I. Introduction

Regulatory change in Japan is often considered to be the result of inter-play between the judiciary and the administration. As Frank Upham and other scholars have observed, where public attention has been focused on a given legal area, and a sufficient number of successful civil suits have resulted in the recognition of an array of legal remedies beyond those considered by previous legislation, relevant administrative agencies seek to promote new legislation which places the area within administrative jurisdiction, and process of change is slowed and conservatized through negotiations between the relevant ministries and the various interest groups involved.¹

This tug-of-war regulatory process is evident in many areas of Japanese law, but is perhaps most clearly demonstrated in the area of environmental law. A coherent environmental regulation and protection system in Japan was only instituted in the early seventies in the wake of the so-called "Big Four" pollution cases. These large-scale civil damage suits broke new ground in the interpretation of polluters liability, and reinvented strict Japanese tort law requirements, most notably those for proof of causation and damages, to make them more adaptable to the uncertainties of environmental litigation.² The administrative response to the Big Four cases was a series of environmental legislation designed to place both pollution prevention and pollution damage compensation under administrative control.³

An important piece of this first body of environmental legislation was the Pollution Related Health Damage Compensation Law (hereinafter "the Law"). This law, a clear response to the Big Four cases, was designed to provide, through administrative determination, more readily available compensation to victims of pollution-related diseases by allowing patients to skirt the rigors of legal causation required to obtain compensation in court.

This was to be accomplished through the establishment of administrative disease recognition standards based on medical, clinical, and epidemiological data regarding the connection between types of pollution and pollution-related diseases. Patients meeting these standards would be considered to be suffering from pollution-related diseases, and would be awarded compensation.

However, since its establishment, this administrative system has only succeeded in provoking, rather than curtailing, large-scale environmental litigation. Patients who failed to meet the patient recognition standards nonetheless felt themselves victims of pollution-related diseases. Patients who had in fact been compensated by the system felt the standards failed to consider all the causes of their injuries, and the compensation obtained inadequate. Most importantly, the standards themselves shifted in response to political exigencies and interest group pressure on relevant administrative agencies. As these standards were set by informal administrative notice (tsuchi), direct legal challenge to their alteration was effectively impossible. As a result, non-recognized and dissatisfied patients seeking to challenge recognition standards have returned to the courts to push for more lenient standards, and to seek other avenues for obtaining compensation.

This paper seeks to examine litigation occurring in response to two important changes in administrative standards, which occurred in 1977-78: 1) the alteration of patient recognition standards for Minamata disease, and 2) the relaxation of the ambient standard for nitrous oxide emissions. On the one hand, plaintiffs, largely unrecognized patients, initially challenged the change in the Minamata standard with direct attacks on the administrative compensation system, but have since abandoned this strategy for tort theories which skirt the compensation system entirely. On the other hand, the plaintiffs groups of recognized patients seeking to challenge the change in the nitrous oxide safety standard have simply sought to expand the designated causes of their illnesses and increase their amount of compensation by seeking judicial confirmation of liability already acknowledged by the administrative system.

While the strategies used, and the motives for seeking compensation, differ, plaintiffs in both of these groups seek to affect through judicial decision, substantive changes in administrative determinations. In effect, the plaintiffs in these cases seek to establish judicial precedent which, like the Big Four cases, will provoke administrative recognition of new remedies. In short, they seek once again to use the courts as a lever to force legislative amendment, accelerating the ongoing struggle between the administration and the courts to respond to pollution-related health damage in Japan.

II. The Problem

The necessity of taking more circuitous paths to alter administrative standards is a direct result of the nature of Japanese administrative law. While informal administrative determinations in Japan often have the effect of law, there is no meaningful mechanism to challenge such determinations or the process by which they are made. Although there is an Administrative Case Litigation Law, it allows suit only where an administrative action has the quality of a disposition (shobun sei) "which create[s] rights and duties in citizens or confirm[s] their scope".⁴ Parties seeking review are regarded as lacking standing to sue unless they can demonstrate that such a disposition affects their rights and duties in some concrete fashion.⁵ In this context, legal rights are distinguished from "reflex interests" which are those shared by the general public, and which may be incidentally affected by the act.⁶

The limited review allowed by the Administrative Case Litigation Law has been further limited by strict judicial interpretation of its requirements. As a result, even where opposition to a given administrative determination is strong enough to overcome systemic and institutional barriers to litigation,⁷ direct challenge is difficult if not impossible. Rather, potential plaintiffs are relegated to suit under the National Compensation Law, which provides for state liability for negligent or willful conduct in the exercise of public authority.⁸ While suit under this law requires proof of standard tort liability, it provides a means of skirting the standing issue raised by the Administrative Case Litigation Law. However, the National Compensation Law stipulates that even where its standards can be met, compensation may be denied, despite the illegality of the action at issue, where the relief sought is considered to be against "public interest".⁹ Moreover, the statute also provides that, except in situations "of urgent necessity to prevent irreparable damage", the administrative act may be carried out pending the outcome of the lawsuit.¹⁰

However, despite these limitations, the National Compensation Law, insofar as it allows for governmental liability in a tort context, has been a standard feature in environmental litigation, as it supplies a means of asserting damages caused as a result of informal administrative determinations. In both the Minamata context and the air pollution context, plaintiffs have relied largely on tort claims against the government as well as private industry to force changes in relevant administrative standards.

