accident damage compensation payments proceed. This section draws attention to limitations to relief for victims through compensation as well as difficulties involved in the design of a compensation scheme. Section VI discusses lawsuits that have been filed seeking an injunction on the resumption of operation at various nuclear power plants in Japan. Although these lawsuits have no direct relationship with the issue of compensation, it provides a broader context to the state of nuclear energy in Japan. Lastly, Section VII concludes our chapter by laying out the current conditions of the Fukushima nuclear accident and posing questions for the creation of future regulations and practices.
Section I — Why Discuss Compensation?
Another nuclear-related accident is bound to occur in the future; we just do not know when and where. It is nevertheless a certainty. One thing we should do in preparation for this unavoidable future crisis is to pool our knowledge together. Sharing, engaging in discussion, and globally disseminating information about past accidents is particularly meaningful. The goal of this chapter prepared by the “Fukushima Team” of the Meridian 180 Global Working Group on Nuclear Energy is to share the information with people within and outside Japan, regarding what we have observed and what we have learned through our respective activities related to this most recent nuclear power plant accident at the Fukushima Daiichi Nuclear Power Plant. More specifically, this introductory section seeks to outline the current state of the nuclear power plant accident aftermath and draw attention to issues from the perspective of damage compensation.
There are several reasons why we chose to focus on damage compensation for this project. Due to the safety myth surrounding nuclear power plants, the costs of nuclear energy are often calculated based only on the costs of their construction and maintenance. If we assumed that nuclear power plant accidents inevitably occur, however, it would be necessary to add in accident-related costs as well. Moreover, when it comes to post-accident costs, we tend to focus our attention on expenses related to damage compensation. However, we must also consider the existence of damage that cannot be fully taken into account through existing damage compensation schemes. For example, the experiences of voluntary evacuees, in which attorney Yuki Ashina has been involved in, draw attention to the existence of damage, the monetary value of which cannot be easily computed. These include the loss of hometowns, human relationships, and families.
Problems with Fukushima's existing damage compensation scheme are also related to the issue of what counts as “reconstruction.” While damage compensation usually provides payments for things lost, it is important to note that, in the case of nuclear power plant accidents, losses continue to be produced for a long period of time. Thus, losses do not only exist in the past when the actual accident occurred but also in the present and future. Now, nearly ten years following the Fukushima nuclear accident, many continue to question whether the responsibility for damage compensation has been adequately fulfilled, whether those people who left towns for evacuation will come back after the lifting of the restriction orders, and when the farming and fishing industry will recover. This disaster is, indeed, still ongoing for the people of Fukushima, and reconstruction continues to be a goal for the distant future. The responsibility for the nuclear accident as well as its costs must thus be understood in the context of such a long-term reconstruction process.
The 2011 Fukushima Daiichi Nuclear Accident provided an opportunity to discuss issues surrounding nuclear energy in regions all over the world. While some countries are attempting to reduce their dependence on nuclear power, there are other countries that are developing new forms of nuclear power generation. Even in Japan, where the accident took place and continues to resonate, the reactivation of nuclear power plants is an argument that divides the country. How should humanity deal with nuclear energy as we turn toward the future? The present international joint project has only just begun its bold attempt to answer such questions, and we believe that this report will put us on the proper path for developing future discussions.
Section II — Overview of the Damage Compensation Scheme for the Fukushima Daiichi Nuclear Power Plant Accident
Since the Fukushima nuclear accident in 2011, a certain level of compensation has been paid to the victims. However, there are some kinds of damage that are not covered by this compensation scheme. The main goal of this section is to introduce the existing damage compensation scheme in Japan. The other goals are: (1) to show what kinds of damage are being addressed in the current compensation scheme; (2) to reveal what kinds of harms are falling between the cracks of this scheme, specifically those regarding different categories of victims; and (3) to visualize the nature of the harms and injuries wrought by the nuclear accident and consider the challenging question of what is necessary for victim relief.
The following is a set of laws that form the basis for the existing damage compensation scheme. Firstly, because Article 3.1 of the Japanese Act on Compensation for Nuclear Damage (hereafter referred to as the “Nuclear Damage Compensation Act”) stipulates that “in the event of nuclear damage caused by the operation of a nuclear reactor or the like, the nuclear operator involved in the operation of the nuclear reactor or the like bears responsibility for such damage,” the nuclear operator, Tokyo Electric Power Company (TEPCO), is responsible for damage compensation.
However, the total dollar amount of damage compensation exceeds TEPCO's ability to pay—according to TEPCO's official public statement: approximately 9.7 trillion yen, about 92 billion dollars as of February 5, 2021.1 As a result, the Nuclear Damage Compensation Facilitation Corporation Act was enacted in August 2011 based on Article 16 of the Nuclear Damage Compensation Act that stipulates support by the national government. In September of that year, the Nuclear Damage Compensation Facilitation Corporation (now titled the Nuclear Damage Compensation and Decommissioning Facilitation Corporation) was established, and through it, the Japanese national government has been providing compensation funds. It is also important to note that this body not only gives financial support to TEPCO but also provides compensation consultation services for victims with the cooperation of a large number of attorneys and notaries public. Over the period from October 2011 to March 2020, a total of 39,239 cases of consultation and information provision (cyclical, permanent-type, etc.) in and outside Fukushima prefecture have been handled.2
Criteria for Compensation
The criteria for the provision of damage compensation by TEPCO primarily relies on the guidelines officially published by the Dispute Reconciliation Committee for Nuclear Damage Compensation (hereafter referred to as the Reconciliation Committee) established under Article 18 of the Nuclear Damage Compensation Act. The Reconciliation Committee has published its official guidelines intermittently since April 2011 and because the core criteria, “Interim Guidelines,” were publicized in August of that year, the series of criteria published by the Reconciliation Committee will be referred to in this section as the “Interim Guidelines, etc.”
The Interim Guidelines, etc. have presented uniform and clear criteria and thereby realized simplified and rapid damage compensation, but these criteria are literally interim guidelines and do not constitute the finalized compensation criteria. For this reason, they feature the following characteristics: (1) the awarding and amount of compensation is linked to whether or not evacuation was ordered in the established zone; (2) monetary amounts are uniform and clear (for example, the amount generally awarded for “psychological damages” is fixed at 100,000 yen, or approximately 968 dollars, per month per person); and (3) as a rule, when the evacuation orders are discontinued, so is compensation. Put another way, the Interim Guidelines, etc. have provided uniform criteria about compensation items and the amount of compensation based on the geographical area in which the victims resided at the time of the accident. Residents living outside of the ordered evacuation zones as a rule are not awarded compensation, and the awarded compensation amounts vary widely even for those living inside the evacuation zones, depending on where the victim lived (i.e., in “difficult-to-return zones,” “restricted residential zones,” or “zones in preparation for the lifting of evacuation orders”). That being said, residents will not receive compensation once a zone's evacuation orders have been lifted.
However, the actual damages cannot be classified or standardized as simply as the Interim Guidelines, etc. dictate. For residents inside difficult-to-return zones, family composition, occupation, and lifestyle status will differ, as will the damage, loss, and injury they might have received from the accident. At the same time, for residents outside the zones in which evacuation was ordered, there are a considerable number of people who chose to evacuate voluntarily. While these residents would never have evacuated had there not been a nuclear accident, they are nonetheless excluded from nuclear disaster compensation under the Interim Guidelines, etc.
Moreover, TEPCO treats the Interim Guidelines, etc. as though they constitute final compensation criteria, instead of as “interim,” “provisional,” or “temporary,” and does not accept claims for damage not described in the Guidelines. It is obvious that the Interim Guidelines, etc. are not meant to provide criteria for aid for the wide range of individualized circumstances. However, we suggest that at the very least the damages calculated in monetary terms needs to combine “damage compensation receivable under the Interim Guidelines, etc.” and “damage compensation that varies according to the individual” in a tailor-made way for each victim.
The Compensation Application Process
It is likely that victims will employ one of the following three methods in their specific compensation request process: (1) a direct claim made to TEPCO in line with the criteria of the Interim Guidelines, etc., (2) an application to the Nuclear Damage Compensation Dispute Resolution Center, or (3) a lawsuit. Each of these has its own advantages and disadvantages.
Firstly, for (1) a direct claim made to TEPCO, a compensation claim may be submitted by merely filling out the prescribed form, with the advantage of simplified and rapid receipt of payments. On the other hand, as described in the preceding paragraph, the disadvantage here is that one cannot receive compensation beyond the criteria stipulated in the Interim Guidelines, etc. Under the Interim Guidelines, etc. those persons excluded from “victim” status cannot use this method.
Next, (2) the Nuclear Damage Compensation Dispute Resolution Center (hereafter referred to as “the Center”) is an extra-judicial mediation and conciliation authority in charge of dispute resolution, established under the Dispute Reconciliation Committee for Nuclear Compensation. This route is used by victims who are not satisfied with the compensation determined by the direct claim procedure, or by those seeking damage compensation that takes into consideration their specific individual circumstances. At the Center, several hundred lawyers work as intermediary committee members and investigators. After they accept victim complaints, they review details while listening to opinions from TEPCO. They then present their proposals for amicable settlements to both sides. Since their proposals are not necessarily bound by the Interim Guidelines, etc., it is possible for victims to receive damage compensation in an amount equal to or greater than that which TEPCO would offer. This procedure can thus be significantly advantageous for victims.
However, it gradually became obvious that the Center's overall proficiency in dispute resolution was in decline. The Center does not provide arbitration but mediation and conciliation. In the Center's planning stage, exercising a binding force on TEPCO alone with regard to the settlement proposals proposed by the Center was considered, but because TEPCO repeatedly claimed that it would sincerely accept the Center's settlement proposals, the motion to enforce a one-sided binding force was denied. At the beginning, TEPCO accepted all settlement proposals from the Center. However, since the spring of 2014, TEPCO has refused to accept some settlement proposals, especially regarding mass claims such as Namie residents’ claim discussed below. Because of this issue, disputes have not been resolved in a timely manner for many of the victims. As TEPCO started refusing to accept settlement proposals, the Center began proposing settlements with reduced compensation amounts, hoping to avoid TEPCO's refusals. This created disadvantages for some victims, where the compensation amounts they accept from the Center are sometimes less than those from direct claims. From the victims’ point of view, it was not made clear, at the application stage, whether they would receive compensation equal to or more than those specified in the Interim Guidelines.
The lawsuit method (3) is the victim's only choice if either methods (1) or (2) of seeking compensation cannot be pursued. As far as we know, as of August 31, 2019, lawsuits are pending in 18 prefectures nationwide, with the total number of plaintiffs exceeding 12,000 individuals.3 For both direct claims and mediation and conciliation through the Center, the receipt of damage compensation ultimately depends on TEPCO's consent. Thus, a significant advantage of a lawsuit is that it does not require a prior mutual agreement between the parties, and the victim can hope for a favorable decision from the court. However, lawsuits can be disadvantageous from the victim's point of view in that the procedure takes a considerable amount of time and there is no guarantee that the victim will be happy with the judgment.4
There are many cases in which victims who claim damage compensation are unsatisfied with the results from making only a direct claim (1), and it might seem desirable to apply to the Center (2), or file suit in court (3), but in reality, the majority of victims ultimately make only the direct claim (1).
Issues with Nuclear Damage Compensation Schemes
In the next section, Section III, Suami delves into the details of the issues surrounding nuclear damage compensation schemes, but here I would like to call special attention to two particular issues. First, all victims need a method that leads to compensation, yet there is a lack of awareness around how to connect victims to means of compensation. The Hamadori region along the coastline of Fukushima Prefecture near the damaged nuclear power plant has long been a sparsely populated area, and the number of attorneys is also extremely low compared to urban areas. Thus, in general, there have historically been few opportunities for people in these rural areas to consult an attorney proactively and to attempt resolution on a legal basis. Additionally, in the wake of the nuclear accident, those evacuees—mandatory and voluntary alike—who moved to different prefectures across the nation faced further difficulty in accessing legal experts for their consultation.
