Nuclear Power Plants and Terror Attacks in Japan

Abstract

The operation of several Japanese nuclear power plants has been halted because the Nuclear Regulatory Committee (NRC) reported that these nuclear power plants are not sufficiently prepared for potential terror attacks. It is unclear how the Japanese judiciary exercises judicial review for this NRC decision regarding terror attack protection measures. Japanese courts previously avoided the constitutionality of defense and peace statutes by using political questions. The attitude of the Japanese judiciary toward national defense is symbolic in several cases for Article 9, the pacifism provision of the Japanese constitution. Japanese administrative agencies are authorized to exercise discretion in the scope of power that is vested in them by the statutes passed in the parliament, or Diet. Under the Administrative Case Litigation Act (ACLA), which was revised in 2004, Japanese courts can review administrative discretion according to several principles such as fact-finding, purpose, timing, equal principles, constitutional rights infringement, and unconstitutional motives. The Judiciary has reviewed administrative agencies’ decision under under ACLA. Under ACLA, Japanese courts maintain arbitrary and capricious administrative discretion but not the political validity and policy judgement capability of administrative agencies. Judiciary defers to administrative agency decisions for its expertise. Citizens may take action toward administrative agencies regarding its validity by the Administrative Appeal Act (AAA). The AAA provides an avenue that is simpler than ACLA and yields a more rapid response, but it is not as fair as the ACLA because agencies themselves conduct an internal review on the validity of its decisions. In the famous Ikata nuclear power plant case of 1992, the Japanese Supreme Court deferred to the administrative agency decision for its expertise but did not use the term “discretion.” This may have been because nuclear power plants are related to Japanese energy policy, thus affecting Japan as a whole. This paper argues that in general, the judiciary does not thoroughly review public records and the reasoning behind administrative decisions but may identify unconstitutional motives. The Japanese court has not yet reviewed the NRC decision of halting nuclear power plant operation due to possible terror attacks. The statute for terror attacks was passed soon after the Great East Japan Earthquake in 2011. Terror attacks may provide an avenue for the Japanese judiciary to avoid conducting a judicial review of the administrative agency’s decision. It is unclear whether the Japanese judiciary will carefully examine this issue or defer to the NRC as terrorist protection overlaps with the field of national defense, which is stipulated in Article 9. This paper argues that national defense and nuclear power plant safety in the event of natural disasters both differ and overlap. Japanese administrative law scholars must analyze the expertise of the administrative agency in giving deference to the Japanese judiciary.