Nuclear Compensation

  • Hirokazu Miyazaki

What lessons ought to be learned from the nuclear disaster at Fukushima Daiichi Power Plant following Japan's earthquake and tsunami of March 11, 2011? This question has been asked many times since the disaster. Nuclear regulators, industry experts, policymakers, and citizen activists in Japan, the US, and elsewhere have studied the accident carefully in search of lessons. For example, immediately following the accident, the US Nuclear Regulatory Commission established a taskforce to investigate the Fukushima disaster. The taskforce proposed a long list of technical recommendations for making the US regulatory framework more coherent, but it essentially concluded that Fukushima was not directly relevant to situations in the US given that the accident was caused by a natural disaster of an unprecedented scale:

The current regulatory approach, and more importantly, the resultant plant capabilities [in the United States] allow the Task Force to conclude that a sequence of events like the Fukushima accident is unlikely to occur in the United States and some appropriate mitigation measures have been implemented, reducing the likelihood of core damage and radiological releases. Therefore, continued operation and continued licensing activities do not pose an imminent risk to public health and safety.1

In contrast, and yet not necessarily in contradistinction to this conclusion, Japan's National Diet Fukushima Nuclear Accident Independent Investigation Commission blames the “collective mindset of Japanese bureaucracy,” especially those in charge of Japan's energy policy and regulatory oversight of utility companies:

[The accident's] fundamental causes are to be found in the ingrained conventions of Japanese culture: our reflexive obedience; our reluctance to question authority; our devotion to ‘sticking with the program’; our groupism; and our insularity…

This [mindset] led bureaucrats to put organizational interests ahead of their paramount duty to protect public safety.

Only by grasping this mindset can one understand how Japan's nuclear industry managed to avoid absorbing the critical lessons learned from Three Mile Island and Chernobyl; and how it became accepted practice to resist regulatory pressure and cover up small-scale accidents. It was this mindset that led to the disaster at the Fukushima Daiichi Nuclear Plant.2

If Japanese culture, reflected in the culture of Japanese bureaucracy, is the problem, however, there is little that can be done by way of policy reform.3 Likewise, there is little that can be learned across national boundaries. The premise of the report is that Japanese culture does not fully explain the disaster response and that there are valuable lessons to be learned for other nations operating nuclear power plants.

Despite the powerful argument put forward by sociologist Charles Perrow that accidents like nuclear power plant accidents are “normal accidents” to be expected of any complex technical systems and will happen regularly,4 there is a persistent perception globally that nuclear accidents are anomalies. This perhaps has much to do with the rarity of serious nuclear accidents. To date, only two, one in Chernobyl in 1986 and the other in Fukushima in 2011, have been classified by the International Atomic Energy Agency (IAEA) as level 7 “major” accidents. Whereas the Chernobyl accident has been attributed, at least implicitly, to Soviet technocracy, the Fukushima accident, as noted earlier, has been attributed to the Japanese group-oriented “mind-set,” on the one hand, and the unprecedented scale of the March 11, 2011 tsunami, on the other. The 1979 accident in Three Mile Island, Pennsylvania was far less severe than the accidents in Chernobyl and Fukushima. According to the IAEA it was a level 5 accident; that is, an “accident with wider consequences.” A report compiled by the Union of Concerned Scientists observes:

Fukushima triggered extensive “lessons learned” reviews in Japan, France, the United States, and elsewhere. Many lessons have indeed been learned, but to date few have been promptly and adequately addressed—at least in the United States. The reason, of course is the prevailing mind-set…. In the United States, “It can't happen here” was a common refrain while details of the Fukushima accident were still unfolding.5

The present report seeks to illuminate lessons from Fukushima in two different registers. First, the report draws attention to lessons learned by and for ordinary citizens—particularly, victims of the Fukushima disaster, not nuclear experts or regulators. Other energy sources, such as fossil fuel, hydro power, and even wind, solar, and other renewable energy sources, each also come with social and environmental costs, and issues of compensation have been discussed in relation to various kinds of damage associated with these energy sources. There are issues raised in these cases that are similar to issues examined in this report (e.g., artificial boundaries created concerning compensation eligibility, inequality, and other secondary problems arising from the distribution and use of compensation funds, etc.), but the profoundly uncertain nature of damage associated with radiation exposure—especially, their invisibility, randomness, and long temporality, generates a distinctive set of practical and policy challenges.6

There have been new forms of civic engagement and learning, including citizen-driven collaborative radiation monitoring and other efforts of “citizen scientists,” arising from their distrust of politicians, bureaucrats, and experts. This in turn suggests that “Considerable potential and capacities exist for technoscientific creativity and informed collective learning in the Japanese public, sensitized to the threats of nuclear disaster. … We could do worse than adopt this emerging concerned group of radiation monitoring amateurs as an important component of a blueprint for change."7 This report calls for the incorporation of these citizens’ voices and concerns from below into policy recommendations for the future use and management of nuclear energy.

Second, the report seeks to address the present needs of Fukushima rather than simply anticipate future possible disasters and their fallout. Despite assertions by the government and the Tokyo Electric Power Company (TEPCO), the operator of the power plant, that the accident in Fukushima has been largely contained, there are many dimensions of the disaster that are at least arguably still ongoing and will likely be so for some time to come. For example, tanks used to store contaminated water used to keep the troubled reactors cool are full and reportedly leaking continuously into the Pacific Ocean through underground waterways. Likewise, it appears that the removal of fuel from spent fuel pools and other challenges associated with the long-term decommissioning process are progressing slowly.