III. The Pollution Related Health Damage Compensation Law

The Pollution Related Health Damage Compensation Law¹¹ was enacted in 1973 as the successor of the Pollution Victim Assistance Law of 1969. The previous law was an emergency bill, enacted before the conclusion of the Big Four cases in the wake of public demonstrations by toxic pollution victims.¹² The 1969 law was designed to accelerate the settlement process already underway between the polluters and victims (mimaikin). The law established a central fund made up of contributions from central and local governments, as well as voluntary contributions by polluting companies.¹³ This system, however, was considered inadequate, as it reached only a small number of victims and provided no means to compel abatement of harmful emissions.

At the time of its passage, the 1973 Law was hailed as an important innovation in environmental legislation, as it had the potential for reaching a larger number of injured victims and adopted the "polluter must pay principle" articulated by the OECD in 1972, levying the cost of compensation on polluters themselves, thereby encouraging abatement.¹⁴ The Law provided for compensation in essentially two areas-1) Class 1--non-specified respiratory diseases linked to air pollution, and 2) Class 2--specified diseases linked to the emission of certain toxic waste materials which include diseases such as Minamata disease, Itai Itai disease, and arsenic poisoning. As originally drafted, the Law provided for the designation of areas of high pollution levels, the designation of pollution-related diseases, and the designation of patients suffering from these pollution-related diseases.

Class 1 pollution areas were determined based on nationwide studies of sulfur oxide and nitrous oxide concentrations to determine areas which exceed the national average. Those areas which exceeded the national average for sulfur oxide concentrations were designated high pollution areas, which were further rated in four classifications.¹⁵ Once designated, a team of government scientists, bureaucrats, lawyers, and doctors was dispatched to the area to gather environmental and meteorological data in order to determine whether the prevalence of pollution-related diseases exceeded the national natural rate of occurrence.¹⁶ This data, in conjunction with data on sulfur oxide emissions was used to determine area boundaries through discussions between the national and local governments and business interests in the designated areas.¹⁷ Class 2 areas were determined on the basis of epidemiological and other data indicating areas affected by the emission of certain pollutants.

Pollution-related diseases were determined based on epidemiological evidence, and include mainly diseases recognized in the Big Four pollution trials. Recognized Class 1 non-specified diseases related to air pollution include chronic bronchitis, bronchial asthma, asthmatic bronchitis and emphysema. Recognized Class 2 specified diseases related to certain pollutants include Itai Itai Disease (cadmium), Minamata Disease (mercury), and arsenic poisoning (arsenic).¹⁸

Victims are certified by the governor of the prefecture where the designated area is located, in consultation with a prefectural Health Damage Certification Council composed of medical, legal and other experts. Victims are designated on the basis of the amount of time they had lived and worked in, or had contact with the two classes of areas. Either an applicant must have 1) lived or worked for a certain period of time in a Class 1 area and suffered from a non-specific disease which is not necessarily traceable to a pollutant by ordinary causality, or 2) lived in an area designated as Class 2 and suffer from a specific disease traceable to the pollutant by ordinary causality. The Law also established a central Pollution-Related Health Damage Compensation Grievance Board to respond to grievances in relation to compensation benefits.¹⁹ Article 108 of the Law stipulates that "[a] lawsuit to nullify an action with regard to certification . . . can not be instituted until after the . . Board has made a ruling on a request to review that action."

Patients recognized as suffering from pollution-related diseases are awarded compensation for medical care and rehabilitation. If the patient dies or his or her survivors file application within specified time limits, compensation includes survivors benefits and funeral expenses.²⁰ Recognized patients may also receive disability payments to an amount equivalent to 80% of their average monthly wages, when employed. The Law does not provide payment for property damage or pain and suffering.²¹

Compensation funds were paid entirely by polluters. In Class 1, 80% of contributions were accumulated from stationary producers of sulfur oxide emissions. This amount was split 90-10 between those polluters located within designated Class 1 areas and those located outside those areas. The remaining 20% was collected from mobile sources of nitrous oxide emissions through a tonnage tax on automobiles and motorcycles imposed on automakers.²² These funds were accumulated by the national government and allocated to local government for dispersal. In Class 2, producers of specified pollutants within designated Class 2 areas bore the entire burden of compensation, as well as 50% of administrative and rehabilitative expenses. The other 50% was contributed by national and local governments. These funds were both collected and dispersed at the local level.²³

IV. Alteration of Standards

Shortly after the passage of the 1973 Law, political pressures began to chip away at the newly established environmental legislation. In July 1977, the Director of the Health Insurance Section of the Environmental Agency Planning and Coordination Bureau issued a report revising the standard for determining whether or not patients applying for compensation suffer from Minamata disease.²⁴

