On November 19, 2018, twelve residents of the Japanese city of Kobe filed an administrative action against the government seeking more ambitious action on climate change. The plaintiffs asked the Osaka District Court to compel the government to cancel the notice of finalization of an environmental assessment of two new coal-fired units, which the plaintiffs allege would emit about 7 million tons of carbon dioxide per year. The plaintiffs also seek an order finding that the government has unlawfully failed to establish regulatory standards consistent with the Paris Agreement. On March 15, 2021, the Osaka District Court rejected the plaintiffs’ request to cancel the Notice of Finalization issued by the Minister of Economy, Trade and Industry, concerning the construction plan of the new coal-fired Units based on two reasons. Firstly, the Court ruled that the plaintiffs lacked standing since there was a general rather individual public interest in the potential health damages caused by global warming. Secondly, the Court determined that the Notice of Finalization was not illegal as the decision of the Minister of Economy, Trade and Industry was neither deviation nor abuse of discretionary power. On March 26, 2021, the citizens filed an appeal. In the Statement of Appeal, the Plaintiffs argued that the emission of GHG can be a violation of human rights of individuals as climate change damages a person’s life, body, and property. Moreover, they claim that the denial of standing is a violation of their right of access to the courts. Further, they demand the court to revisit the appropriateness of the environmental impact assessment and the Notice of Finalization. On April 26, 2022, the Osaka High Court upheld the judgment by the Osaka District Court rejecting the request of the appellant’s to revoke the Notice of Finalization. In this judgment, the Osaka High Court discussed whether the appellants had standing under administrative law and whether the Notice of Finalization was illegal. Regarding the first point of the dispute, the court stated that there must a legally protected individual interest to have standing under administrative law. While the court recognized the standing of the appellants in relation to air pollution, the court ruled that the interest of the appellants do not include climate damage and that CO2 emissions are not recognized as a legally protected interest in the current society. The court further states that this interest should be pursued in the policy-making process as a general public interest. However, the court does not deny the possibility of a future change in this interpretation. If there is a change in the social situation or understanding, the interest to not incur damage through climate change and the CO2 emissions may be recognized as a legally protected individual interest. Regarding the second point, the legality of the Notice of Finalization, the court was not able to determine its legality based on the CO2 emissions as this was a policy issue. Moreover, concerning the lack of consideration of PM 2.5 emissions and concerns related to the emissions of other pollutants, the court stated that there was no deviation nor abuse of the discretionary power. Thus, the Notice of Finalization was legal. The citizens expressed their intent to further bring the case to the Supreme Court. On May 6, 2022, the citizens filed a final appeal and asked the supreme court to reverse the judgment given on April 26, 2022.

Key environmental legal questions:

Whether the Notice of Finalization by the Minister of Economy, Trade and Industry allowing the construction and subsequent operation of new coal-fired power plants is legal based on the greenhouse gas emissions.