One dimension of the disaster that is clearly still unresolved is damage compensation. Nuclear compensation has not been a focal issue of the extensive studies of either the Fukushima disaster or the other two historically significant nuclear accidents. The nuclear meltdown at the Fukushima Daiichi Power Plant caused the contamination of a vast area of Fukushima Prefecture and robbed thousands of local residents of their homes, communities, ancestral homelands, and sense of everyday normalcy. No deaths have been attributed directly to the accident, but over 1,500 lives have been lost due to physical and mental stress related to evacuation. Since the disaster, TEPCO has already paid over 9.7 trillion yen (approximately 92 billion US dollars) to victims of the accident through a compensation mechanism set up for the accident.8 This is by far the largest amount of damage compensation ever paid to victims of a nuclear disaster anywhere in the world and is possibly the highest amount of compensation paid for any industrial disaster, including the disaster at Union Carbide's pesticide plant in Bhopal, India and BP's Deepwater Horizon oil spill in the Gulf of Mexico.9 Despite the large amount of compensation already paid to victims of the Fukushima disaster, many of the victims who have received compensation are not satisfied. There are others who have not been compensated for their losses at all due to the fact that their areas of residence were outside the mandatory evacuation zones (areas within 20 kilometers, or 12 miles, from the troubled power plant as well as some other areas stretching northeast beyond those areas). There are currently nearly 30 pending collective lawsuits against TEPCO and the Japanese government to address these concerns.10 Although the political, legal, and social situations surrounding the Three Mile Island and Chernobyl accidents were radically different from those surrounding the Fukushima disaster, it is important to remember that suffering and fear of health effects from radiation continue for the victims of these two earlier accidents as well.11

This report focuses primarily on ongoing political, legal, and social issues concerning damage compensation and seeks to discern a set of lessons learned from and for victims’ experiences of pursuing nuclear compensation. The report ultimately calls for a more inclusive dialogue about nuclear power plant accident damage compensation schemes with a view to establishing a broader framework for assessing their economic, public policy, and moral implications.

The Enigma of Nuclear Compensation

Nuclear compensation is a complex and peculiar subject. Many nuclear power plant accident damage compensation laws, such as the US Price-Anderson Nuclear Industries Indemnity Act of 1957 and Japan's Act on Compensation for Nuclear Damage, limit or explicitly exempt nuclear reactor manufacturers’ liability.12 These laws dictate that compensation claims should be directed at nuclear power plant operators, not manufacturers, which in turn are required to have insurance coverage for each nuclear power plant they operate through national and international insurance pools.

Issues regarding nuclear compensation are also governed by three international legal regimes: the OECD's 1960 Paris Convention on Third-Party Liability in the Field of Nuclear Energy and several supplementary agreements (Paris Convention); the Vienna Regime consisting of the IAEA's 1963 Vienna Convention on Civil Liability for Nuclear Damages and supplementary agreements (Vienna Convention); the IAEA Joint Protocol of 1988, linking the two regimes; and the IAEA's Convention on Supplementary Compensation for Nuclear Damage of 1997.13 Yet, not all countries with nuclear power plants are signatories to these international conventions. In fact, the US, the USSR, and Japan were not party to any of these international conventions at the time of their respective severe accidents. Even today, China, which has nearly 50 nuclear power reactors and is building more, and South Korea, which has 24 reactors and is actively seeking to export power plants to developing countries, are not signatories to any of the international conventions.

These domestic laws and international conventions were, at least originally, designed primarily to promote nuclear energy and protect the interests of the nuclear power industry.14 These legal regimes have not often been tested due to the rarity of major accidents. The Chernobyl disaster in particular did trigger reforms of these international legal regimes, and some domestic laws, to strengthen victim protections.15 These laws, however, continue to limit liability for operators and suppliers and limit compensation for victims, meaning that investors may continue to pursue nuclear energy without bearing the financial burden of compensation in the case of a major accident.16 The World Nuclear Association, which promotes nuclear energy and represents the interests of the nuclear industry, has compiled an overview of nuclear compensation schemes and identifies the following key “principles” of the global legal compensation regime:

  • Strict liability of the nuclear operator

  • Exclusive liability of the operator of a nuclear installation

  • Compensation without discrimination based on nationality, domicile or residence

  • Mandatory financial coverage of the operator's liability

  • Exclusive jurisdiction (only courts of the State in which the nuclear accident occurs have jurisdiction)

  • Limitation of liability in amount and in time17

The World Nuclear Association report asserts, “Altogether these principles ensure that in the case of an accident, meaningful levels of compensation are available with a minimal level of litigation and difficulty."18 The report also suggests that the compensation paid to victims of the Fukushima disaster so far is disproportionally (and irrationally) large considering the actual scale of the nuclear disaster.19

In contrast, in their 2014 article, Ken Lerner and Edward Tanzman, both from the Argonne National Laboratory, draw attention to the inadequacy of the US nuclear compensation scheme in light of the Fukushima disaster. Lerner and Tanzman point to the possibility that an accident of the magnitude of the Fukushima disaster would “overwhelm the resources currently available in the US system."20 They also observe that the issue of compensation has not been a central concern of the recent policy debate about disaster prevention and preparedness and they urge a more careful study of the Fukushima experience and recommend “advance planning”21 focusing on compensation:

If nuclear power is to be a component of efforts to reduce carbon emissions and mitigate climate change, it will have to be accompanied by the readiness to respond to accidents. Robust response capabilities, including mechanisms to compensate victims, are part of the social contract with communities hosting nuclear power plants.22

The hitherto most comprehensive study of Japan's nuclear compensation scheme set up for the Fukushima disaster is a 2013, award-winning Japanese-language book written by public policy studies scholar Noriko Endo, Genshiryoku songaibaisho sendo no kenkyu: Tokyo Denryoku Fukushima Genpatsu jiko kara no kosatsu [A Study of Nuclear Power Damage Compensation Schemes: Considerations from the Tokyo Electric Power Corporation Fukushima Power Plant Accident]. In it, Endo closely examines the process through which the Japanese compensation system for victims of the Fukushima disaster and its financing mechanism were developed and operationalized. Endo's study focuses primarily on domestic policy-making processes rather than victims’ experiences, but it deserves detailed discussion here given that the book is currently only available in Japanese language.

Although the Japanese legal framework for nuclear compensation before the Fukushima disaster was largely in conformity with global standards for nuclear compensation, Endo draws attention to several distinctive features in the Japanese nuclear accident compensation scheme. For example, in the US, under the Price-Anderson Act, nuclear power plant operators are only responsible for a compensation amount up to the limit of what insurance companies have agreed to underwrite.23 However, in Japan, under the Act on Compensation for Nuclear Damage, operators bear unlimited liability—a feature that prominent Japanese Civil Code experts originally protested.24 Endo suggests that the law's assignment of unlimited liability to nuclear power plant operators resulted from the government's appreciation of the Japanese public's broadly shared sensitivity to the risks of nuclear power stemming from Japan's unique experience of the atomic bombings of Hiroshima and Nagasaki:25

The government took into account the public sentiment toward nuclear energy and the social situation at the time when it introduced a seemingly just and yet impractical system of unlimited liability as if it had guaranteed that nuclear power plant operators assume all liability in the case of an accident.26

As Endo notes, given the limited financial capacity of operating corporations, this is in actuality an unrealistic expectation. In fact, the law does stipulate that the Japanese government should work with the industry to design a financing mechanism for damage compensation when a major accident occurs. In other words, according to the law, the government is expected to provide “aid” if the amount of compensation required exceeds the operator's legally required insurance coverage.27 The mandatory coverage is currently 120 billion yen (approximately 1.1 billion dollars) for each power plant and remained unchanged after the Fukushima disaster. Endo points out, however, that the law is silent on the specific responsibility the government ought to bear in the case of an accident.28

In Endo's view, this “ambiguity” allowed the Japanese government to quickly and flexibly devise a mechanism for processing and financing damage compensation following the disaster in Fukushima.29 It is important to note that immediately after the Fukushima disaster there was a heated debate about a particular clause in the Act on Nuclear Damage Compensation cancelling nuclear power plant operators’ liability in the case of an accident resulting from a “grave natural disaster of an exceptional character."30 As Endo observes, the application of this indemnity clause would have led to a series of contentious lawsuits about TEPCO's responsibility. It would also have forced the government to use public funds to meet damage compensation claims.31 The government ultimately deemed this clause non-applicable for political reasons.

The Japanese government eventually designed a compensation mechanism based on its experience of managing Japan's banking crises since the early 1990s.32 This was ironically apt given that the Fukushima disaster also triggered a national financial crisis. TEPCO was, and still is, a major corporation enjoying a de facto regional monopoly in the greater Tokyo area electric power market. Prior to the accident, TEPCO bonds were rated as equivalent to Japanese Government Bonds in terms of their creditworthiness, and they were held by practically all major Japanese banks and other institutional investors as part of their investment portfolios. The value of TEPCO shares dropped sharply after the accident and there was a broad concern among TEPCO's creditors, major banks, insurance companies, and pensions funds about the possibility of its default.33 TEPCO was quickly regarded by the Japanese government as “too big to fail."34 From the outset, damage compensation was estimated to exceed 4 trillion yen (40 billion dollars), and establishing a financially viable and timely mechanism for processing compensation claims was one of the Japanese government's most urgent tasks. The government needed to act quickly to ensure the financial stability of the operator, TEPCO, but also the Japanese financial system as a whole. In particular, as Endo notes, the government's extensive experience using the Deposit Insurance Corporation of Japan to mitigate systemic risks from failing banks in the 1990s led to the creation of the Nuclear Damage Liability Fund.35 This special vehicle for funding nuclear damage compensation is primarily financed through issuing Japanese government bonds and through contributions from all operators of nuclear power plants in Japan.36

Endo's in-depth analysis focuses on the policy-making and political processes through which the Japanese compensation mechanism was developed for victims of the Fukushima disaster. This report in contrast seeks to evaluate the effectiveness of this compensation scheme through close and on-the-ground observations of the operation of the scheme in Japan, and through a comparative study of the compensation schemes activated for all three of the Fukushima, Chernobyl, and Three-Miles Island accidents. The report seeks to introduce a fresh perspective on nuclear compensation by offering an analysis of victims’ experiences of pursuing damage compensation.