As mentioned in the previous section, the damage (and possible levels of compensation) experienced by different individuals varies but strong support from lawyers was still necessary to make specific damage compensation claims. However, for those individual evacuees from rural towns in Fukushima, the general lack of familiarity with legal experts as well as the physical and social distance from their hometowns made it difficult to come up with concrete damage compensation claims. Such an issue was especially apparent among local cities and towns without aggressive leadership in uniting evacuees and gaining compensation. An exception was the town of Namie in Fukushima Prefecture, which spearheaded proactive efforts to address the compensation problem.5
Second, there was a fundamental problem in that suffering from the nuclear accident would not be relieved by damage compensation alone. As the next section's three case reports point out in greater detail, the nuclear accident affected things beyond those that can easily be calculated in terms of monetary value, such as one's home or employment. The nuclear accident also destroyed people's hometown, a sense of community, interpersonal relationships, and people's sense of purpose in life, but it is extremely difficult to put a dollar amount on those losses. The reality is that some kinds of damage deprive victims of things upon which no monetary value can be placed—these kinds of damage cannot be relieved by means of damage compensation alone. Thus, for victims to recover their purpose in life and human dignity, it is crucial that post-disaster reconstruction policies play an essential role. In reality, however, the only means available to set evacuees on the path to reconstruction was monetary damage compensation, and a recovery of victims’ humanity has largely been excluded from the agenda for post-disaster reconstruction.
Section III — Case Study Reports of Nuclear Damage
(1) Mandatory Evacuees: The Case of the Town of Namie
Damage (Suffering and Damage Sustained by Victims)
According to an interview survey of 9,384 Namie residents, conducted by Waseda University's Legal Assistance Project for Restoration from Great East Japan Earthquake from April to May 2013, the damage suffered by mandatory evacuees is roughly classified as follows:
Breakup of the family. There were many three-generation family households in Namie prior to the accident. After the accident, however, in many cases it was impossible to secure a joint residence in the evacuation destination on the same scale as the previous conditions in Namie, so senior citizens had no choice but to live alone.
Income reduction/lifestyle difficulties. Reductions were observed among town residents at all income levels.
Anxiety and mental anguish. Many residents were exposed to a high level of radiation while evacuating from their town. Therefore, they are frightened of future health effects. Furthermore, not only were the residents forced to move against their will, but it was also unclear when they would be able to return home, and even after returning home, the chances of returning to the same lifestyle as before were low. All of these factors cause considerable anxiety about the future.
Compensation (i.e., Compensation Paid to Victims Suffering Damage)
As mentioned in Section II, the Reconciliation Committee was established based on the Nuclear Damage Compensation Act, in accordance with the Interim Guidelines, etc. It provides compensation payments to mandatory evacuees for property damage (loss of use of land and housing, loss of income from business shutdowns, etc.) and mental suffering (mental anguish accompanying evacuation). These Guidelines were sufficient for managing a large amount of compensation claims in a relatively short period of time, but there was strong criticism concerning both how it was formulated and the appropriateness of the compensation amounts.
Damage That Cannot be Calculated in Terms of Compensation
Compensation claims are based on tort law which allows plaintiffs to recover for civil wrongs. Because of this, some of the damages (for example, for the destruction of communities) cannot be easily calculated. Also, even when they are, the way they are ascertained might not be appropriate, resulting in a portion of damages that cannot be fully comprehended.
The legal principle of damage compensation based on tort law is generally effective for handling individual damage cases such as traffic accidents. However, unlike cases where damage occurs only to a specific individual or a part of society, nuclear damage is spread across a region covering the entire area. For this reason, it is not appropriate to rely solely on damage compensation to individuals as a means to recover from the damage. Damage incurred by individuals must definitely be compensated but compensation payments bring about new problems and suffering. For example, the town of Namie was classified into three zones based on the intensity of the radiation level: namely, zones in preparation for the lifting of evacuation orders, restricted residential zones, and difficult-to-return zones. The property-related/psychological anguish damage compensation criteria vary zone-to-zone.
The extent of contamination from radioactive material is not spread uniformly within each zone but is non-uniform. As such, it is not necessarily the case that all locations within the difficult-to-return zone exhibit higher levels of radiation than do restricted residential zones; subjective and discretionary factors are probably inherent in drawing such zoning lines. However, if and when a zone is classified as difficult-to-return, the victims in that zone will certainly enjoy higher compensation than do the victims in the restricted residential zone. This demarcation will have the effect of breaking down the local community in Namie and will likely hinder reconstruction from the nuclear accident.
(2) Voluntary Evacuees
I will analyze the nature of the damage incurred by “voluntary evacuees” and their compensation. First, “voluntary evacuees” means the people who evacuated based on their own decisions from the areas where the Japanese government did not order evacuations because the total amount of radiation exposure in the area was assumed to be less than 20 millisieverts per year. They are also called “the evacuees from out of the ordered area.” The areas where voluntary evacuees originally lived encompass not only Fukushima Prefectures but also Northern Kanto and Metropolitan areas in Japan. The areas where they evacuated to range all over Japan.
There are many people who evacuated from the originally ordered evacuation areas and then have remained evacuated even after the evacuation orders were lifted, and they can be included in the “voluntary evacuees.” However, I want to focus on the people who evacuated from the areas that were not originally ordered to evacuate. There are no official statistics about the accurate number of these voluntary evacuees because they are not recognized as official evacuees by Japanese government. However, the number was assumed to be about 40,000 in September 2011 according to the website of the Ministry of Education, Culture, Sports, Science and Technology.6 It can be assumed there are still many voluntary evacuees even now.
One of the most unique points for voluntary evacuees is that most of them took their infant or school-aged children with them during evacuation. This is because the main reason they decided to evacuate was to avoid low-level radiation exposure that may cause harmful hearth effects several decades later. It is also characteristic of many voluntary evacuee families that they were composed of only mothers and children because most fathers found it necessary to remain and continue working in order to keep their family income.
Though voluntary evacuees were not recognized as needing compensation, the fourth interim guideline (a supplemental guideline of the Interim Guidelines), announced in December 2011, stipulated that they would be paid the money detailed below. The fact that there were some geographic areas outside the mandatory evacuation zone in which the radiation level was actually quite high made this possible. In addition, a conference held to determine the criteria of compensation for the Fukushima accident that included some voluntary evacuees’ appeals regarding their disastrous situations also promoted their need for compensation. TEPCO complied and paid compensation as follows:
Children under eighteen and pregnant women in specific areas would receive 680,000 yen (about 6,577 dollars) per person for psychological suffering.
Adults except pregnant women would receive 80,000 yen (about 773 dollars) for psychological damage and 40,000 yen for incidental expenses, totaling 120,000 yen (about 1161 dollars)
In addition to this compensation, some voluntary evacuees were able to receive extra compensation for evacuation expenses or rental fees for residences to live in during evacuation through using alternative dispute resolution (ADR) held via the Center. However, those who were eligible to receive extra compensation lived in limited specific areas such as Yamagata prefecture and Niigata prefecture where specialized attorneys could support them.
Despite these compensation options, the relief policy for voluntary evacuees is not adequate for several reasons. First, eligible areas were limited to certain, partial areas (Fukushima City, Koriyama City, Soma City, and so on) despite evacuees having moved from various areas. Second, the amount of money they received is much less than what mandatory evacuees received, even though voluntary evacuees also spent huge amounts of money to evacuate (as discussed further later). Lastly, though there was a system to provide all evacuees with money for rent through the local governments based on the Disaster Relief Act, the free rent policy was terminated in March 2017.
Damage of Voluntary Evacuees
The distinguishing characteristic of the damage of voluntary evacuees was that most of them had to pay for living expenses in both their original households and their evacuated households, in addition to expenses for transportation, furniture, and daily living that mandatory evacuees also incurred. Unlike mandatory evacuees, however, voluntary evacuees did not receive damages for lost earnings or monthly compensation for psychological suffering caused by evacuation. They could only receive the one-time allowance mentioned above, and thus many voluntary evacuees chose to divide their households to secure their living expenses. In a typical case, one parent remained in Fukushima to continue their job and maintain (to some extent) the family's income and the other parent (in many cases, the mother) evacuated with their children. Many voluntary evacuees subsequently fell into financial hardship.
High Anxiety Over Losing Residences
As the policy of lending rent money was supposed to be reviewed once a year based on the Disaster Relief Act, a number of voluntary evacuees had high anxiety about how long the evacuation would last and when they would be able to return to their residences. According to the 91 free telephone consultations the Kanto Federation of Bar Associations held in July 2016, almost half of the evacuees had concerns about losing their residences.7
Concerns about the Destruction of the Community
Voluntary evacuees have two kinds of unique concerns about the collapse of their communities, which are distinct from the concerns shared with mandatory evacuees. Their first unique concern is the conflict between voluntary evacuees and those who chose to stay in their original residences or those who were forced to stay. Some voluntary evacuees feel guilty about their decision to leave their hometown. At the same time, those who could not or did not evacuate tend to blame the voluntary evacuees for causing an overall loss of trust in the safety in their areas. Those who did not evacuate were afraid that the existence of voluntary evacuees spread a negative image that the areas were too risky to continue to live in. The second unique concern is a conflict between voluntary evacuees and the mandatory evacuees. Some mandatory evacuees who have no place to return to, despite their eagerness to return, feel resentment for voluntary evacuees’ decisions not to return, even though they have places to live in. Overall, many voluntary evacuees feel isolated because it is difficult for them to find peers to share their worries with both in their original communities and in the new communities they evacuated to.
Separation of Families
As mentioned before, one of the unique characteristics of voluntary evacuation is that there are many cases of family separation. Some relationships between husbands and wives or between parents and children were destroyed during the long evacuation. Some couples reached the decision to divorce. Above all, these kinds of damage cannot be solved through temporary and limited compensation or through the unstable provision of residences.
The Newly Established Law
The essential concern of voluntary evacuees is that they are not officially treated as “victims” of the nuclear power plant accident. Indeed, they did not evacuate following the orders of the Japanese government. However, it is also certain that they would have never chosen to evacuate had there not been an accident. Therefore, precluding them from the status of “victims” is not consistent with their actual situation. Voluntary evacuees largely decided to evacuate with the motivation of avoiding low-level radiation exposure, a reasonable decision given the uncertainties surrounding low level radiation exposure.
Under these circumstances, the new law, the Act on Promotion of Support Measures for Lives of Disaster Victims to Protect and Support Children and Other Residents Suffering Damage Due to Tokyo Electric Power Company's Nuclear Accident was made in June 2012. This law guarantees the right for each victim to choose between residing in their original location, relocating, or returning (Article 2). It also stipulates that the government shall make the utmost effort to eliminate any health concerns regarding external and internal exposure to radiation (Article 3) and to take responsibility for supporting evacuees in securing housing, finding employment, and providing for children's education. Thus, this new law was expected to give voluntary evacuees rights as victims of the accident.
However, the Basic Framework (Article 5) for policies to make each Article concrete was not decided for more than a year after the law was made. Though the Basic Framework was eventually announced in October 2013, the contents of the Framework were ultimately disappointing to voluntary evacuees because they limited the areas eligible for support to only 33 municipalities in the central and coastal areas of Fukushima Prefecture. Further, there were few concrete policies to carry out the law.
In summary, there are only weak measures for voluntary evacuees as regards to both compensation and supporting policies so far.
(3) The Case of the Farmers Affiliated with the Fukushima-ken Nouminren (Fukushima Prefecture Farmers Group)
Economic Damage Suffered by Victims
The Fukushima-ken Nominren (Fukushima Prefecture Farmers Group, hereafter “Farmers Group”) includes both those affiliated and those not affiliated with the Japan Agricultural Cooperatives (hereafter referred to as JA). The farmers in this group are working together to realize various demands, including satisfactory damage compensation, which they have successfully secured.
The fundamental stance of the Farmers Group is the following:
If victims rely on third party mediators or arbitrators to seek compensation, there is no way for them to assess what damage they have sustained or to know when and how much they will be compensated. The degree of damage varies from one victim to another. When confronting TEPCO, victims are encouraged to first assess the monetary value of the damage they have sustained, become convinced of the validity of their claim, and finally make a decision about their demand.
