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Reflections on the TEPCO Trial: Prosecution and Acquittal After Japan’S Nuclear Meltdown

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Reflections on the TEPCO Trial: Prosecution and Acquittal After Japan’S Nuclear Meltdown Volume 18 | Issue 2 | Number 1 | Article ID 5336 | Jan 15, 2020 The Asia-Pacific Journal | Japan Focus Reflections on the TEPCO Trial: Prosecution and Acquittal after Japan’s Nuclear Meltdown David T. Johnson, Hiroshi Fukurai, Mari Hirayama Abstract: This article focuses on the criminal Headline of “Important Report from justice consequences of the nuclear meltdown TEPCO” (April 24, 2012) at Fukushima that was precipitated by the earthquake and tsunami of March 11, 2011. Through a process of “mandatory prosecution” “Who could they be kidding?... The initiated by Japan’s unique Prosecution Review Sanriku coast [in the Tohoku region of Commissions, three executives of the Tokyo Japan] is famously like California: big Electric Power Company were charged with earthquakes hit it often, hit it regularly, criminal negligence in 2015-2016. They were and hit it with massive tsunami.” acquitted at trial in 2019 when the Tokyo District Court concluded there was insufficient Harvard University Professor of Law J. evidence to convict. Following this verdict, Mark Ramseyer (2012) Japanese prosecutors essentially said “we told you so – these cases should not have been prosecuted.” But we argue that a courtroom On September 19, 2019, a panel of three loss does not mean that the case should never professional judges in the Tokyo District Court have been brought, for the TEPCO trial and the acquitted three former executives of the Tokyo criminal process that preceded it performed Electric Power Company (TEPCO). The some welcome functions. Most notably, this defendants were former chairman Katsumata criminal case revealed many facts that were Tsunehisa (79), and former vice presidents previously unknown, concealed, or denied, and Takekuro Ichiro (73) and Muto Sakae (69), who it clarified the truth about the Fukushima shared responsibility for the company’s nuclear meltdown by exposing some of TEPCO’s claims energy sector. They had been charged with as nonsense. At the same time, this case study criminal negligence1 for failing to prevent the illustrates the limits of the criminal sanction meltdown of the Fukushima Daiichi nuclear and the difficulty of controlling corporate crime in the modern world. power plant, which was precipitated by the earthquake and tsunami of March 11, 2011, Key Words: Fukushima, criminal negligence, which killed more than 18,000 people and white-collar crime, Prosecution Reviewforced 400,000 to evacuate their homes in Commissions, mandatory prosecution, Japanese order to escape the nuclear fallout (Hasegawa, 2 criminal justice 2013). The 3/11 earthquake was the most powerful ever recorded in Japan, and it was the fourth most powerful earthquake in the world since “The scale of the tsunami far exceeded all modern record keeping started in 1900. The previously held expectations and tsunami it precipitated reached heights up to knowledge.” 40 meters (130 feet), and in some places the 1 18 | 2 | 1 APJ | JF colossal swell traveled at 700 kmh (435 mph) tell). In civil law, about 30 collective actions and surged 10 kilometers (6 miles) inland. The have been filed against TEPCO and government only nuclear accident as serious as theofficials, in addition to some 400 individual meltdowns at the Fukushima plant was the lawsuits filed nationwide by the victims of the 1986 disaster at Chernobyl in Ukraine. But Fukushima meltdown (Jobin, 2019, p.74). As of while the Fukushima triple-disaster was severe, September 2019, eight of the collective actions it was not precipitated by a low-probability had resulted in judgments – and all found event. The 3/11 earthquake was a “high- TEPCO liable (Dooley, Yamamitsu, and Inoue, probability event,” for massive earthquakes and 2019).3 tsunamis have been assaulting the northeastern coast of Japan for centuries – in And then there is the legal process through 869, 1611, 1793, 1896, and 1933 (Ramseyer, which criminal sanctions can be imposed. 2012). The size of the tsunami in 2011 was Significant efforts were made to respond to the almost the same as the one in 1933. anti-social behavior of TEPCO executives and government officials by imposing punishment There have been many legal and political on those believed guilty of violating Japanese reactions to the meltdowns in Fukushima criminal law. The central question in this essay (Samuels, 2013; Aldrich, 2019). Japan stopped is this: what was the criminal process good for using nuclear power for much of 2011 and in the TEPCO case? We argue that, despite the 2012, and its usage has remained low since acquittal of the TEPCO defendants, Japan’s then, though the administration of Prime criminal process did some good in this case, Minister Abe Shinzo seems determined to and that when it failed it did so in ways that are restart many of the country’s reactors. More common in other systems of criminal justice. broadly, several countries, including Germany, The latter claim will be