Meridian 180's Engagement with Fukushima

This report is the product of a series of transnational cross-disciplinary and cross-professional conversations that Meridian 180, a multilingual platform for global collaboration, hosted together with scholars and experts based at Cornell University and other institutions since 2011 concerning the nuclear power plant accident in Fukushima. Meridian 180 was founded at the Cornell Law School shortly after Japan's earthquake, tsunami, and nuclear power plant accident on March 11, 2011 and has since become a collaborative endeavor of several universities in Australia, Japan, South Korea, and the US with over 1,200 members worldwide. The project has organized numerous online multilingual forums and in-person workshops and conferences about a broad range of transnational issues from cybersecurity to financial market governance and smart and shrinking cities. And yet Japan's Fukushima crisis has remained a compelling reference point for the project.

The nuclear disaster in Fukushima naturally surfaced as a focal point of debate for Meridian 180. This is not simply because Meridian 180 began in the midst of Japan's unfolding crisis partially created by the nuclear disaster, but rather because the nuclear disaster itself was deeply transnational in scope. The troubled reactors at the Fukushima Daiichi Power Plant were US-designed and the nuclear fuel used at the plant likely originated from countries such as Canada, Kazakhstan, Niger, Australia, Russia, and Namibia—six countries that supply over 85% of nuclear fuel worldwide. Radioactive clouds spread over the Pacific Ocean and contaminated water used to keep the troubled reactors cool has been flowing into the Pacific Ocean, meaning that victims of the accident include non-Japanese citizens such as US servicemembers who participated in rescue work following the disaster. Several cross-border litigations have been waged against TEPCO and the Japanese government.37

Nuclear energy itself is also deeply transnational given its international security implications as well as its origins in efforts to find peaceful uses for nuclear power in the post-World War II world. Japan's nuclear energy policy has never been entirely independent of the country's national security concerns as well as US strategic interests.38 The development of Japan's nuclear energy in fact originates from negotiations related to the Agreement for Cooperation between the Government of the United States of America and the Government of Japan Concerning Peaceful Uses of Nuclear Energy, and a similar agreement made between Japan and the U.K. in the 1950s.39

In light of the transnational currents the Fukushima disaster touches on, Meridian 180 recognizes that many issues we face in today's world are exceedingly complex and are simultaneously both highly technical and deeply social, cultural, and human. This is put into further relief as the disaster—and, specifically, what is widely regarded as its mismanagement on the part of the Japanese government and TEPCO—has exposed the socio-economic, political, and deeply human dimensions of complex technology. The disaster has moreover intensified public distrust for expertise and experts and has revealed a series of intellectual and policy challenges that today's transnational issues pose collectively. These complex global issues call for globally collaborative, cross-disciplinary, and cross-professional solutions incorporating diverse perspectives and values, as well as diverse forms of expert and non-expert knowledge. Meridian 180 seeks to offer a space for this broad consultation. In other words, what Meridian 180 strives to offer is a process for truly democratic conversation about critical issues of today's world. Meridian 180's engagement with post-Fukushima Japan described below serves as a model for this collaborative process.

Meridian 180's engagement with the Fukushima disaster and its after-effects began with the project's two inaugural online multilingual forums: “Cry from the Scene,” proposed and facilitated by Naoki Kasuga, a renowned cultural anthropologist based at Hitotsubashi University, Tokyo, addressing the crisis of knowledge surrounding radiation and radiation exposure; and “A Grand Coalition for a Rise in the Consumption Tax is the Only Way,” proposed and facilitated by Yuji Genda, an influential labor economist and public intellectual based at the University of Tokyo Institute for Social Science, addressing Japan's fiscal and political crisis following Japan's natural and nuclear disaster. These forums provided a distinctive space for transnational dialogues and reflections as Japan's crisis unfolded in the midst of confusion and uncertainty.

One year after the disaster, Meridian 180 once again hosted an online forum titled “How Can We Bring Closure to Crises?” Following the online forum, the project hosted a conference on the topic jointly with Cornell University's East Asia Program. In conjunction with this conference, Meridian 180 also recorded reflections on Japan's crisis by a broad range of experts, from anti-nuclear activists to a humanitarian NGO leader, an architect, a lawyer, and an economist.

In preparation for the first Meridian 180 global summit in Okinawa in July 2016, Meridian 180 established a global working group focusing on the nuclear disaster in Fukushima. The working group included legal professionals, environmental activists, and social scientists from Japan, South Korea, Europe, and the US. The group first hosted an online forum on the future of nuclear energy and solicited input from a diverse group of scholars and professionals, including experts on nuclear energy. The dialogue included a former US nuclear regulator, experts on the accidents in Three Mile Island and Chernobyl, experts on environmental disasters, renewable energy researchers and activists, legal scholars and lawyers working with victims of the disaster in Fukushima, and project finance specialists and others working with the nuclear industry. These scholars and professionals also came from various parts of the world including Europe, the US, Japan, South Korea, China, and Singapore. Other Meridian 180 members who had not actively been involved in nuclear energy-related issues also offered valuable perspectives informed by their own expertise and experience.

The question of the economic, social, and other costs of nuclear energy quickly became a major focus of this dialogue.40 The group discussed a broad range of costs, from the costs of nuclear power plant decommissioning to the costs of site clean-up and spent fuel storage to the human costs of uranium extraction.41 It became clear that the group needed to seek a fuller picture of the costs of compensation for nuclear disasters in order to make policy recommendations about the future of nuclear energy as part of a broader solution to climate change.