Instead of subsuming their damage under the categories prescribed by TEPCO's claim documentation forms, victims are encouraged to phrase their claims in terms of harm to their dignity as human beings. The victims negotiate their claims individually. Moreover, damage to agricultural products is not simply reputational damage, but is actual damage.
In Fukushima, the number of commercial farms in 2015 shows a notable decrease of 26% compared to the pre-accident year of 2010, and this rate of decrease is much higher than the nationwide loss of 19%. The number of commercial farms, in particular, shrunk by 18,000, and the reduction was quite remarkable in the Hamadori region evacuation zones. Aging of the population has progressed, and the use and maintenance of farm lots are reaching their limits. The output of agricultural products in 2013 was 165.6 million yen, or approximately 1.7 million dollars, which had stagnated at approximately 80% of the 2009 pre-accident level. Other impacts on the market are found in a fear of “Fukushima-grown products,” and consequent price reductions.
Issues with the Reconstruction Policies of the Government: Effects of Decontamination Policies and Compensation
In 2011, the year of the accident, the radiation level of a harvest of unmilled rice exceeded 500 bq(becquerel)/kg, the radiation cutoff criterion at the time, and its shipment was suspended. Since 2011, measures to control cesium absorption have been implemented using zeolite and potassium spraying onto the fields. Every bag processed for shipment is inspected, and any unmilled rice that exceeds 100 bq/kg of radiation is not distributed for sale.
In the winter of 2012, the trunks and branches of peach, apple, persimmon, and grape vines/trees were high-pressure washed to decontaminate them. The bark of pear trees was also scraped for decontamination. From 2014, measures to strip away the topsoil from groves, orchards, fields, etc. and transfer it to a corner of the farmland for decontamination have been carried out for the farmers who wished for it. As a consequence, radiation levels did fall, but there was no compensation for declines in crop yields due to the stripping of the all-important topsoil or its effect on the fruit trees.
Radiation control measures combined the spraying and sprinkling of potassium as an absorbent with other methods such as the stripping of the topsoil, tilling using a plow, and deep plowing. Starting in 2015, cattle were allowed to graze once radiation analyses of the grass in the pastures showed lower than standard values. However, there are still concerns about cesium intake. For that reason, dairy farmers feed their animals not only grass from their land, but also purchased feed. There is no compensation for this purchased livestock feed, which is an increased burden on the farmers. Zeolite and potassium for decontamination is distributed through local government channels and agricultural cooperatives, and these expenditures are covered by the compensation funds.
Damage Compensation (Funds Paid for Damage Suffered by Victims)
If there is a clear causal relationship with the nuclear disaster, any difference in the sales volume or unit price of a produce from pre-accident standard figures is compensated. However, TEPCO sometimes arbitrarily demands additional documentation beyond what was required immediately after the accident, or changes the method of calculation of compensation. In the past, TEPCO took into account the natural increase in agricultural yield over time (such as the increased output of fruit as the trees age), but it has changed its procedures and now refuses to take this into account. As a result, farmers in Fukushima have less motivation to increase their production scale. In many of these cases in which the unit price of a produce has not dropped and yet the sale volume has dropped, no compensation is paid.
Following the accident, dairy farmers were not able to use grass from their land because of the radioactive contamination and had no choice but to quickly switch to purchased feed. In the aftermath of the disaster, dairy cows began to die regularly after giving birth. There was a farm in which six head of cattle died within six months. Because TEPCO did not recognize any causal relationship to the accident, however, no compensation was paid. A claim for compensation for the decline in milk shipment was also lodged against TEPCO but no payments were made because TEPCO did not recognize the causal relationship between the death of cows and the nuclear accident.
Necessary additional expenses due to radiation testing and the accident are also being compensated. For example, inspection of agricultural products is naturally compensated as an additional cost, but expenditures for soil analysis are no longer compensated. The radiation level of much of the land in Fukushima Prefecture's Hamadori and Nakadori regions exceeds 40,000 bq/m2. This figure shows that these regions technically qualify as radiation-controlled areas. Some farmers asked the Ministry of the Environment, the Ministry of Health, Labor, and Welfare, and the Ministry of Agriculture, Forestry, and Fisheries if the ministries saw any issues with farming in these areas. For over two years they received no straightforward replies, with some responses along the lines of “since you are a self-employed person, there are no departments that can address your concerns.” Yet for laborers working in farming corporations, employers are required to carry out control measures such as radiation dose control and health diagnoses. There is a problematic contradiction in these policies.
Damage That Cannot be Calculated in Terms of Compensation
Following the nuclear accident, newly introduced criteria emerged mandating that no infringement of rights be recognized in areas where the radiation measures 20 mSv/year or less. These are government-mandated guidelines and they have in effect treated Fukushima as separate from the rest of Japan. Outside Fukushima Prefecture, the general public's annual dose limit is 1 mSv, the same as before the accident. The 20 mSv amount is considered as an emergency dose limit and serves as grounds for pain and suffering, grounds for evacuation, and grounds for compensation. The revocation of the criterion of 20 mSv is important for the reconstruction of Fukushima.
In the Farmers Group, the radiation level in becquerels (Bq) of the members’ farmlands is measured and is shared with the members wherever it is possible. The Ministry of Agriculture, Forestry, and Fisheries measures the air radiation rate (in Sievert) via aerial monitoring (2 km in all directions). However, farmers work the land itself, touching the soil and sometimes even inhaling its dust—radiation exposure is often particularly high in orchards since no tillage is done. The Farmers Group has been requesting that, rather than the air radiation rate, the land radiation level in becquerels should be used to measure radiation and inform the public. The circumstances force Fukushima farmers to labor in this affected area, and they are left with no choice but to risk exposure. They are demanding 30,000 yen per decare as compensation for their continued farm work in contaminated farmlands in the affected areas, but this has not come to fruition.
Responsibility (People and Groups Shouldering the Burden of Responsibility for Compensation Payments)
Fukushima-grown produce is sold at a low price because of the nuclear accident and the radioactive substances released by it, not because of misinformation consumers may have about risks associated with the produce from Fukushima. Most radioactive substances in harvested agricultural products are below the reference value or under test detection limits, but the farmlands are still contaminated with radioactive substances. Reducing such damage to reputational damage in a situation in which there is no prospect of controlling the nuclear accident fallout or decommissioning the nuclear reactor itself is nothing but transferring responsibility to consumers. It should not be forgotten that the responsibility for the damage lies with TEPCO, which caused the accident, and the government that promoted nuclear power in the first place.
The Future Oriented Uses of Farmland: Toward Renewable Energy Enterprise
2012 saw the start of the renewable energy buyout guarantee scheme (Feed-In Tariff). Farmers are attempting to move away from nuclear power by generating energy they need themselves. To stabilize farm management, farms are being encouraged to install solar panels. Regional energy sources for local city residents and farmers are now indispensable for the sake of energy independence, intra-regional circulation of money, and the maintenance and development of local communities. Citizen-funded power plants have been built in Ryozenmachi in Date City with a maximum output of 50 kilowatts, and in Atami-cho in Koriyama City with a maximum output of 210 kilowatts. Further, corporations that generate power are being launched in various localities, promoting solar power generation. These initiatives make use of idle land owned by Farmers Group members. The planned total output is six megawatts. There are also plans to set up a power plant using methane gas generated through anaerobic fermentation of food residue, organic sludge, livestock manure, and energy crops.
|Units||Fukushima Prefecture||Fukushima Prefecture||Fukushima Prefecture||Fukushima Prefecture||Nationwide|
|2015 A||2010 B||Change C (A-B)||Rate of Change (%) (C/B)||Rate of Change (%)|
|Agriculture & Forestry||# of Businesses||53,623||72,604||18,981||26.1||18.7|
|—Agriculture||# of Businesses||53,157||71,654||18,497||25.8||18|
|—Forestry||# of Businesses||2,721||4,929||2,208||44.8||37.7|
|Arable Land||Hectares (ha)||100,279||121,488||21,209||17.5||5|
|—Rice Paddies||Hectares (ha)||77,283||90,572||13,289||14.7||4.8|
|—Lumber/ Forestry||Hectares (ha)||5,076||5,859||783||13.4||11.8|
|Abandoned Fields/Paddies||Hectares (ha)||25,226||22,394||2,832||12.6||6.8|
Agriculture output calculated (Unit: 100,000,000 yen)
|Cows raised for meat||137||108|
Section IV – Nuclear Damage Compensation and Reconstruction of Fukushima Fishing: The Case of Soma City
The Fukushima Daiichi Nuclear Power Plant accident had a tremendous impact on coastal fishermen who make a living from the ocean. Fishing operations have been suspended in the coastal waters of Fukushima since the accident, and despite conducting trial runs, the situation is not looking brighter for a resumption of operations. The purpose of this section is to examine the actual condition of the damage that cannot be captured simply by looking at damage compensation, as well as the gap between damage compensation and the reconstruction of the fishing industry, based on interview surveys conducted among coastal fishermen from Soma City, Fukushima Prefecture in 2014.
The Case of Soma City, Fukushima Prefecture
Many of the families working in the coastal fisheries in Soma City, Fukushima Prefecture lived in districts near the coastline. Thus, most lost their homes in the giant tsunami of 2011, and many people lost their families. Mr. Akasaka was a coastal fisherman in his fifties and one of those living in this coastal region.8 Luckily, his family evacuated to high ground after the earthquake, so everyone was safe from the tsunami—but his home, which he was so fond of, was swept away, leaving only the foundation. Starting immediately after the tsunami and for the next two months, Mr. Akasaka and his family lived as evacuees, relocating to temporary housing. At the time of the interview in 2014, he was still living in the same place with his wife. Plans were underway for a group transfer to higher elevation for those who lived in districts near the coast, and within three years their new home would be finished. While Mr. Akasaka was happy that prospects were looking up for the reconstruction of his family home, he did not hold the same optimism for the prospects of the fishing industry, so he had deep anxiety about the future.
In 2011, on the afternoon of the earthquake, after they took in the last catch of the day, Mr. Akasaka and his wife were resting at home. Right when the large quake had settled down, Mr. Akasaka's wife headed toward the designated evacuation site on high ground and Mr. Akasaka returned to the harbor to take the boat offshore. When a large earthquake occurs, generations of fishermen in this region have a practice of taking their boats out to the open sea before the tsunami makes landfall. This was customary to protect the boat, which is the fisherman's indispensable possession, and many of the fishing boats, including Mr. Akasaka's, remained unscathed.
Risking his life in this way protected the fishing boat. However, since the ban on fishing continues to this day due to the radioactive contamination from the Fukushima accident, most boats have spent their time since the earthquake moored in the harbor. At the time of this report nine years have passed since the earthquake and the result of regular monitoring tests has shown a downward trend on the measured dosages of radioactive substances detected from the bodies of fish and other seafood. Starting June 2012, continuous trial operations have been conducted targeting fish species in which radioactive substances are continuously not detected, and assessment surveys at shipment destinations of Fukushima Prefecture-caught seafood are being conducted. Furthermore, the number of species of marine life targeted by the trial operations has increased dramatically from the initial three species. According to the Fukushima Prefectural Federation of Fisheries Cooperative Associations, as of February 20, 2020, 228 species of marine life tested safe for consumption.9 However, consumer evaluations of Fukushima-caught seafood are still severe. Even when it has been established by monitoring results that there is no radiation effect, one can predict that it will be many years before consumer anxiety about Fukushima-caught seafood will ease up.
For the nearly 10 years since the earthquake, the coastal region's fishermen have spent their time mostly on activities other than fishing. Although they received compensation for the tsunami and nuclear accident-related damage, these funds have been exhausted by the rebuilding of homes, re-purchasing of fishing gear, and the maintenance of the fishing boats saved by putting them offshore, etc. Because of this, many fishermen are working at reconstruction-related sites as day laborers. Some of these individuals have expressed concerns about their identities as fishermen. Hardly any have been on a boat in the long years since the earthquake, and as they work at construction sites without knowing when they can get back to fishing again, days of frustration are spent wondering if they will be able to return to their true calling. If the nuclear accident had not happened, the rebuilding of the fishing industry would have occurred much more rapidly. However, the discharge of contaminated water into the ocean continues even today in Fukushima, and the concerns about the future held by these fishermen who have lived in harmony with the sea are indeed great.
