Fukushima Evacuation Lawsuit; the court judgement (abridged)

The Judgment

The Key Conclusion

The petition is rejected.

The basic facts and reasons

I. Purposes of the petition

1. The obligator should not conduct educational activities for the obligees in school facilities located on points in areas where the average values of the air dose measurement, as shown in the attached “List of Environmental Radiation Monitoring Results”, equal or exceed 0.2 micro-Sv per hour at 50 cm or 1 m in height.

2. The obligator must conduct educational activities for the obligees in school facilities located on points outside areas where the average air dose measurement, as shown in the attached “List of Environmental Radiation Monitoring”, equal or exceed 0.2 micro-Sv per hour at 50 cm or 1 m in height.

II. The factual background

In this petition, obligees inhabiting in Kohriyama City, Fukushima Prefecture, and attending elementary and junior high schools claim that their human lives, bodies and health are seriously threatened in such a dangerous situation as cumulative values of radiation doses at the schools they attend exceed the annual maximum permissive limit of 1 mSv per year, due to the nuclear accident at TEPCO’s Fukushima Daiichi nuclear power plant caused by the Touhoku district offshore Pacific Ocean earthquake, involving a large-scale leakage of radioactive materials, and demand the obligator to suspend educational activities in such dangerous areas and to conduct those activities outside such areas, based on the personal human rights and the right to claim to fulfill the duty to considerate safety.  

III. Summary of reasons for the judgment

Mass evacuation of pupils and students, who are sensitive to radiation, may become an option from the perspective of a policy standpoint. But at the same time, considering that the obligator is also obligated to continue to conduct educational activities as far as pupils and students other than obligees also inhabit in the city, due to the nature of such activities it should be difficult to discriminate between such ones for the obligees and those for others in order to suspend the former alone. Considering it is acknowledged that the purpose of the obligees’ petition is, as a matter of practice, the overall suspension of educational activities at aforementioned elementary and junior high schools, including those for other pupils and students, it should be needed to strictly investigate requirements for fulfilling rights to be conserved.

Now, considering decontamination activities promoted by the obligator and results of radiation monitoring among other factors, it is not acknowledged that there are emergent and concrete threats to human lives and bodies of the obligees dangerous enough to require overall suspension of educational activities at elementary and junior high schools they attend without questioning the intentions of the rest of pupils and students, who also inhabit in Kohriyama City located outside the caution and evacuation-planned zones and attend the same schools as the obligees do.

Moreover, such suspension as the obligees require is not only measure for avoiding hazards to them, as they can adopt alternative one such as commuting to extramural schools, for instance.

Therefore, the rights to be preserved, claimed in the petition, are not acknowledged.

IV. The court judgment

(Snip)

(4) - - - -
According to the obligees’ petition in this issue, and also focusing our attention to the relation between it and many other pupils and students who themselves are not concerned here, the former must be said to be requiring overall suspension of the implementation of educational activities, of which the latter also actually receive the full benefit, regardless of their willingness. In such a case, it is adequate to consider that in order to acknowledge the petition, strict requirements are needed; i.e., there should be an emergent threat of damaging human life and body of each obligee; it should be evident that unrecoverable consequential injury are to be caused by such damage; and moreover, no proper alternative option is found as a measure to avoid such injury, weighing disadvantages and burdens for obligees, obligator and other stakeholders. - - - -

(5) In considering whether concrete rights to be preserved for the obligees should be acknowledged or not, it is noted that the existing national law adopts 1 mSv per year basis as the public dose limit in accordance with 2007 recommendations of ICRP, and the obligees, assuming such a regulatory, require measures including the suspension of the implementation of educational activities in areas where the air radiation doses are surely expected to exceed 1 mSv per year (0.2 micro-Sv per hour).

(6) However, fundamentally speaking, the impact on the probability of late-onset disorders such as cancer when receiving a radiation dose less than 100 mSv has not been empirically confirmed. Therefore, the dose limit in the radiation exposure scale-range under 100 mSv is set in accordance with assumption that some stochastic effects may occur even in the lower radiation exposure range in proportion to its level. In such a case, even though causality is unclear from a scientific perspective, and rather because it is unclear, standards are set in consideration of possible safety from a policy standpoint, and studies in radiation protection also adopt such an idea that exposure exceeding the amount of radiation present in nature should be as small as possible. In this sense, the 1 mSv standard of ICRP also should not be taken as the absolute one. Therefore, while on the one hand, as shown in the April 20, 2011 notification issued by the Ministry of Education, there is an approach of mitigating the annual limit to 1 - 20 mSv, on the other hand, critics claim that 1 mSv per year standard of the ICRP is insufficient in terms of safety, because it does not take the matters of internal exposures into account; and the 2010 recommendations of the European Committee on Radiation Risk (ECRR) setting 0.1 mSv as the standard for the annual public dose limit is in accordance with such the acknowledged fact.