After three days of conversation, the issue of compensation emerged as a useful framework for the group's collaboration. Everyone was interested in this issue, albeit for entirely different reasons. Compensation is one endpoint of nuclear disaster management. The costs of nuclear energy certainly need to incorporate the costs of compensation. Most importantly, this is the phase in which a broad range of ordinary citizens are implicated as victims, ratepayers, and taxpayers. A resolution of the issue therefore requires not just the input of scientists and engineers but also engagement with civic activists, anthropologists who work with ordinary citizens, lawyers who work with victims, and project finance specialists who work with the industry and investors. The working group decided to conduct a comparative study of nuclear power plant accident compensation schemes from this broad perspective. This study covers nuclear power plant accident compensation schemes in the US, the Soviet Union (and Russia and other successor states to the Soviet Union, such as Ukraine and Belarus), and Japan. The Meridian 180 Global Working Group on Nuclear Energy intends this report to serve as a fresh starting point for broader discussion about nuclear accident compensation schemes in a way that incorporates diverse perspectives, particularly victims’ perspectives, and asks citizens to navigate the necessary political and economic tradeoffs and make the difficult policy choices.

Outline of the Report

This report consists of four chapters. The first chapter contains a set of brief reports written by scholars and activists working directly with victims of the nuclear disaster in Fukushima. The “Fukushima Team” of the Meridian 180 Global Working Group includes four previously unrelated individuals. Takao Suami is a professor of law at Waseda University. A specialist in EU law, since 2012 Suami has been involved in a legal clinic organized by a group of law professors at Waseda University to aid victims of the nuclear disaster in Namie and other municipalities in Fukushima Prefecture. Yuki Ashina is an attorney based in Shizuoka Prefecture. A graduate of a prestigious law school, Ashina chose to participate in the Japan Federation of Bar Associations’ program to send young lawyers to rural parts of Japan where there are few legal professionals, and she spent the first two and half years of her legal professional career in Soma City, 31 miles north of the Fukushima Daiichi Power Plant. Since the nuclear disaster, Ashina has provided legal assistance for evacuees from Fukushima and has been involved in several claims and lawsuits against TEPCO and the Japanese government. Satsuki Takahashi is an environmental anthropologist who conducted her doctoral research in a fishing village near the Fukushima Daiichi Nuclear Power Plant. Takahashi has been conducting field research on families involved in fishery in Soma City. Nobuyo Fujinaga is a veteran civic activist based in Osaka who has been passionately involved in environmental and anti-nuclear activism.

The Fukushima team's chapter shows how the current Japanese framework for damage compensation, as expensive as it may be, still does not address a broad range of significant loss and damage sustained by victims of the disaster. Some victims have not received any compensation at all due to their residence outside the mandatory evacuation zones.42 Others feel that other kinds of loss and damage not recognized within the current compensation scheme also ought to be compensated. These include the loss of ancestral homelands, social relationships, and normal daily life,43 as well as other kinds of damage and loss not readily visible or calculable in monetary terms.44

These limitations are, of course, not necessarily specific to nuclear compensation. Disaster damage compensation tends to create and deepen divisions among victims by introducing artificial boundaries of all kinds. It does not aim to compensate for every damage and loss sustained by those who see themselves as victims. It also tends to differentiate victims on the basis of residence, time spent in the area during the disaster, and other somewhat arbitrary criteria.45

As Suami points out, however, damage caused by a nuclear disaster is particularly deep, multidimensional, and potentially long-lasting. Nuclear damage also goes beyond the usual scope of damage compensation focused on certain categories of individual damage and loss because a nuclear accident deeply affects local communities and environmental settings. There are ongoing collective lawsuits aiming to overcome these limitations within Japan's current legal framework, but the Fukushima team's chapter indicates that damage compensation may not serve as an adequate framework for addressing all of these concerns.46 The Fukushima team suggests that social security, rather than damage compensation, may be a better model for responding to these simultaneously both highly individualized and deeply collective needs.47

The Fukushima team's chapter draws attention to the specific temporal dimensions of a nuclear accident and their implications for the damage compensation framework. Satsuki Takahashi suggests that a nuclear accident damage compensation scheme should not only compensate for what has been lost but also for continuing and ongoing losses in the present as well as into the future.48 Suami also points to types of damage that may not end in the near future. For example, the health effects of low-level radiation exposure are not well-known and anxiety about potential long-term effects is likely to continue for many years to come. Likewise, voluntary evacuees may face new challenges in their new locations and may encounter secondary damage.49

The second and third chapters of this report are written by two science and technology studies scholars specializing in nuclear issues: Mary Mitchell, who has studied legal cases involving Marshall Islanders exposed to radiation caused by nuclear weapons testing in the Pacific, and Sonja Schmid, who has written extensively on the Chernobyl disaster. What these chapters make clear is the fact that, at least on the surface, the three accidents—Three Mile Island, Chernobyl, and Fukushima—are not straightforwardly comparable. First, the three major accidents took place in three different specific situations—the US, the Soviet Union, and Japan, respectively—at three different historical junctures. Each accident has contributed to the revision of the associated country's regulatory and safety standards as well as the adjustment of compensation schemes, and each accident has led to the reevaluation, review, and in some cases, the amendment of existing international conventions. Yet, the Fukushima case shows that even large amounts of compensation do not fully address the loss and damage sustained by victims.