For Mr. Akasaka, who has been unable to return to his true calling as a fisherman, finding himself powerless was like a battle with himself. Ever since May 2011, when he started living in the temporary housing, he has been working on construction sites. As he patted his tanned cheeks, Mr. Akasaka said, “Only my skin color is the same as when I was fishing, lightly darkened by the sun,” as a self-deprecating smile rose to his face. “However, before when I was working as a fisherman on the ocean, the condition of my body was completely different. Even though I am a fisherman, I am wearing the temporary mask of a construction worker. I wonder if the day will ever come when I can get back to fishing? I might not be able to end my days as a fisherman,” he said sadly. At the time of the interview-based survey, in the summer of 2014, Mr. Akasaka had not stepped onto a fishing boat even once since the earthquake. Trial runs have begun on several types of marine life and he had friends who were able to go fishing once or twice a month. But because flounder, Mr. Akasaka's specialty, had not been entered into the list of species targeted in the trial operation, he has not even been able to do the trial runs. The struggle related to identity described above is not well reflected in the support proffered by compensation funds.
While the fishermen do anticipate the eventual reopening of fishing waters, the future that follows these operations nevertheless is clouded in uncertainty. Because TEPCO wishes to end its responsibility for compensation soon, it wants these operations to start as early as possible. The fishermen themselves are hoping for the fishing industry to restart. At the same time, however, consumer anxieties about Fukushima-caught seafood are such that even if these operations start up again, there is no guarantee that the fish will sell, and deep anxieties remain about whether fishing operations are economically viable. If it turns out that the market price for fish when fishing operations open in the future is far lower than that before the earthquake, the fishermen will have to make a claim to TEPCO based on damage caused by false rumors and misinformation, but in the end exactly how much TEPCO will consent to pay out is very much up in the air.
Damage Compensation in the Coastal Fishing Industry
Following the nuclear accident, high concentrations of radioactive substances were detected in marine life whose habitat was the surrounding coastal waters and, starting immediately after the accident, fishing operations were suspended in all Fukushima Prefecture waters. Trial operations are being done at present, though actual fishing operations are not yet set. For this reason, damage compensation is being paid by TEPCO for damage caused by the suspension of operation. The operational suspension status continues, and compensation payments are also continuing.
In general, when a disaster affects the coastal fishing industry in Japan, overall negotiations for damage compensation are handled by a prefectural federation of fishing cooperatives (hereafter referred to as fish coops). In the case of the Fukushima nuclear disaster, Fukushima and neighboring prefectural federations of fishing coops took the initiative and hired attorneys to conduct compensation negotiations. However, individual coop members, namely coastal fishermen, are required to have detailed catch records for the last five years in order to claim their own economic losses caused by the nuclear accident and receive actual compensation. The rough calculation of compensation is made as follows. First, the years with the highest and lowest hauls are taken out from the past five years’ catch records, and the remaining three years’ average amount of haul is calculated. This then dictates the amount of damage compensation owed due to the suspension of fishery operation, and TEPCO will be requested to pay this amount.
In this way, when one looks only at the conditions of compensation for the economic damage accompanying the suspension of operations, one may be forgiven for thinking that the fishermen are receiving appropriate compensation. However, as many fishermen told me in their interviews, they have lost more than compensation can cover. The loss of the victim's identity as a fisherman, and the unending anxiety regarding the re-birth of the fishing industry mentioned by Mr. Akasaka are not generally categorized as damage to be compensated. We should take clear note of the fact that the opportunity to catch fish was not the only thing that was taken away from fishermen by the nuclear accident.
Reconstruction of the Fishing Industry
As was the case with the Fukushima nuclear accident, and many other anthropogenic disasters, “responsibility” for reconstruction is often interpreted as “compensation responsibility.” However, this blurs the lines of responsibility for damage that does not fit into the compensation schemes currently in play, and distorts the meaning of reconstruction. Reconstruction of the fishing industry is not finished once trial operations have segued into real operations, in the same way that lifting the evacuation orders does not automatically mean reconstruction is complete for an area. Also, the responsibility that should be borne for evacuees and fishermen by TEPCO, who caused the accident, and the state government that actively promoted policies of nuclear power, does not disappear simply because regular fishing operations resume and evacuation orders are lifted. Isn't their guaranteed responsibility not just for damage compensation, but also for reconstruction?
What is reconstruction, then? When I posed this question to Mr. Akasaka in the summer of 2014, he answered, “I can't even imagine reconstruction right now.” As Mr. Akasaka put it, “If the prospect of actual fishing operations is no good, then nothing will get off the ground at all. If the prospects for actual fishing operations are good, then maybe we can start to think about reconstruction.” In other words, reconstruction to him means a process that can begin only after a return to regular fishing operations. Just as we can see from looking at past case studies of nuclear weapons testing in the Marshall Islands and the Chernobyl nuclear accident, the time necessary to recover from radioactive contamination is quite long. With reconstruction comes many difficult things. In spite of that fact, accident responsibility is often understood as compensation responsibility—and we wonder why those who are responsible are trying to relinquish their responsibility in less time than the period actually needed for reconstruction.
Many people involved with reconstruction policy will tell you that reconstruction is not a return to the state before the earthquake. If that is true, shouldn't responsibility for the nuclear accident be regarded in the same way? For that which was taken from victims, merely going back in time to provide compensation does not count as fulfilling responsibility. Responsibility is not just about the past; it should also be about the present and the future.
Section V — Issues with the Compensation Scheme for Nuclear Accident Victims from Discussions in Japan after the Fukushima Accident
Following the Fukushima Daiichi Nuclear Plant Accident, compensation was given to all those who suffered injury and damage due to the accident. First and foremost, this included the many residents who had no choice but to undergo mandatory evacuation, and also a large number of individuals and businesspeople. In this section, we give an overview of the kind of issues that were discussed in Japan after the accident of March 2011 with regard to compensation to the victims with the aim of obtaining suggestions for our quest for an appropriate compensation system.
Disaster Reconstruction and Compensation for Damage
The Limits of Damage Relief by Compensation
In Japan, almost ten years have passed since the accident, so the limits and insufficiency of victim aid through the damage compensation system are starting to be recognized. As of February 5, 2021, TEPCO secured governmental support, and approximately 9.7 trillion yen (approximately 92 billion dollars) had already been paid to a large number of victims as compensation.10 However, in actuality, there is a considerable portion of compensation payments that are not directly linked to life recovery/regional reconstruction, and the appropriateness of victim aid that centers around damage compensation is being called into question.
The Harm Inherent in Damage Compensation
Of course, the principle of “full compensation for damage” must be observed. This is because the victim has the right to make a claim to the injurer for compensation. However, the full costs of potential compensation are not accounted for in calculations of the cost of nuclear power generation, which leads discussions of nuclear policy astray. However, it is notable that compensation payments have created the following divisions among victims of the earthquake and the Fukushima accident because of the applied criteria for compensation: a) the division between earthquake/tsunami victims and nuclear accident victims; b) the division between mandatory and voluntary evacuees; and c) the classification of residence among mandatory evacuees (zones in preparation for the lifting of the evacuation orders, restricted residential zones, and difficult-to-return zones). The presence or absence of legal effects are decided upon depending on whether or not certain requirements are fulfilled. This is an essential attribute of contemporary law and is usually understood as a proper phenomenon. However, especially under the circumstances of a mandatory evacuation which damages the local community on all fronts, the current compensation system has the effect of anchoring such damage and making it more severe.
Compensation Payments and Reconstruction of Livelihoods
In addition, although compensation payments are substantial for mandatory evacuees, they do not always contribute directly to the reconstruction of their livelihoods. The intent of the damage compensation system is for the victims to be able to start a new life by receiving compensation for the damage they have sustained, thus restoring their lives to the pre-disaster state. For the victims of the Fukushima accident, however, the compensation may be enough for their day-to-day living but it is not enough to overcome the obstacles to reconstructing their new lives. As a result, many of the victims are still without a clear plan for rebuilding their lives. For example, fishermen are unable to resume their normal operations due to radioactive contamination of the ocean from the nuclear accident. The circumstances surrounding the farmers have not improved either, as consumers are avoiding the purchase of agricultural produce from Fukushima out of concern for the radioactively contaminated soil, and the sales prices of products from Fukushima have dwindled. Furthermore, elders who were forced to leave their hometowns are having difficulties adjusting to their new environments, which leaves them isolated. Children who had to move to another prefecture are often bullied at their new schools. Although the fact that the compensation for damage does not necessarily result in the rebuilding of livelihoods is an inherent limitation in tort law for damage compensation, this limitation is even more real and prominent in the case of nuclear disasters in which the foundations of local communities and local industries have been wholly destroyed and swept away.
Emergence of New Damage Associated with the Victims Returning Home
It is natural to assume that the compensation process would approach its end as compensation is paid out to the victims. The evacuation orders in some of the forced evacuation areas have been lifted and some of the residents have already returned. However, it has been reported that some business owners ran into financial difficulties after they returned home and resumed their businesses, representing just one of the obstacles facing evacuees in reconstructing their local communities. In these cases, TEPCO is likely to claim that the compensation has already been completed and that there is no causation between these difficulties and the nuclear accident, but in reality, the causation cannot be categorically denied. By March 2017, most evacuation orders were lifted, except for the “difficult-to-return zones” in which evacuees are unable to return for the foreseeable future due to high-dose radiation. In light of this, claims for damage compensation are likely to continue for the near future. In 2013, the Ministry of Economy, Trade, and Industry (METI) estimated the total amount of compensation at 5.4 trillion yen, but close to 6.5 trillion yen had already been paid by 2016, far exceeding the initial estimate. According to the new estimate in December 2016, therefore, the total amount of compensation would balloon to 8 trillion yen. Even then, it was still unclear as to whether or not this amount would fully cover the compensation. As mentioned before, more than 9.7 trillion yen has been paid up to now. In essence, with the circumstances still in flux, what was formerly potential damage is revealing itself to be actual damage, and therefore it is not clear when the compensation payments will be completed.
Limitations of the “Compensation for Damage” Framework
In general, for a disaster such as a nuclear accident in which the entire region is affected, a system of paying compensation only to individual victims is simply inadequate. This is because the sum of the damage sustained by each individual victim still does not reflect the various kinds of damage that were sustained by the community as a whole. In addition to reconsidering how the damage compensation system is structured, it is necessary to consider a separate system that could complement the compensation system.
Discussions in Japan after the Fukushima Accident
In this part, I will outline the issues that have been debated in Japan since the Fukushima accident and provide concise explanations of them.
Compensation for Damage vs. Compensation for Loss
In the case of the Fukushima accident, since the efforts to provide relief to the victims have been made in accordance with the Nuclear Damage Compensation Act, it is irrefutable that payments made so far to the victims have been compensation for damage. The argument could be made that this is a case of “eminent domain” (Article 29-3 of the Japanese constitution) in which the state must compensate private parties for the use or loss of their land for public use, particularly in the case of the mandatory evacuees. This is because residents were forced to evacuate based on the evacuation order zones that were established by the government. As to damage compensation, Japanese law adopts the principle of “actual loss compensation” (resulting in the denial of punitive damages) and it is therefore difficult to be compensated for more than the objective value of the assets. On the other hand, some take the view that compensation for losses should take survival security and livelihood protection into consideration, which can potentially allow for a more flexible calculation of the amount of payment than that of compensation for damage. Having said that, in the case of the nuclear disaster in Fukushima, although the compensation is for damage, payments in amounts exceeding the objective damage have been approved. For example, because the prices of real estate are generally higher in areas where the evacuees are resettling compared to the prices in the evacuated zones, the amounts are determined by considering the additional cost that would be required for securing new real estate property. This fact in itself suggests that the existing compensation system based on the principle of “actual loss compensation” is adequate.