(7) Therefore, the mass evacuation of more radiation sensitive pupils and students, which the obligees claim, may be one of options for the policy in order to ensure safety of them as far as there exist risks of radiation exposures larger than ordinal one, not only in those areas where annual air radiation doses exceed 1 mSv, but also in other areas where they are smaller than that value.   

(8) However, such an option is a different matter from questioning whether there is such an unambiguous legal right for requiring the suspension as the obligees claim. For the latter investigation, understanding it is needed to consider whether there is the right to be preserved in accordance with requirements mentioned above in the paragraph (4), it can not be said that there is sufficient prime facie showing to prove fulfillment of such requirements.

A. First of all, such risks of damages on human lives and bodies caused by exposures as oboligees claim depend on the possibilities of the infringements on human lives and bodies which long-term low-dose exposures may stochastically result in. Indeed, such infringements on human lives and bodies can be said to be consequential damages hard to recover, but damage risks due to such infringements are mere undefined facts which depend on uncertain scales and time spans of the future exposures.

B. And, according to the above mentioned certified fact, it is possible to recognize that radiation doses at and around the primary and junior high schools the obligees attend have been reduced at the points after decontamination activities such as topsoil removal works among others conducted by the obligator. And also, so far as pupils and students do not stay still for 24 hours a day at the specific points where radiation doses are measured, but move around and conduct various indoor and outdoor activities, it can be acknowledged that the more realistic data at school facilities should be results of simplified integrating dosimeter monitoring conducted by staff members of those school facilities, and any of such measuring results at primary and junior high schools the obligees attend shows that radiation dose is lower than 0.2 micro-Sv per hour.     

C. The obligees insist that, so far as monitoring conducted by the obligator was done as measurements conducted by the school staff members, who in fact usually stay in school buildings even while pupils and students stay on playgrounds, such measured values can not be trusted. But, given that since May, 2011, the obligator has been restricting outdoor activities such as physical education within 1 hour a day and sports club activities within 2 hours at primary and junior high schools in Kohriyama City, and regulating the former to be done indoor as far as possible and prohibiting the latter in rainy or windy days, it is hard to recognize that the radiation exposure doses of the obligees are significantly different from the above mentioned monitoring results. And also, measurement results in the TV show (A65 evidence) must be said to lack the prerequisite for comparison, given that they were measured under different conditions in Nihonmatsu City. And again, results measured by obligees’ parents (A63) are not sufficient to affect the reliability of the above mentioned monitoring results, given that differences in points and methods of measurements and aggregation methods inevitably lead to values different from above mentioned ones measured by the school staff.

E. Therefore, considering that it is expected that the advance in decontamination is to reduce the amount of future radiation, and recognizing the actual extent of radiation exposure of obligees at primary and junior high schools suggested from the above mentioned monitoring results, it is not fully acknowledged that there exist imminent dangers to their human lives and bodies. Concerning about risks of internal exposures, the obligees claim that they are exposed to such risks from inhalation of radioactive noble gasses and ingestion of soils and vegetables contaminated with radioactive materials, and have submitted written opinions (A49 evidence, A72, A73, A75, A76, A81, A82, etc.) describing dangers of contracting heart disease and cancer among others from internal exposures. Though risks of internal exposures noted in these opinions are not trivial, the concrete facts of presence or absence and extent of such internal exposure of each individual of the obligees are not yet clarified. Besides, given that the internal exposure is a long-term exposure to the radioactive materials which entered into a human body, the specific causation between “the suspension of educational activities conducted by the obligator for the obligees” at “school facilities located on the points where average measurement values of air dose rate at 50 cm or 1 m in height exceed 0.2 micro-Sv per hour” and prevention or elimination of the risks of internal exposures for the obligees is also not yet clarified. Therefore, these written opinions are not sufficient to directly confirm the existence of obligees’ rights to be preserved, concerning the provisional ruling requested in this issue. Though obligees claim that radiation dose accumulated since the occurrence of the Fukushima nuclear accident also should be considered, the actual past exposures can not be prevented in their nature with this petition. And also, given that the probability of receiving late injuries in radiation doses less than 100 mSv is not empirically verified, and that the annual dose limit of 20 mSv was set as the provisional guideline in the April 20 notification issued by the Ministry of Education, even though the annual radiation exposures are expected to exceed 1 mSv in total together with the past ones, it is not sufficiently acknowledged that such exposures directly cause emergent dangers to the human lives and bodies. Therefore, all told, for each individual of obligees, there is no prima-facie evidence sufficient enough to acknowledge the existence of dangers concrete and emergent enough to require the overall suspension of entire educational activities without questioning notions of other pupils and students who inhabit in Kohriyama City located outside caution and evacuation planned zones, and attend the same primary and junior high schools together with obligees.

(Translated by T. Inoue)