Second, the three accidents are also vastly different in terms of their respective gravity. Compared to the Chernobyl and Fukushima disasters, both of which have been rated by the IAEA as Level 7 major accidents, the Three Mile Island incident was relatively less severe and has been rated as a Level 5 accident by IAEA. In her chapter, however, Mitchell suggests that, precisely because of this difference, the Three Mile Island case offers a distinctive set of insights about “how the boundaries of nuclear compensation are drawn and contested when uncertainty abounds and causal linkages between incident and injuries are difficult to discern."50

Third, each accident took place in a distinctive legal and administrative framework. As Mitchell points out in her chapter, the three accidents have led to three different kinds of treatment of injury and compensation claims. Whereas administrative procedures have been developed for processing compensation for the Chernobyl and Fukushima disasters, compensation claims arising from the Three Mile Island accident were initially processed by private insurers of the power plant and later were addressed in “a series of long, arduous, costly, and ultimately unsuccessful legal disputes."51 Mitchell uses extensive archival records to show how these legal cases have been blocked largely due to difficulties in producing satisfactory scientific evidence linking bodily symptoms to the accident.

Mitchell's chapter importantly shows that prior to the Three Mile Island accident, the only claims made under the US Price-Anderson Act were claims related to injuries sustained by nuclear power plant employees and contractors. These claims were all processed by the plant's insurers. Until the Three Mile Island (TMI) accident, in other words, many issues surrounding nuclear compensation within the legal framework of the Price-Anderson Act were largely untested: “The TMI incident now forced courts to begin to interpret the Price-Anderson Act's untested provisions as a variety of claim types went into litigation—not least, residents’ claims of injury."52 The federal government conducted scientific investigations on local residents’ radiation exposure and concluded that their exposure was too low to cause any negative health effects. However, residents were skeptical about this conclusion and in fact began to exhibit some symptoms, and some developed cancer. Cancer can be caused by many factors, however, not only radiation exposure; it is difficult to prove the causal connections between symptoms and the accident, which created a challenge for the plaintiffs in the lawsuit related to the Three Mile Island accident. Mitchell shows how plaintiffs mobilized a broad range of experts in radiobiology, including experts on the Chernobyl disaster, to construct scientific evidence about bodily harm they experienced and changes in the local environment they observed following the Three Mile Island disaster. The court eventually ruled that most of the expert testimony be excluded. Instead, the court's decision relied largely on dose estimates conducted by federal agencies on the accident, which had failed to take residents’ observations, concerns, and views into account. This trial court's decision was in turn confirmed by the Third Circuit Court of Appeals in 2002. Given the long-term and unpredictable future effects of radiation exposure, as demonstrated in the cases of atomic bomb survivors in Hiroshima and Nagasaki, however, compensation issues surrounding the Three Mile Island accident may not be declared completely settled yet.

Mitchell notes that, in the Three Mile Island accident, the private insurers of the power plant paid out approximately 71 million dollars, well under the plant's mandatory insurance coverage of the time. The US President's Commission on Catastrophic Nuclear Accidents set up in the aftermath of the Chernobyl disaster submitted a report calling on Congress to reconsider the Price-Anderson Act and institute an administrative system for processing compensation claims that would meet the demand of a potentially larger-scale accident than the one at Three Mile Island. The proposal was not implemented. More importantly, Mitchell points out, the commission did not consult claimants or victims of the Three Mile Island accident before making recommendations.53 Mitchell suggests that “these suffering and at-risk communities should be brought to the table in a democratic, participatory, and anticipatory process—not after, but before the next disaster occurs."54

As Sonja Schmid explains in this chapter, at the time of the Chernobyl accident there was no legal framework for handling nuclear compensation in the Soviet Union. Instead, the compensation scheme for victims of the Chernobyl disaster was based on existing procedures for processing compensation and social benefits for war veterans, disabled persons, and others. Under this administrative process for processing compensation payouts, “privileges and compensations were determined according to the levels of radioactive contamination in the territories."55 Twelve different levels of entitlement and compensation were developed according to different radiation dose levels and locations of residence. However, this scheme ultimately failed due to the Soviet Union's economic crisis and eventual collapse. Schmid observes, “Many of the benefits, privileges, and compensation alike, might have been enough and more or less effective in a system with full employment, state-owned housing, state-run medical and education systems and a controlled currency."56 The history of the evolution of the compensation frameworks in Russia and other affected former Soviet countries shows how states have struggled with the definition of “affected” areas and persons. As medical anthropologist Adriana Petryna has powerfully shown, victims struggled to prove the harm they had sustained.57

The three chapters on the Fukushima, Three Mile Island and Chernobyl accidents, respectively, amply demonstrate the limitations of existing compensation schemes. Each accident poses fundamental questions about what constitutes victimhood, what counts as damage, and how to prove the causal linkage between radiation exposure and medical symptoms in the context of a nuclear power plant accident. The fourth chapter, authored by three legal scholars, Mary Mitchell, Annelise Riles, and Dai Yokomizo, addresses issues raised by several trans-border lawsuits concerning compensation claims related to the Fukushima disaster. These lawsuits include cases involving US military personnel who participated in Operation Tomodachi, a disaster response operation completed by US military forces immediately following Japan's triple disaster. The authors discuss how Fukushima was not the first nuclear disaster whose impacts went beyond the borders of a single country. The Chernobyl disaster significantly affected many parts of Europe. After the Chernobyl disaster, however, the Soviet Union did not provide compensation for any harm resulting from the accident outside Soviet territory. At that time, the Soviet Union was not a signatory to any of the existing international conventions governing nuclear compensation, and various affected European countries handled compensation claims mostly internally within each country's framework for dealing with environmental disaster.