Structure of the Damage Compensation System
The major issues that have been debated regarding the damage compensation system are as follows:
Scope of Victims
It is natural that mandatory evacuees are considered victims of the Fukushima accident, but when it comes to the voluntary evacuees, i.e., those who evacuated from areas for which an evacuation order was not issued, the damage they have sustained and their connection to the Fukushima accident is a point of contention. This is because their decisions to evacuate were voluntary in one sense, even if in reality they had no alternative but to evacuate. For this reason, the amount of damage compensation that has been paid to voluntary evacuees is significantly lower than that paid to mandatory evacuees, and the scope of voluntary evacuees who are eligible for compensation is limited to those who were residents of Fukushima at the time of the accident. This means that the status of voluntary evacuees as victims is not fully recognized.
Victims are not limited to those who were forced to evacuate. Many business owners, both from within and outside the evacuated zones, have experienced financial damage from business interruption and reduced sales after resuming their businesses. Determining which business owners qualify as victims is particularly problematic when the damage is reputational damage (e.g., damage from harmful rumors or misinformation, described further below).
Each local government in the evacuated zones is also a victim on its own, independent of its residents. This is because not only has it been forced to cover various expenses for the Fukushima accident but because municipal properties have also been damaged. Having said that, these local governments have received financial support from the central government. The issue to be discussed is with regard to how this financial support should be evaluated in relation to the damage.
Scope of Damage and Calculation of the Amount of Compensation
According to Japanese law, damage that is related to the Fukushima accident is eligible for compensation, which include economic damage (property, income) and psychological damage (consolation). For the former, “reputational damage” became a point of contention. Reputational damage was recognized in precedents, but a wide range of reputational damage that would have been considered far out of the scope of conventional criteria has been included for compensation, such as the lower prices of agricultural and fishery products across Japan (i.e., not just in Fukushima). For example, based on the supplement to the Interim Guidelines, mushrooms that were produced 800 km away in Hiroshima are also considered to have sustained reputation damage.
As for the latter, determination of the “base amount for psychological damage” for the mandatory evacuees was debated in particular. Starting with the sudden evacuation order, mandatory evacuees had to endure poor living conditions for a long time. The residents of difficult-to-return zones do not even know when they will be able to go home, which means that they have practically lost their hometowns for good. For residents of zones prepared for evacuation orders to be lifted and in restricted residence areas, even if they are able to return, their hometowns are far from what they remember. It is likely that very few will actually decide to return out of concern for low-dose exposure and deteriorated living infrastructures. Although there is no doubt that these circumstances are causing a great deal of extreme psychological pain, it is not easy to assess them in terms of monetary amount. In the case of the Fukushima accident, the base compensation amount for psychological damage was set to 100,000 yen (about 968 dollars) per month by the Reconciliation Committee—an amount that received strong criticism from victims. First of all, the compensation criteria were set based on inadequate investigation. For psychological damage in which an objective justification of the calculated amount is difficult, a thorough survey of the actual conditions through victim-oriented interviews and the like would have lent credibility to the criteria. In other words, the opinions of the legal experts in the Committee alone are unable to substantiate the criteria.
Secondly, the rationale behind the compensation criteria is also important to convince victims. The Reconciliation Committee explained that it decided on the compensation criteria based on the criteria for victims of traffic accidents. This explanation was not well-received by the victims. The psychological damage due to mandatory evacuation (e.g., separation of family members, reduced income, difficulties and anxiety of living as evacuees), anxiety, and suffering (including the fear of radiation exposure and uncertainty of the future) are completely different from those caused by traffic accidents. Therefore, it is not possible to simply adapt the traffic accident criteria to the situation of nuclear disaster.
Third, the appropriateness of the compensation criteria themselves is questionable. All of the lawsuits that were filed by victims across Japan have demanded much higher compensation, suggesting that many victims are not satisfied with the amounts that were set by the Committee. However, for psychological damage, the first and second points reflect the appropriateness of the monetary amount.
Subject of Liability
In Japan, only the nuclear operators (mainly electric power companies) are subject to liability in accordance with the Nuclear Damage Compensation Act, and they bear liability without fault. However, two issues have been debated since immediately after the accident. The first is whether or not the government, in addition to the nuclear operators, should be held liable. Many of the lawsuits that have been filed by the victims pursue not only the liability of TEPCO but also that of the government, because for all intents and purposes, nuclear power generation has been promoted as a government policy. The second issue, in relation to the first, is whether the liability of the nuclear operators is unlimited or limited. If the nuclear operators become bankrupt, their unlimited liability becomes virtually meaningless, and if we consider the fact that nuclear generation has always been a national policy, it can be argued that the liability borne by the nuclear operators should be limited and that the government should also be subject to liability. However, the idea of turning the nuclear operators’ liability from unlimited to limited has met strong opposition from the Japanese citizens as they believe it will lessen the safety consciousness of the nuclear operators and cause a moral hazard. Ultimately, the Parliament decided to maintain that the nuclear operators continue to bear unlimited liability.
Dispute Settlement Understanding
With regard to the procedure for the victims to pursue TEPCO's liability, the following two points have been argued. Firstly, the current Japanese proceedings for civil actions lack a system that can unify the demands made by multiple victims for damage compensations caused by unlawful acts, as happens in class action lawsuits in the US. This flaw is particularly serious when there are many cases in which a large number of victims have sustained damage of relatively small amounts. After the Fukushima accident, the Center, which is an alternative dispute resolution (ADR) body, was established under the Reconciliation Committee to resolve disputes concerning compensations between the victims and TEPCO. In the case of the town of Namie, the local government made a claim to the Center to increase the amount of compensation for psychological damage by acting as a representative for over 15,000 town residents. Such a collective claim is a practical measure against the aforementioned flaw in the system.
Secondly, the ADR procedures are not always effective in resolving disputes.11 As mentioned before, the Center only provides services for mediation and conciliation. As a result, dispute settlement depends upon TEPCO's consent.
Conclusion: A Desirable Compensation Scheme
We believe that the main objective of the compensation scheme as it applies to victims of nuclear accidents must be a recovery from the damage sustained by the victims. However, what the victims truly desire is restitution to the pre-accident state, and damage compensation is the last resort when other alternative measures have been insufficient to achieve such restitution. Reconstruction from the nuclear accident needs to involve recovery, in one form or another, of the victims’ local communities, which have been completely devastated. However, the current damage compensation system in Japan does not independently recognize the destruction of communities as damage. Although it is unclear as to whether or not such damage should be covered by damage compensation, the fact remains that a compensation system that is exclusively focused on the individual victims cannot reconstruct the local communities that have been destroyed as a whole, and therefore the lives of the victims that were built on the relationships with other people within the communities cannot be reconstructed either.
In addition to recognizing that individual victims have sustained their own damage within the general context in which local communities have been entirely destroyed, we believe that the experience of the Fukushima accident suggests that a compensation scheme that can contribute to the victims’ prospective lives is also needed.
Section VI — The Significance of the “Injunction Lawsuit” Filed by Residents to Prevent Nuclear Disasters
On March 9, 2016, the Otsu District Court made a provisional injunction to order a “suspension in operation of the Takahama Nuclear Power Plant's No. 3 and 4 nuclear reactors."13 This ruling put an end to a 5-year-long court action that was started in August 2011 by the residents of Shiga Prefecture who refused to become the victims of severe nuclear damage. This ruling came along when nuclear power plants across Japan were resuming operation as exemplified by both the approval to resume operation of the Sendai Nuclear Power Plant in Kagoshima Prefecture and the Fukui District Court's decision to overturn the original ruling to suspend the operation of the Takahama Nuclear Power Plant. Thus, this ruling was extremely significant as it put a stop to the trend of resuming the operation of nuclear power plants by suspending one that was in operation. It was also a major victory in a sense that it honored the personal rights of the residents who wanted to suspend nuclear operations even if it meant going to court, and there are no words to describe the joy it has brought. Since then, a stay of execution complaint by the Kansai Electric Power Company (KEPCO), the defendant, was denied on June 17 and KEPCO's objection was denied on July 12. The lawsuits have now reached the Osaka High Court, where court deliberation has started.14
The aforementioned lawsuit was filed by the residents based on their anger towards the ongoing trend of resuming the operation of nuclear power plants when as many as 100,000 people are still unable to return home, and the cause and resolution of the Fukushima accident remain unclear. In this context, the residents were concerned about a serious risk of accident at the Takahama Nuclear Power Plant's No. 3 and 4 reactors and the gravity of the associated damage. On April 16 and 17, 2016, an epicentral earthquake caused by an active fault occurred in the Kumamoto region, causing extensive damage. Since then, Mt. Aso has erupted and a fault-type epicentral earthquake caused significant damage in Tottori Prefecture, affecting a wide area with seismic intensity of 4 according to the Japan Meteorological Agency (JMA) Seismic Intensity Scale along the entire Median Tectonic Line. Seismic activity measured at an intensity of grade 3 to 4 was also felt in Osaka. The area of Tsuruga in Fukui Prefecture is known for a string of nuclear power plants concentrated in the area as it is home to 14 nuclear reactors KEPCO operates, and it sits directly above a cluster of active faults known as the Kinki Triangle, of which the Median Tectonic Line forms the base. An accident at the Takahama and Ōi Nuclear Power Plants would contaminate Lake Biwa, which serves as the water source for 14 million residents in the Kinki area who live within a 30 km radius, and the magnitude of such damage would be unimaginable.
The defense counsel summarized the reasons for the suspension ruling as follows. The plant's severe accident measures are inadequate. 700 Gal as the design basis earthquake ground motion is inadequate.15 There is also a risk of a major tsunami. The used fuel pit is not sufficiently safe from such a tsunami. There are no effective evacuation plans, either. Based on these, the defense counsel (1) explicitly placed the burden of proof on KEPCO; (2) clearly pointed out the irrationality of the new regulatory standards; and (3) argued that the approval of nuclear power plants should be a community decision, not an expert decision.
In addition, 1107 residents in the Kansai area filed a lawsuit to suspend the operation of the Ōi Nuclear Power Plant's No. 1 to 4 nuclear reactors on November 29, 2011. Preparation is underway for additional lawsuits with the aim to have up to 10,000 plaintiffs for the second through fifth campaigns.
Section VII — What the Fukushima Daiichi Nuclear Accident Robbed: Exploring the Limitations and Potentials of the Compensation System
Meridian 180 has discussed many critical issues in the past. Who is classified as a victim? What counts as damage? What happens when compensation does not permit for an adequate recovery of a person or community? Who is responsible for compensation? What is considered as disaster reconstruction? This section represents our answers to these questions that were obtained through repeated discussions based on experience from the Fukushima accident. It is our hope that this section will stimulate a conversation about our preparedness for the nuclear accidents that will probably occur again somewhere in the world.
Compensation Issues in the Context of Victims’ Relief
The objective of victims’ relief is to help victims to recover from the serious damage inflicted by the Fukushima accident, to rebuild their lives, and to regain the peaceful daily lives they had before the accident. This objective itself is thought to be widely shared in Japan, and victims’ relief of the Fukushima accident has primarily revolved around compensation payments for nuclear damage. The total amount of compensation paid as of February 2021 to individuals and corporations amounts to approximately 9.7 trillion yen. In order to complete the payment process for such a large amount of compensation, TEPCO assigned about 5,040 staff (as of July 1, 2017) to the Fukushima Nuclear Power Compensation Consultation Room in their Fukushima Headquarters, to handle the payments.16 Payment of compensation is still ongoing as of this writing.17 However, latent harms continue to surface as situations change, making it impossible to predict when the payments can be completed.
If all the damage inflicted on the victims can be dealt with through compensation payments, then completion of the payment will mark the reconstruction and the end of the accident, making the event itself a thing of the past. If that is the case, then prompt payment of compensation should be the foremost focus of policies for rebuilding Fukushima. However, victims do not feel that the damage they have suffered have been fully covered by the payments, and the payments do not seem to directly translate to rebuilding their normal lives. Furthermore, the prospects for the reconstruction of the regions affected by the accident are still unclear (as we will point out later, the definition of "reconstruction" is multi-faceted).18 The compensation payment system assumes that the victims can recover the conditions of their lives prior to the damage through the payment and start anew. For the victims of the Fukushima accident, however, compensation may allow them to make ends meet day-to-day but various obstacles still exist that prevent them from restarting new lives. Thus, many of the victims still do not have clear prospects for rebuilding their new lives. For example, if you are in fishery, because the effects of radioactive contamination still persist and you can only engage in trial operations, you still cannot restart normal fishing operations. For farmers, a rigid inspection of radioactive materials is in place and the products can be verified to be safe at least according to the standards set by the government. Nevertheless, as consumers are psychologically concerned about radioactive contamination of agricultural soil, products "from Fukushima" are still being avoided, resulting in lower prices, and difficulties for the Fukushima farmers remain. Furthermore, a number of senior citizens who were forced to leave their hometowns have had difficulty getting used to wherever they have relocated to and are forced to live lonely lives. There have also been reports about children who moved from Fukushima who have been bullied by others in their new schools. The fact that payment of compensation will not directly rebuild the lives of victims is an inherent limitation of the laws regarding compensation, but this limitation becomes even more apparent in the case of nuclear accidents, where the foundations of local communities and regional industries are fundamentally damaged.
