On September 27, 2017, 124 citizens in Sendai instituted a lawsuit against the Sendai Power Station seeking an injunction to the operation of the power plant. The plaintiffs argued that the operation of the Sendai Power Station violated (i) their personal rights to life, health, and bodily integrity (Jinkaku-ken) due to the health damage caused by the emission of environmental pollutants, (ii) their personal rights to life, health, and bodily integrity due to climate change, and (iii) the right to maintain biodiversity due to the emission of hazardous substances. Firstly, the plaintiffs argued that the emissions of pollutants, such as SOx and NOx, caused significant health damage by increasing the risks of various illnesses. Secondly, the plaintiffs argued that their personal rights were violated as greenhouse gas (GHG) emissions would worsen climate change, which causes extreme events, such as heat waves and heavy rains. To support this argument, they stated that the current use of coal-fired power plants was incompatible with the GHG emissions reduction targets in Japan and was also an obstacle to the achievement of the goals of the Paris Agreement. Thirdly, the plaintiffs claimed that environmental rights, including the right to maintain biodiversity, should be recognized based on Article 13 of the Constitution. Those three arguments are later modified to the tort claims based on the right to a peaceful life, which they claimed was violated by environmental pollution, personal rights concerning life and bodily integrity, which they claimed were violated by climate change, and the right to maintain biodiversity. During the proceedings, the right to maintain biodiversity was excluded from the points of dispute by the parties based on the Court’s determination that the right to maintain biodiversity is not recognized under Japanese civil law. Similarly, the plaintiffs indicated in the 10th preparatory document that they withdrew their claim based on the personal rights to life and bodily integrity, and thus, the second argument related to climate change was removed from the points of dispute. On October 28, 2020, the Sendai District Court delivered a judgment, which solely discussed the right to a peaceful life focusing on environmental pollution. The Court rejected the plaintiffs’ claim by saying that neither the nature nor the level of environmental pollution was serious and that the evidence provided by the plaintiffs lacked objectivity and credibility. The court did not rule on GHG emissions because they were part of the second argument, which were modified before the ruling. The Court further mentioned that the business operator had social accountability to do its best to relieve the citizens’ concerns about environmental pollution. On December 22, 2020, one citizen filed an appeal. In the statement of appeal, the appellant claimed that the district court has made 5 errors. Firstly, he claimed that the court misinterpreted the initial complaint by equating the mental distress with the threat to life and bodily integrity, which was claimed by the plaintiffs. Secondly, he claimed that the court had misunderstood the scientific concepts and terms and thus failed to recognize the risks based on the scientific evidence. Thirdly, he claimed that the court should still have considered the issues of global warming and GHG emissions either as factors to counteract the public necessity of the power plant or as aggravating factors of the tort even if the violation of the plaintiffs’ rights by global warming was not discussed since the CO2 emission by the power plant was against the generally accepted idea in the modern society and national carbon neutral policies. Fourthly, he claimed that the court misinterpreted the expert’s opinion concerning the concentration of PM 2.5 and thus failed to recognize the health risks. Lastly, he claimed that the court ignored the precedents and academic theories related to personal rights and air pollution. He argued that there was no public necessity for a new power plant and the protection of personal rights should be prioritized. On April 27, 2021, Sendai High Court issued a judgment on the appeal. The parties did not dispute that the power plant could cause the emission of air pollutants. Thus, the issue discussed was whether the threat of damage to the appellant’s life and bodily integrity by the health impact due to the exposure to the air pollutants could be recognized as a violation of personal rights (either the physical rights or the right to a peaceful life) leading to the illegality of the operation of the power plant. The court ruled that while it could not deny that there was abstract danger, there was no sufficient evidence to recognize concrete danger to the appellant’s health. The amounts of emissions of PM 2.5 and NOx are within the normal range and the amounts of other pollutants, including mercury, were all lower than the environmental standards. The court believes that there is no indication that air pollution has worsened after the power plant started operating. As for the public necessity, the presence of surplus at one moment does not mean that there was no public necessity for the power plant since power demand and supply are easily influenced by various circumstances. Moreover, considering the current energy policy, usability and public nature of the power plant concerned cannot be denied while there is discussion and governmental policies to prevent global warming, such as ‘2050 Carbon-Neutral’. Further, the court adds that no concrete danger to global warming nor biodiversity is recognizable. The court rejected the appeal and supported the first instance judgment. The court cannot find concrete danger, which exceeds the socially acceptable upper limits, to health when considering the nature and level of damage, the social usability, public nature, and preventive measures.

Key environmental legal questions:

Whether the pollution and GHG emissions from the operation of the Sendai Power Station violates the citizens’ right to a peaceful life.