Mitchell, Riles, and Yokomizo note Japan was not a signatory to any international conventions at the time of the Fukushima disaster either, and this has ironically created opportunities for cross-border lawsuits for victims. This is particularly ironic given that the Japanese government's initial hesitation to join the Convention on Supplementary Compensation for Nuclear Damage of 1997 (CSC) had much to do with the convention's impact on jurisdictional issues. The CSC gives jurisdiction to the country in which an accident occurs and prior to the Fukushima disaster, the Japanese government was reluctant to join because it would prevent Japanese victims of a nuclear accident in a neighboring country, such as China and Korea, from using the Japanese legal system to wage lawsuits against the operator of the troubled power plant.58 At that time, the Japanese government perhaps did not take seriously the possibility of facing a nuclear disaster in Japan and its transnational repercussions. Precisely because Japan was not a signatory to the CSC at the time of the Fukushima disaster, however, TEPCO and the Japanese government can be sued outside of Japan for damage stemming from the disaster, and several lawsuits have taken advantage of this situation.59

The cross-border lawsuits discussed by Mitchell, Riles, and Yokomizo challenge the current dominant framework for considering nuclear compensation. They tackle transnational legal issues likely to arise from a future major accident due to the pervasive lack of attention to cross-border issues as well as to the unevenness with which the international conventions govern nuclear compensation across national borders. The chapter offers legal strategies for pursuing compensation in cross-border contexts from the perspective of private international law or conflict of laws.

Keeping the Future in View

The disaster in Fukushima has certainly challenged the notion that nuclear energy is cheap. Given the negative health and environmental effects of uranium extraction in Africa and elsewhere, nuclear energy may not be as sustainable as it may seem. However, it is probably not realistic to envision a nuclear-free world in the near future. Given the distinctively long-range perspective nuclear energy demands due to issues such as spent fuel storage, reactor decommissioning, and disaster cleanup, nuclear energy expertise will inevitably be essential for years to come.

It is important to remember, however, that another accident will undoubtedly occur somewhere sometime in the future. More power plants are being built in China and other developing countries. Some of these countries are not signatories to any international conventions and their domestic compensation schemes and financial capabilities are not as robust as those in the US, Japan, and elsewhere in the developed world. More significantly, trans-border conflicts similar to those arising from the Fukushima disaster will arise if a major accident occurs in countries that are not party to any international conventions. More attention needs to be paid to the issue of nuclear compensation, as part of preparedness and response efforts, as well as to the prevention of future nuclear accidents.

All the chapters in this report stress the importance of careful attention to victims’ experiences with compensation schemes and lawsuits. Victims have never been part of the policy debate about the design of the domestic and international legal frameworks for nuclear compensation. From victims’ perspectives, neither a system relying heavily on litigations, such as the US framework, nor the ad-hoc administrative schemes for processing compensation claims developed for Chernobyl and Fukushima victims have proved effective, for different reasons. Importantly, the Fukushima case demonstrates the limitations of both systems. Compensation paid so far is large but not sufficient. It is not enough for those who have received it because it does not even begin to address the much broader range of types of damage and loss that these victims have actually experienced. Moreover, the current compensation scheme does not address the grievances of many others who did not reside in the mandatory evacuation zones. Collective lawsuits against TEPCO and the Japanese government have seen some initial successes, but they are likely to face an uphill battle as they are appealed to higher courts, just like the long and ultimately unsuccessful lawsuit related to the Three Mile Island accident in the US.

The key lesson from Three Mile Island, Chernobyl, and Fukushima is this: victims and their concerns about and experiences with compensation schemes have been consistently ignored by governments and energy policy experts. This conclusion calls for careful attention to the specificity of each victim's individual case and claim as well as the breadth, depth, and distinctive duration of the impacts of a nuclear accident. This does not necessarily mean that a unique solution needs to be found for each individual case or that a blanket solution needs to be developed to cover all kinds of damage and loss claim in perpetuity. Rather, it demands listening carefully to victims and incorporating their concerns into the design of a compensation scheme, especially one that reimagines compensation beyond monetary terms. What is at stake here are massive inequalities in power, knowledge, and access to resources, all of which are not only pressing moral issues, but also potential impediments to the production of scientific knowledge and effective public policies. Indeed, compensation is not simply an economic or financial issue; there are limitations to what money can do to redress damage or loss. Compensation is a moral issue that is intertwined with macrolevel public policy issues and microlevel personal issues.60 In this sense, compensation is ultimately a matter of hope to the extent that it may allow victims as well as their society to move on and create new future relations.61 In light of the public distrust in expertise, such efforts may ultimately reach well beyond the nuclear energy sector.

At the minimum, this report calls for the establishment of an inclusive and ongoing process for incorporating diverse perspectives—especially those of victims, in the broadest sense of the term—in the continuous readjustment of nuclear compensation schemes. This report suggests that this simple step has never been taken largely because policy makers, regulators, industry specialists, legal professionals, and even the broader public persist in learning about only disparate and technical issues from nuclear disasters.