Thus, in reality, compensation payments do not necessarily result in sufficient reconstruction of individual lives nor the rebuilding of local communities, and so the appropriateness of victims’ relief that focuses on compensation payment is being questioned. Despite large amounts of compensation being paid out relatively quickly, why did such a contradiction occur? In order to shed more light on this matter, we need to reconsider the very nature of the compensation payment system.
Inherent Limitations of the Compensation System for Nuclear Accident Damage
The compensation system establishes the final monetary amount to be paid to the victims, by officially determining and acknowledging the types of “damages” (compensatory damages) to be paid by the damaging party, from among various tangible and intangible “losses” actually inflicted on the victims (general damages), and also by assessing the degree of such damage. Victims can forcefully collect the designated amount of compensation through lawsuits as a last resort. On the other hand, “pain and suffering” is excluded from the subject of compensation and is considered not worth legal protection. As a result, under the current compensation system, “pain and suffering” that is excluded from the subject of compensation becomes intangible. Furthermore, even in case of “pain and suffering” included in compensation, any amount of “pain and suffering” that exceeds the acknowledged monetary amount would also be considered non-existent. And payment of the acknowledged amount will mean that the damage has been mended.
In general, victims generally do their best to have their "pain and suffering" officially acknowledged as “damage” under such a compensation system and, once that is accomplished, take actions to increase the amount of compensation so that the public will also acknowledge the severity of their “pain and suffering.” However, there are inherent limitations to such responses. Although compensation is an alternative method of relief when the damage is irreversible, it is a type of legal fiction to assume that compensation can undo a person's “pain and suffering.” In cases of psychological trauma in which, unlike a financial loss, victims cannot simply revert to their original condition, it is clear that treating compensation as a means of restoring the person's original condition is a legal fiction. And if that is the case, no matter how sufficient the compensation system may be, there will always be a gap between the compensation and the victim's recovery from pain and suffering. In addition, once certain kinds of pain and suffering are excluded from damage compensation, any damage is deemed to be non-existent in a legal sense regardless of the “actual” pain and suffering that occurred. In this sense, compensation payments artificially divide the pain and suffering inflicted on the victims, and this structure causes anxiety in the victims. Of course, this is not limited to nuclear accidents, since victims of traffic or medical accidents face the same problems. However, it can be said that the functions of the compensation payment system bring results that are acceptable to other types of victims, whereas with nuclear accident victims, the situation is quite different.
Damage that Cannot be Attributed to Individuals
First, the current compensation payment system is structured with a focus on itemized damage inflicted on each individual or company. That is, the current system is designed to compensate for the infringement of individual interests that are worth legal protection. Individuals’ loss of financial contribution or prospective profit would be compensated as financial damages, while their loss of non-financial interests would be classed under consolation money. In traffic, medical, or pharmaceutical accidents, the majority of damages are to specific individuals. Therefore, the individual-centered system of damage compensation functions well in these cases. However, as a result of the nuclear accident, the forced evacuation zones were completely and fundamentally destroyed. Damage caused to the land, housing, and business operations of the residents in the forced evacuation zones can be acknowledged as generating individual damage. But victims who were forced to evacuate not only lost their assets and means of living, but also the local community which served as the home ground of their daily lives. This is a significant characteristic of the pain and suffering caused by the nuclear accident that is different from other types of pain and suffering that have occurred in the past. Therefore, the pain and suffering inflicted on the residents in the forced evacuation zones is clearly different from the pain and suffering from traffic or medical accidents that do not affect the local community where the victims live. Although nuclear pain and suffering shares certain similarities with air pollution in the sense that they affect a large geographical area, there is no comparison in its severity. When dealing with area-wide pain and suffering that affects an entire region, such as with a nuclear accident, the current compensation payment framework that focuses on individuals cannot fully satisfy the victims’ needs. Simply totaling up the damage inflicted on individual victims cannot draw a comprehensive picture of the pain and suffering caused to the local community.
However, at present, there are no well-developed theories in damage compensation laws to thoroughly understand the losses caused to an entire region. Therefore, in order to be brought under the current compensation system, all losses, regardless of the type, must be considered as individual damage. And so long as the system is ultimately designed to compensate for pain and suffering inflicted on individuals, it is difficult to apply such a system to compensate for any losses or pain and suffering that cannot be associated with specific individuals. In short, the current compensation system, developed with a focus on individuals, cannot meet the needs of entire regions destroyed or groups of residents affected by a nuclear accident, and this mismatch causes the current system to be dysfunctional.
Endless Recurrence of Damage
The second factor that limits the function of the compensation system for nuclear accidents is the aspect of time. As mentioned before, for damage caused by traffic or medical accidents, a specific time that the incident occurred can be identified, and while the effect of the damage may be sustained in the future (as aftereffects), the damage itself is transient. On the other hand, with the Fukushima accident, substantial damage is continuously being generated even after the accident, forcing the victims to live with them. First, since radioactive substances dispersed by the Fukushima accident have not been completely cleaned up even in decontaminated areas, damage resulting from low level radioactive rays generated by these radioactive materials (low level radiation exposure) may continue to occur for a long time. There are different opinions regarding the possibility of actual health damage caused by low level radiation exposure, but we must at least recognize the fact that anxiety caused by fear of low-level exposure will persist. Second, due to an extended evacuation order and because of residents’ consideration of the danger of low-level exposure, the infrastructure for local livelihoods was destroyed. Because of this, even though the evacuation orders have been lifted, many residents continue to remain evacuated. Some still live in temporary housing and many continue to face various inconveniences, which forces us to acknowledge that new damage is being created on a daily basis. Third, farmers and fishermen also continue to suffer from damage. For example, for fishermen, a true recovery means being able to fish at sea in Fukushima, like before. However, contaminated water from the Fukushima Daiichi Nuclear Power Plant continues to flow into the sea, and because decommissioning of the reactor is still in progress, it is not certain when they will be able to return to regular operations. While they hope to begin normal operations as soon as possible, compensations for the interruption of business that they are currently receiving will stop as soon as they start normal operations. Yet, there is no guarantee that they will be able to continue normal operations without problems, and this uncertainty makes them hesitant to start again.19
As stated above, damages that are paid out through the compensation system need to be determined within a limited time frame. However, this means that some of the pain and suffering will be excluded from compensation, and pain and suffering that continues to affect the victims will not be taken into consideration. Needless to say, it is theoretically possible to identify pain and suffering that occurs after compensation has been paid, as newly generated damage, and list them for compensation payment. In reality, however, once the scope of damage caused by the nuclear accident has been established, acknowledging newly occurred damage as directly relevant to the nuclear accident requires proving a causal relationship, which can be considerably difficult.20 In short, while the damage resulting from the Fukushima accident will continue to affect victims in the future, the compensation system only covers transient damage that is commonly assumed to occur and, as a result, victims of the Fukushima accidents will continue to feel like their losses were not completely redressed, even if they have received compensation for them up to a certain period in time.
Relying on the Compensation System
Considering these issues, we are forced to face the fundamental problem of how much we should rely on the compensation system in order to recover from the damage caused by the nuclear accident. As has been examined earlier in this chapter, the compensation system alone is not sufficient for victims’ relief. Needless to say, the principle of “full compensation for damage” must be observed in any case. Victims have the right to demand compensation from the assailant. Obfuscating this principle will not only prevent an accurate calculation of nuclear power generation costs, but also move discussions on nuclear power policies toward the wrong direction. At the same time, we must also be aware that compensation payments for the Fukushima accident have caused the following three divisions among the victims of the earthquake and nuclear accident in terms of the compensation standards that were applied, thus making it difficult to rebuild the affected region.
Those divisions are: a) victims of the earthquake/tsunami and victims of nuclear accidents, b) forced evacuees and voluntary (outside of the zone) evacuees, and c) demarcation within the forced evacuees in terms of their residential places (zone preparing to have the evacuation order lifted, residence restricted zone, and difficult-to-return zone). Meeting certain requirements determines eligibility to receive legal remedies. This is an essential attribute of contemporary law and normally would not cause any major inconvenience. However, in the case of nuclear accidents, and particularly for victims of forced evacuation whose local communities were completely destroyed, the current compensation system may anchor the divisions, making them even worse. (Unlike big city areas such as Tokyo, in the Tohoku region that was struck by the Great East Japan Earthquake and Tsunami, including Fukushima prefecture, there existed strong local communities supporting people's daily lives.) When dealing with relief for the victims of the nuclear accident, we are therefore forced to admit that the current compensation system has only limited capabilities.
We must face how, under the present circumstances, damage that is not normally recoverable and problems that are not solvable through the compensation system might have been forcibly processed within the framework of the compensation system. Secondly, we must recognize the limitations of damage compensation as a principle as well as the compensation system itself, and thirdly, discuss various mechanisms that can possibly complement such shortcomings. To begin, we need to seriously discuss what reconstruction from wide-spread destruction by the nuclear accident actually means. It would not be possible to easily arrive at a clear-cut answer to this question, so we need to be prepared to deal with multiple solutions after carefully examining each aspect of the current state of destruction. For example, we may need to flexibly combine the following to compensate for pain and suffering that will continue to occur, or may newly occur, in order to meet the various needs of both the victims and the affected areas while stimulating creative ideas for rebuilding them: a life-long medical treatment program under a general framework of the social security system for all Japanese citizens who were exposed to low level radiation, housing aid for not only the residents of the forced evacuation zone but for all citizens who evacuated out of fear from radiation exposure, continuous aid to affected municipalities, aid for NGOs that support the victims, a system to provide financial aid for new and existing businesses in the affected areas, and a system to maintain and rebuild the local community in the affected areas.
Of course, it is also true that, for the victims, the compensation payment system is the primary means of reconstruction. In the following section, therefore, we will also discuss problems that exist in the design of the current compensation system.
Topics for Discussion Regarding the Compensation System
What Japan experienced after the Fukushima accident raised many topics for discussion regarding the design of a compensation system, including the scope of victims, range of damage subject to compensation, and who should be responsible for the payment. Here, we will discuss the following topics in order: (1) who are victims of the nuclear accident, (2) what is included in the scope of damage, and (3) who is responsible for compensation, and (4) what the reconstruction from a nuclear accident means.
1. Scope of Victims of the Nuclear Accident
Evacuation Zone Defined with a Concentric Circle
First, there is a lot of discussion regarding evacuees who were forced to evacuate through government orders. Those forced evacuees are clearly the victims of the Fukushima accident. However, delimitating the mandatory evacuation zone itself is a difficult issue. At first, the Japanese government determined the mandatory evacuation zone using a concentric circle centered around the Fukushima Daiichi Nuclear Power Plant (set at a 20 km, or 12 miles, radius), but then later extended the area more to the northwest according to actual radioactive contamination. The first issue to be discussed is the designation of the evacuation zone with a concentric circle. On the one hand, this evacuation zone did not necessarily match the actual radioactive contamination conditions and thus led to criticism for its arbitrariness. On the other hand, during the early stages, because the conditions of the contamination were not fully known and there was also a high risk of further leakage of radioactive substances from the power plant, it probably is not fair to criticize the decision to set an evacuation zone based on a concentric circle. However, there is a need to further discuss whether the distance of 20 km (approximately, 12 miles) was appropriate and whether it was necessary to draw lines that divided local municipalities.