no consolation to the Italy, Belgium, and Taiwan, suspended or victims and survivors of 3/11, but it does reflect ended their use of nuclear power, and China how hard it is to hold corporations and their suspended its plan to expand its use of nuclear executives criminally accountable for the harms power for half a year. New nuclear safety laws that they cause, not only in Japan but in all were also established in Japan, China, and countries. While we focus on the limits of South Korea, though in most of East Asia, criminal law and criminal procedure in a case major changes in the field of nuclear power that may be the biggest crime in postwar seem unlikely because of “nuclear power’s Japanese history, our point applies more sunk-cost structure and embeddedness in broadly, for in many societies white-collar national energy plans” (Fraser and Aldrich, crime is “the greatest crime problem of our 2019, p.58). As for administrative law, Japan’s age” (Coleman, 2002, p. xi).4 lax regulatory system (Kingston, 2012) was reformed after 3/11, with the Nuclear and Our essay proceeds in three parts. Part one Industrial Safety Agency (NISA) and the describes the complicated process of criminal Nuclear Safety Commission (NSC) replaced by prosecution through which charges were filed the Nuclear Regulation Authority (NRA). against the three TEPCO executives. This part Government supervision of the nuclear industry of our story involves a uniquely Japanese was also transferred from the ministryinstitution called the Prosecution Review responsible for promoting it (the Ministry of Commission (kensatsu shinsakai), which was Economy, Trade, & Industry, or METI) to the reformed in 2009 to enable panels of 11 Ministry of Environment (MOE), whichmight citizens to override the non-charge decisions of result in more emphasis on safety and less on professional prosecutors. Part two analyzes the profit and the production of power (time will reasoning of the Tokyo District Court and 2 18 | 2 | 1 APJ | JF describes some of the reactions to its decision the mass media. to acquit the executives. Many Japanese were harshly critical of that decision, but Japanese *There were inexplicably different design prosecutors essentially said “we told you so” conditions in the nuclear power plants after the Court concluded there was located near each other in northeastern insufficient evidence to convict. In our view, Japan. The Fukushima plant design was the verdicts in this case are troubling but especially deficient. unsurprising, for impunity is common both in white-collar crime cases and in cases of *There were major methodological “mandatory prosecution” (kyosei kiso) initiated mistakes in the hazard analysis that by Japan’s PRCs. Part three of this article TEPCO conducted to calculate the concludes by suggesting some lessons to learn maximum possible tsunami at the from the TEPCO trial. Foremost among them is Fukushima No.1 Nuclear Power Plant. how difficult it is for criminal law and the institutions of criminal justice to control the *In the years preceding 3/11, TEPCO made conduct of corporations and their agents. false reports during government inspections of its nuclear plants more than 200 times, and it concealed numerous I. Prosecution plant safety incidents as well. A Timeline summarizing the main events *There were major weaknesses in the leading to and resulting from the triple disaster regulation of Japan’s nuclear energy of 3/11 can be found in the Appendix to this industry.7 article. The timeline shows that the earthquake and tsunami of March 11, 2011 resembled One question concerns what conduct leading to large natural disasters that had occurred many the Fukushima meltdown can be considered times before on the northeastern coast of criminal. Although the answer is contested, we Japan. In this sense, the chain of events leading believe many people who should have been to 3/11 could be traced back centuries.5 But our charged and convicted were not held criminally summary focuses on a cascade of executive, accountable for the enormous harms that they engineering, and regulatory failures that helped cause. In June 2012, 1324 residents of occurred in the few decades preceding the Fukushima filed a criminal complaint with the Fukushima disaster (Synolakis and Kanoglu, Fukushima District Prosecutors Office against 2015). The Union of Concerned Scientists has 33 TEPCO executives and government officials concluded that “there is plenty of blame to go (Yamaguchi and Muto, 2012). Fifteen months around” for the Fukushima meltdownlater, prosecutors in Tokyo announced that (Lochbaum et al, 2014, p.245), and some other they would not charge any TEPCO executives analysts share this view (Jones, 2019).6 Among because, in their view, there was little chance the key proximate causes are the following: of conviction. Over the next few years, two *There was too little attention paid to different Prosecution Review Commissions evidence of large tsunamis that had would review and reverse this non-charge assaulted the northeastern coast of Japan decision and institute mandatory prosecution in previous decades and centuries.
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