Svetlana Alexievich remarks in Chernobyl Prayer, “Chernobyl is, above all, a catastrophe of time. The radionuclides strewn across our earth will live for 50,000, 100,000, 200,000 years. And longer. From the perspective of human life, they are eternal."62 She defines her book, a collage of stories about Chernobyl, as a chronicle of the future: “What lingers most in my memory of Chernobyl is life afterwards: the possessions without owners, the landscapes without people. The roads going nowhere, the cables leading nowhere. You find yourself wondering just what this is: the past or the future. It sometimes felt to me as if I was recording the future."63 What this report offers is nothing short of a glimpse of the ongoing struggles to keep this futurity in view while seeking a better way to prepare ourselves for and manage a future crisis. The lessons from Fukushima lie precisely in these struggles.

  1. ↩︎

  2. ↩︎

  3. The impacts of the Fukushima disaster on Japan’s nuclear policy-making processes have not been straightforward. See ↩︎

  4. ↩︎

  5. ↩︎

  6. See, e.g., ; and for in-depth analyses of compensation issues related to relocation for the construction of a hydropower dam in Laos and the “Deepwater Horizon” oil spill case. ↩︎

  7. See also ↩︎

  8. Tokyo Electric Power Company, “Records of Applications and Payouts for Compensation of Nuclear Damage,” February 5, 2021, ↩︎

  9. As of July 2019, BP had paid approximately 12 billion dollars to over 130,000 unique claimants (Matt Sledge, “A Near-decade after BP Oil Spill, Now-public Payout Claims Run Gamut—Including an Ex-NBA Star,” New Orleans Advocate, July 2, 2019). It is important to note that the total cost of the oil spill for BP has reached approximately 69 billion dollars and includes the costs of cleanup and environmental restoration and civil settlements with federal, state, and local governments (See Marck Schleifstein, “BP and Its Partners Have Spent $71 Billion over 10 Years on Deepwater Horizon Diaster,” New Orleans Advocate, April 18, 2020. Union Carbide Corporation was ordered by the Supreme Court of India in February 1989 to pay 470 million dollars for the damage caused by the massive gas leak at Bhopal (See Sanjoy Hazarika, “Bhopal Payments by Union Carbide Set at 470 Million Dollars,” New York Times, February 15, 1989). ↩︎

  10. Nihon Bengoshi Rengokai (Japan Federation of Bar Associations), “Bengoshi hakusho 2019-nen ban” (Attorney white paper 2019), pp. 140-141, ↩︎

  11. See, for example, ↩︎

  12. Significantly, India's Civil Liability for Nuclear Damage Act, 2010, includes a provision for manufacturers’ liability. See Mohit Abraham's important discussion of India's distinctive approach to issues of nuclear damage compensation (). ↩︎

  13. See also Mitchell, Riles, and Yokomizo, this report, Chapter 4. ↩︎

  14. . See also Mitchell, this report, Chapter 2. ↩︎

  15. ; Mitchell, this report, Chapter 2; and Mitchell, Riles, and Yokomizo, this report, Chapter 4. ↩︎

  16. Mitchell, this report, Chapter 2; Mitchell, Riles, and Yokomizo, this report, Chapter 4. ↩︎

  17. ↩︎

  18. ↩︎

  19. ↩︎

  20. ↩︎

  21. ↩︎

  22. ↩︎

  23. See Mitchell, this report, Chapter 2. ↩︎

  24. ↩︎

  25. ↩︎

  26. ↩︎

  27. Act on Nuclear Damage Compensation, Act No. 147, Section 16, 1961. ↩︎

  28. ↩︎

  29. ↩︎

  30. Act on Nuclear Damage Compensation, Act No. 147, Section 3, 1961. See Endo 2013, 153-162. ↩︎

  31. ↩︎

  32. ↩︎

  33. See, for example, ↩︎

  34. See, for example, ↩︎

  35. ↩︎

  36. ↩︎

  37. See Mitchell, Riles, and Yokomizo, this report, Chapter 4. ↩︎

  38. . See also ↩︎

  39. ↩︎

  40. See also ↩︎

  41. See also ↩︎

  42. See Ashina, this report, Chapter 1, Section III. ↩︎

  43. See Ashina, this report, Chapter 1, Section II; Suami, this report, Chapter 1, Section III. ↩︎

  44. See Fujinaga, this report, Chapter 1, Section III. ↩︎

  45. See Suami, this report, Chapter 1, Section III. ↩︎

  46. Suami, this report, Chapter 1, Section III. ↩︎

  47. Suami, Ashina and Takahashi, this report,Chapter 1, Section VII. ↩︎

  48. See Takahashi, this report, Chapter 1, Section IV. ↩︎

  49. Suami, this report, Chapter 1, Section V. ↩︎

  50. Mitchell, this report, Chapter 2. ↩︎

  51. Mitchell, this report, Chapter 2. ↩︎

  52. Mitchell, this report, Chapter 2. ↩︎

  53. Mitchell, this report, Chapter 2. ↩︎

  54. Mitchell, this report, Chapter 2. ↩︎

  55. Schmid, this report, Chapter 3. ↩︎

  56. Schmid, this report, Chapter 3. ↩︎

  57. ↩︎

  58. ↩︎

  59. Mitchell, Riles, and Yokomizo, this report, Chapter 4. ↩︎

  60. ↩︎

  61. ↩︎

  62. ↩︎

  63. ↩︎


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