In terms of the former, considering the risk of low-level radiation exposure, the question is whether a wider area needed to be designated as a mandatory evacuation zone. At the time, the Japanese government used the standard of 20 Sv a year of exposure to arrive at its decision, but many people in Japan disagreed and still disagree with the appropriateness of this standard. In addition, immediately after the Fukushima accident, the US government recommended a 50 mile (approximately, 80 km) radius from the power plant to be the evacuation zone for US citizens staying in Japan, raising questions regarding the appropriateness of the zone as defined by the Japanese government and concerns for safety spread, especially among residents outside of the mandatory evacuation zone.21 As for the latter issue, it became an issue only because the evacuation zone was directly linked to the standard of compensation, and the resulting differences in the amount of compensation among residents within the same local municipality led to the division of that local community.
During the emergency period immediately after the nuclear accident, it may have been necessary to use a concentric circle to define the evacuation zone as a temporary measure. However, following this period, the zone should be redefined according to actual radiation levels, and through established procedures. In Japan, the evacuation zone was reevaluated several times, but the procedure lacked transparency. The concentric evacuation zone was maintained until April 2014 after which evacuation orders were consecutively lifted for areas with low radiation levels. These reevaluations should also be considered in terms of appropriateness of dividing local municipalities.
Finally, designating an evacuation zone has a substantial social effect on not only the relevant areas but also other areas accepting the evacuees from them. Therefore, we need to understand that designating evacuation zones is potentially a highly political negotiation. What might the effects be of, for example, designating an area with a high population concentration as an evacuation zone? This political factor must be taken into further consideration regarding the treatment of those who evacuated from the areas outside of the evacuation zone, which we will discuss in the next part. Overall, radiation levels are not the only factor that delimits an evacuation zone, and so there needs to be more transparent and effective laws in place to guarantee the “right to evacuate” for residents of areas with high radiation levels that are outside the evacuation zone. Although the Act on Promotion of Support Measures for Lives of Disaster Victims to Protect and Support Children and Other Residents Suffering Damage due to Tokyo Electric Power Company's Nuclear Accident was enacted in 2012 to support the right of evacuation for children and adult victims, there was no realistic policy to put this right into effect and there are strong criticisms that the law is not actually being realized.
Evacuees from Outside the Evacuation Zone
The second topic of discussion which is more critical than the first one is whether to acknowledge the so-called voluntary evacuees, who evacuated to different areas from areas not designated as evacuation zones (either within or outside Fukushima prefecture) in order to escape from the dangers of radioactive exposure. Radiation contamination by the Fukushima accident is not confined to the mandatory evacuation zone but spread to central Fukushima including Fukushima City and Koriyama City, as well as to the northern Kanto area that includes Tochigi prefecture and all the way to the metropolitan regions including Tokyo, though the contamination level there is generally lower. As a result, a number of residents, primarily young mothers with children, evacuated from not only Fukushima but from across northern Kanto to all over Japan. Those “voluntary” evacuees would likely never have relocated unless the Fukushima accident had occurred, so in reality they were forced to evacuate. Based on the concentric circle model determining the evacuation zone, however, it was often argued that their evacuation was voluntary. On that account, their damage claims as associated with the Fukushima accident became a topic of dispute. While the Japanese government admitted that voluntary evacuees have rights to compensation to some extent in December 2011,22 it is problematic that the scope of voluntary evacuees eligible for compensation is limited to only those who were residents of Fukushima prefecture at the time of the accident as there are areas outside of Fukushima that are affected by similar levels of contamination. Further problems have arisen for the forced evacuees. Even forced evacuees from designated evacuation zones are considered to become voluntary evacuees when they remain relocated after evacuation orders were lifted. In fact, after the evacuation order was lifted, in most of the municipalities, only a small population of the residents have returned. As a consequence, the number of voluntary evacuees is increasing, raising more complications regarding questions of compensation.
Business Operators and Municipalities
Nuclear accident victims are not limited to those citizens who were forced to evacuate. Many business operators inside and outside of the evacuation zone suffered financial losses due to disruptions in their businesses and reduction in sales after reopening their operations. The termination of an evacuation order does not mean that market conditions will return to previously experienced levels. Therefore, there have been having long-term difficulties for businesses. Independent of residents, local municipalities (e.g., cities, towns, and villages) within the evacuation zone are also victims in their own right. This is because not only did they have to increase various expenditures because of the accident, their assets (movable property/real estate) were also damaged by radioactive contamination. Local municipalities and TEPCO have different opinions regarding the calculation methods for compensation. While the central government has provided financial aid to the local municipalities after the Fukushima accident, it has become a topic of dispute how such financial aid should be evaluated in relation to the damage calculation.
2. Scope of Damage
The scope of damage refers to the range of pain and suffering inflicted on victims that is acknowledged as being subject to compensation. The following detailed calculations are performed to determine the amount of compensation for such acknowledged damages, and payments are made for that amount.
Reputational Damage of Business Operators
Under Japanese law, damage that has a causal relation with the nuclear accident is subject to compensation, including compensation for both financial losses (assets/income) and non-economic damage (consolation money). As for financial losses, payments were made to victims who had lost their assets/income from the Fukushima accident. Among those payments, the range of “reputational damage” considered for the compensation payments is significantly greater than in the previous cases. A "reputational damage" refers to a financial loss resulting from consumers' reluctance to purchase products such as agricultural and marine products and to travel to tourist spots out of safety concerns, regardless of whether the government declared them safe. The huge gap between the safety standards set by the government and people's sense of security is the biggest reason why there were so many claims for reputational damage after the Fukushima accident.
However, it should be kept in mind that not all business operators succeeded in obtaining compensation for reputational damage. Farmers, fishermen, and tourist business (e.g., travel agencies, tourist entertainment facilities, hotels and inns) mostly demanded compensation for reputational damage from the Fukushima accident. When business operators request compensation for reputational damage, they usually file a collective lawsuit through an association such as a business organization or an agricultural cooperative. Since businesses who do not belong to any organization must bear costs for the lawsuit by themselves, it is difficult in practice for them to demand compensation for reputational damage. In addition, when requesting compensation for reputation damage, it is crucial for business operators to submit past business records to prove that such financial losses actually resulted from consumers’ reluctance to purchase their products or services. In the case of products, the amount of reputational damage has to be determined on the basis of business data from the last 5 years (including a list of products for each production date, the production amount, expenses and other items). First, an average monthly revenue is calculated on the basis of data from 3 years among 5 years (the data in the years of both the highest and the lowest production is excluded from this calculation). Then, the average revenue is compared with the revenue after the Fukushima accident in order to find out the decline in revenue. After due consideration of fluctuations in production volume and the production amount of each item, the exact amount of damage is finally decided. Therefore, if a business operator does not keep sufficient business data accumulated, the amount of compensation will be greatly reduced.
Despite difficulties documenting losses when filing for reputational damage, actual payments to business operators were significantly larger than in past cases of damage compensation. Thus, the appropriateness of the amount was much discussed. So long as we respect the principle of “full compensation for damage," the compensation for reputational damage paid to businesses is considered appropriate. However, with the Fukushima accident, it is clear that the amount of compensation greatly differs depending on the type of financial damage, and that above all, compensation paid to voluntary evacuees is extremely low compared to those paid to business operators. If compensation amounts calculated according to past business data are to be considered appropriate, then we must conclude that the compensation amounts paid to voluntary evacuees are unjustifiably low.
Non-economic Damage of Forced Evacuees
When it comes to assessing non-economic damage, the focus of dispute has long been how to calculate the standard compensation for forced evacuees. The evacuees, beginning with the sudden evacuation order, were forced to live in a harsh environment for an extended period of time. Residents in the "difficult-to-return" zones have essentially lost their hometowns. Residents in both “zones in preparation for the lifting of the evacuation order” and “restricted living zones,” even when they are permitted to return, face local communities that have been destroyed and hometowns that have completely changed. Given the risk and uncertainty of low-level radioactive exposure, deteriorated infrastructure and failed local social systems, only a handful of people immediately decided to return to evacuated zones. There is no doubt that such conditions inflict a great amount of non-economic damage on evacuees, yet it is difficult to evaluate such damage and to calculate it in monetary terms. First of all, we must consider the pain and suffering evacuees experienced after evacuation. There is also a consensus that the existence of a hometown and the functions of the local community had played important roles in the victims' lives before the accident. However, these losses are ambiguous and subjective, and their understanding also depends upon each victim. Therefore, it is difficult to uniformly define them as subject to compensation.
Secondly, even if such pain and suffering could be legally recognized as damage per se, it would be a challenge to calculate a monetary amount for compensation. In the case of the Fukushima accident, the Reconciliation Committee calculated the standard compensation amount for non-economic damage to be 100,000 yen (about 968 dollars) a month. This calculation was strongly criticized by the victims for two reasons. First, the compensation amount was determined without sufficient investigation of the harms from victims’ point of view. Second, in the Interim Guidelines of August 2011, the compensation amounts for non-economic harms were calculated by analogy to compensation standards for traffic accidents. Victims argued that non-economic damage in traffic accident cases is very different from the non-economic damage caused by forced evacuation, in terms of separation of families, hardship, fear of radioactive exposure, anxieties about an uncertain future, and psychological trauma.
As mentioned in the previous section, the current system of damage compensation can only deal with community-wide damage by treating it as a matter of individual damage. For that reason, the scope of damage compensation specified by the Interim Guidelines does not cover all of the various pain and suffering that should be compensated. Accordingly, the evacuees are forced to choose between two options: they must give up on compensation claims entirely or accept the difficulties of proving the existence of uncompensated harms.
Third, the appropriateness of the compensation standard is itself in question. In many lawsuits, and in the appeals to the Center that victims have filed, the claimants have always requested amounts that are higher than the compensation standard. This fact demonstrates that many victims are not satisfied with the amount determined by the Reconciliation Committee. At the very least, in order to satisfy victims, there needs to be a legitimate process for determining the amount of compensation available for non-economic damage.
Compensation for Non-economic Damage for Voluntary Evacuees
Voluntary evacuees from within Fukushima Prefecture are also acknowledged as victims and compensation was made for their non-economic damage as well as their increased daily expenses. However, compensation paid to voluntary evacuees was much lower than that which was paid to forced evacuees. For this reason, many voluntary evacuees filed lawsuits to demand more compensation, but the amount determined by the courts is generally still low. And while free housing had been provided by local municipalities where voluntary evacuees settled, this support measure ended at the end of March 2017. As illustrated by these examples, voluntary evacuees are not sufficiently acknowledged as victims and it is therefore important to discuss how to deal with this problem. The situations of voluntary evacuees from outside the evacuation zone depends upon each evacuee. Therefore, we cannot treat forced and voluntary evacuees in the same manner. On the other hand, so long as the scope of the evacuation zone is problematic in terms of attention to the risk of low radiation exposure, voluntary evacuees should be given as much support as possible. From this perspective, the extreme differences between how forced and voluntary evacuees are treated currently in Japan is beyond acceptable limits.
3. Who is Responsible for Compensation?
In Japan, the Nuclear Damage Compensation Act stipulates that the operator of a nuclear power plant (the electric power company) is solely responsible for compensatory payments and assumes absolute liability for damage caused by a nuclear accident. However, after the Fukushima accident, it was advocated that the government should assume legal responsibility together with the nuclear operator. This is because the promotion of nuclear power had been a consistent national policy of the Japanese government and thus without the government's support, nuclear power plants would not have propagated in Japan. The additional reason is that the government did not exercise its regulatory authority over TEPCO despite being aware of the dangers of nuclear accidents from large-scale tsunamis caused by big earthquakes.23 Thus, many of the lawsuits filed by the victims vehemently pursue the government's responsibility as well as that of TEPCO, and several judgements acknowledged joint liability for victims (e.g., the Maebashi District Court in March 2017, the Fukushima District Court in October 2017, the Kyoto District Court in March 2018, the Tokyo District Court in March 2018, the Yokohama District Court in February 2019, the Matsuyama District Court in March 2019, the Sapporo District Court in March 2020 and the Sendai High Court in September 2020). Although it is doubtful that joint liability is always applicable, joint liability makes sense in situations where the government is negligent in exercising its regulatory powers to ensure the safety of a nuclear power plant.
Secondly, further discussions were had about whether the nuclear operator's responsibility is unlimited or limited. If the responsibility is limited, it follows that excesses of this limit should be the government's responsibility. The Nuclear Damage Compensation Act does not limit the responsibility of the operator and places no compensatory responsibility on the government. This means that if the operator goes bankrupt, then any unlimited responsibility becomes meaningless. Therefore, given that the promotion of nuclear energy had been consistently a national policy, revisions to the Nuclear Damage Compensation Act were presented to limit the responsibility of the operator, while making the government responsible. However, limiting the compensation responsibilities of the nuclear operator to a certain fixed amount, regardless of the amount, risks lowering the safety awareness of the operators, which may thus lead to a moral hazard. Furthermore, since the government's responsibility for compensation ultimately becomes the burden of the general public, there is strong opposition in Japanese civil society toward limited liability. Thus, it seems that for the time being in Japan, the nuclear power operator will continue to assume unlimited responsibility.
As mentioned, under the Nuclear Damage Compensation Act, the government is not liable for any damage from the Fukushima accident. Nevertheless, after the accident, the Japanese government established the Nuclear Damage Compensation Facilitation Corporation and has virtually assumed the responsibility for compensatory payments by pouring large amounts of capital into TEPCO through this Corporation. This means that, regardless of whether the nuclear power operator assumes limited liability or not, in the case of a large-scale nuclear disaster, the government becomes the primary agent of responsibility. This is because it is politically impossible to stop compensatory payments to victims even if the assets of the nuclear power operator are depleted. As long as the government permits potentially dangerous nuclear power generation, the government must be legally responsible not only for the compensatory payments but also for the recovery of the life of each victim and the rebuilding of the local community.
4. Method of Dispute Resolution
If the compensation acknowledged by the nuclear power operator or the government is not sufficient to cover the damage, disputes will arise between the nuclear power operator/central government and victims. In the case of the Fukushima accident, the following two points regarding procedures for the victims in pursuing the responsibility of TEPCO for compensation have become topics of dispute. First, civil litigation procedures in Japan lack a system to integrate allegations of multiple individuals who are involved in the same accident, similar to class-action lawsuits in the US, for cases involving compensation for damage resulting from unlawful acts such as a nuclear accident. This shortcoming becomes especially critical when a large number of victims seek to recover relatively small amounts of damages. After the Fukushima accident, the Center was established under the Reconciliation Committee as an alternative dispute resolution (ADR). Highlighting the shortcomings of this system, the town of Namie filed a claim with the Center as representatives of over 15,000 residents and demanded increased compensation for their non-economic damage.
Second, the ADR procedures under the Center lack effectiveness. Victims took issue with the lack of actual results of the ADR procedure. The Center offers mediation and conciliation, not arbitration. At the beginning, it was discussed whether or not the settlements proposed by the Center should have binding authority on TEPCO. In reply to this discussion, TEPCO repeatedly expressed its willingness to sincerely accept the settlement proposals that the Center presented. Taking this into account, the idea of a unilateral binding of authority was not adopted. During the several years after the accident, TEPCO always accepted the settlement proposed by the Center and so dispute resolution by the center remained functional. However, beginning in the spring of 2014, TEPCO began to refuse settlement proposals for some of the cases, including the aforementioned allegation by the town of Namie, and settlement proposals for collective complaints in particular. The government has been implicitly allowing TEPCO's refusals. Consequently, disputes have not been resolved swiftly for many of the victims. As described, since many of the victims are not satisfied with the standard determined by the Reconciliation Committee, it is a grave issue that the means of dispute resolution are not functioning as expected. To conclude, in order to cope with the dissatisfaction of the victims, this matter requires legal and political means, such as establishing new compensation guidelines or assigning unilateral binding authority to the Center's proposals.
Compensatory Payments and Reconstruction
Various issues that surround the current compensation system are also deeply intertwined with the meaning of "reconstruction.” Damage compensation is normally payment for what was lost. However, a nuclear accident takes away not only the past but also the present and the future from the victims. Now that ten years have passed since the Fukushima accident, the completion of compensatory payments, the lifting of evacuation orders, and the resuming of normal farming and fishery are often equated with completion of the “reconstruction” period. However, for victims of the nuclear accident, their pain and suffering are still ongoing and reconstruction remains a goal for a distant future. We need to understand the “pain and suffering” caused by the nuclear accident and the responsibility for compensation in ways that are aligned with the long-term “reconstruction” process. Our starting point should recognize that while damage compensation is only a step towards reconstruction, damage compensation is not the same as recovery.
When we discuss the relationship between “damage compensation” and “reconstruction,” we have to think of the meaning of “recovery” and its ambiguity. In the ten years since the Fukushima accident, the Japanese government has put forth various efforts for the recovery of Fukushima. The Reconstruction Design Council that was established in April 2011 immediately after the earthquake and tsunami discussed various policies aimed at reconstruction, with the participation of many intellectual figures with close ties to the Tohoku region. Then on June 25 of the same year, the Council made public the “Recommendations on Reconstruction Planning,” which the government adopted as guidelines for reconstruction. The government, at the same time, appointed a Minister for Reconstruction, and in February of 2012 established the Reconstruction Agency, prompting various recovery projects for several years. However, no clear definition of recovery is found in their “Recommendations on Reconstruction Planning” nor in any of the documents issued by the Reconstruction Agency. This is because each has its own definition of “reconstruction.” Some would see reconstruction as returning to life before the disaster, while others consider reconstruction as a way of life with hope for the future, even if that life has changed since before the disaster. Furthermore, the definition of reconstruction is even more complex for the victims of the Fukushima accident. Those who evacuated, those who did not, those who have returned and those who remain evacuated—the damage, harms, and losses that these victims suffer vary widely, and many of them are irreversible. Nonetheless, they must all continue to look forward and continue to live their lives. Given such varied forms of recovery, we cannot depend solely on the uniform policies of the central government. In order to promote a reconstruction that suits the various needs of Fukushima, the role of municipalities, in particular those which are the closest to the victims (e.g., cities, towns, and villages) is so important. The central government should cooperate with those municipalities for the purpose of designing and implementing a compensatory payment system (e.g., standards for damage compensation and dispute settlement procedures) that targets and helps individual victims and the regions they call home.
Conclusion: Building a New Compensation System and The Process of System-Building
The primary objective of a damage compensation system that is utilized for nuclear accident victims is recovery from the damage inflicted on them. However, what the victims truly need and desire is recovery of their peaceful lives before the accident. Compensation does not bring forth a recovery of their original lives and must be the last resort when no other alternative measures can satisfy this need. For a true reconstruction, together with the recovery of victims, the local communities which have been totally destroyed need to be rebuilt, which is difficult to imagine let alone achieve under the current compensation system that does not acknowledge the destruction of a community as an independent damage. Although it is not clear whether or not such destruction should be included in the scope of damage which deserves compensation, compensation for individual victims is not going to rebuild a destroyed community, and the lives of victims who had interactive relationships with other people in their communities cannot be rebuilt satisfactorily.
The experience of the Fukushima accident indicates that we need a compensation system that leads to better future lives for the victims individually and collectively on the basis of understanding that each individual has their own specific suffering within the overall situation where local communities were utterly destroyed. For example, if nuclear accident victims residing in the mandatory evacuation zone were to file a collective lawsuit and under some mutual agreement contribute a part of awarded compensation to a fund for the rebuilding of their local communities, we may be able to better visualize damage to communities that could not be dealt with through individual compensation alone, and to push the reconstruction of the affected area forward even a little.
Last but not least, what is needed for the establishment of such a system is fair and adequate procedures. It is necessary to establish such a system in collaboration with the victims, and by incorporating the opinions of various organizations that are active in the local areas, basic municipalities that assume primary responsibilities for the area, as well as international organizations. Such collaboration will in turn help establish better working conditions for reconstruction. Fundamentally, compensatory payments are for settling of the past. However, in the case of a nuclear accident where damage is continuously reproduced, compensation for past damage must be made in ways to generate new dynamism that leads to building a new future.
To fulfill our responsibility as citizens who live with the Fukushima accident, we will continue to examine the limits of the current compensation system and to explore possibilities to improve its functions, thereby continuing to think of what we can do to recover the peaceful life before the accident that victims truly desire.
Note: This research is financially supported by the Japan Law Foundation (Research No.109 [2014-2015]). On this occasion, we express our sincere thanks to the Foundation.
With the aid from the government, as of February 5, 2021, Tokyo Electric Power Company has paid a substantial amount of compensation (approximately, 9.7 trillion yen, or 92 US dollars) to many victims (approximately, 1,127,000 cases of forced evacuees, approximately, 1,308,000 cases of voluntary evacuees, and approximately 520,000 cases of corporate and individual business operators). Tokyo Electric Power Company, “Records of Applications and Payouts for Compensation of Nuclear Damage,” February 5, 2021. ↩︎
“Results of the consultation business and the content of the consultation,” Nuclear Damage Compensation and Decommissioning Facilitation Corporation, 2020. ↩︎
No lawsuits have reached the supreme court's rulings as of December 2020. ↩︎
See Suami's report, this chapter, Section V. ↩︎
“Kanbenren ga yuku, dai 4 kai” (“The Kansai Bar Association on the move, No. 4”), Kanbenren dayori (Kansai Bar Association Newsletter), No. 235, September, 2016, pp. 1-2. ↩︎
All names of individuals used in this paper are pseudonyms. ↩︎
Fukushima Prefectural Federation of Fisheries Cooperative Associations, 2020, http://www.fsgyoren.jf-net.ne.jp/siso/sisotop.html. ↩︎
Tokyo Electric Power Company, “Records of Applications and Payouts for Compensation of Nuclear Damage,” February 5, 2021. See also Ashina's report, Section I. ↩︎
See Ashina report, Section Ⅰ. ↩︎
This section was written in 2016. ↩︎
“Otsu District Court suspends operations at Kanden Takahama nuclear power plant,” Nihon Keizai Shinbun, July 12, 2016. ↩︎
The Osaka High Court reversed this decision in March 2017. ↩︎
“Gal: A unit of acceleration which represents the intensity of seismic acceleration of the foundation/building due to an earthquake,” according to https://www.kepco.co.jp/english/energy/nuclear_power/jishin_ss.html. ↩︎
Tokyo Electric Power Company, “Records of Applications and Payouts for Compensation of Nuclear Damage,” February 5, 2021. ↩︎
See Ashina's report, this chapter, Section II. ↩︎
For example, in the case of Namie, where residents were forced to evacuate after the nuclear accident, although the evacuation order was lifted at the end of March 2017 except in certain areas, of the total population of 18,020, only 440 people have returned as of the end of November 2017. Even at the end of December 2020, only 1,554 people among the total population of 16,718 reside in the territory of Namie. ↩︎
See Takahashi's report, this chapter, Section Ⅱ. ↩︎
Evacuation order after the Fukushima accident has been lifted in many of mandatory evacuation zones, and some residents have already returned. However, there have been cases reported of difficulties in maintaining businesses by returned business operators, and these are becoming obstacles for residents to return or towards rebuilding. For these instances, TEPCO maintains that compensatory payments have been completed, and that these reported difficulties are not related to the nuclear accident. Under the current compensation system, it is not easy to get acknowledgment that such revenue losses of the business derived from the nuclear accident. ↩︎
“U.S. urges citizens within 80 km of Japan plant leave,” Reuters, March 17, 2011. ↩︎
See Ashina's report, this chapter, Section Ⅱ. ↩︎
Tokyo Denryoku Fukushima Genshiryoku Hatsudensho Jiko Chosa Iinkai (National Diet of Japan Fukushima Nuclear Accident Independent Investigation Commission), “Kokkai Jikocho Tokyo Denryoku Fukushima Genshiryoku Hatsudensho Jiko Chosa Iinkai chosa hokokusho” (Report of the National Diet of Japan Fukushima Nuclear Accident Independent Investigation Commission), National Diet of JapanFukushima Nuclear Accident Independent Investigation Commission, 2012, https://dl.ndl.go.jp/info:ndljp/pid/3514600. ↩︎