According to the original standard established in August 1971, Minamata disease was recognized to induce a number of symptoms in patients, including involuntary movements, convulsions, trembling, and loss of sensation in extremities. Of these symptoms, those identified by studies of Hunter-Russell Syndrome as being the main symptoms were 1) centripetal narrowing of vision in both eyes 2) loss of movement (including speech and motion handicaps) 3) loss of hearing 4) and loss of sensation. Where any of these symptoms was present, except where it was clear that it was due solely to another cause, it was considered indicative of Minamata disease. Moreover, if the symptom was influenced by the ingestion of mercury, even where another cause did exist, the symptom was still considered indicative of Minamata disease.²⁵

The 1977 standard, based on more than 20 years of experience with Minamata disease, was considered by many to be much stricter than its predecessor.²⁶ The report noted that since many of the symptoms of Minamata disease were non-specific, patients having the required exposure history would be evaluated on whether their particular combination of symptoms fell within four specified combinations of symptoms considered to indicate Minamata disease. Only where patients demonstrate 1) loss of sensation and loss of movement, or 2) where these symptoms are suspected and there is a demonstrated loss of balance or centripetal narrowing of vision, or 3) where loss of sensation and centripetal narrowing of vision is demonstrated, or 4) where loss of sensation and loss of movement are demonstrated and from the combination of other symptoms, a determination can be made that the cause was mercury intake, it will be considered Minamata disease.²⁷

The change in the environmental ambient standard for nitrous oxide occurred in 1978 in the wake of the so-called "oil shock" in the early seventies. The previous standard was set at .02ppm/hr in 1971, immediately after the decision in the Yokkaichi air pollution case, by an expert committee attached to the new Central Council for Environmental Pollution Control, an advisory body to the Environmental Agency. Although at the time there was clinical data regarding exposure of laboratory animals and humans to extremely high levels of nitrous oxide, there was no evidence of the effect of lower levels of nitrous oxide, nor was there any known method of controlling nitrous oxide emissions. Public outcry in the wake of the Big Four pollution cases encouraged the committee to "place the burden of scientific uncertainty on private industry", and the standard was set at half that for sulfur oxide.²⁸

By the latter half of the seventies, however, concern over declining productivity and high oil prices allowed industry to have enormous impact on the initial ambient and emission standards set by the Environmental Agency. In 1977, the Industrial Structure Council of MITI submitted a report criticizing the ambient standard as unattainable, and based on uncertain scientific foundations.²⁹ The following year the new standard was announced, allowing emissions to fall between .04ppm/hr and .06ppm/hr.³⁰

These cases of relaxation in the existing standards, as well as the failure of the administrative bodies to designate new diseases, have lain at the heart of subsequent complaints in the environmental field in Japan.

V. Minamata

Litigation with regard to the dumping of mercury into Minamata Bay³¹ by the Chisso Corporation has continued almost uninterrupted since the first of the so-called "First Group" cases was filed in Kumamoto District Court in June 1969.³² It was in this landmark case, one of the Big Four, that Chisso's liability was first recognized and the settlement (mimaikin) contract that had been signed between the parties ruled ineffective as against public order and morals.³³ After this case, which ended in January 1973, Minamata litigation has focused on direct and indirect means of forcing the alteration of administrative standards through the influence of judicial decisions, thereby obtaining compensation for those not recognized under the Law. Based on the strategy used, and the defendants sued, these subsequent cases are appropriately divided into the Second Group and Third Group.

The first of the Second Group cases began immediately before the first set of decisions regarding Minamata appeared, prior to the institution of the administrative recognition system. A group of 141 plaintiffs who claimed to suffer from Minamata disease filed suit against Chisso, in Kumamoto District Court, seeking approximately ¥17 billion in damages. After the conclusion of the first Minamata case and the establishment of the administrative system of recognition, many plaintiffs dropped out of the case. In March 1979, 12 of the remaining 14 plaintiffs were recognized by the court as suffering from the disease, based on the recognition standards established in the 1971 administrative report (tsutatsu).³⁴

However, in July 1978, before the conclusion of the case, the stricter standard of recognition was announced by the Environmental Agency. Both parties appealed to the Fukuoka High Court, but those plaintiffs meeting the requirements set by the new administrative standard settled with Chisso, leaving only 5 plaintiffs remaining. In August 1985, the High Court recognized 4 of these plaintiffs as suffering from Minamata disease.³⁵ The court determined that although the make-up of the patients' symptoms differed slightly from the symptom combinations specified in the 1977 report, since the symptoms were extremely specific, without evidence to the contrary, there would be a presumption that the disease is Minamata disease, where there is epidemiological conditions indicating a high likelihood of occurrence of Minamata disease in the patient's family.

In another Second Group case, 406 plaintiffs initiated suit in December, 1974 against the Governor of Fukuoka Prefecture seeking a declaratory judgment that, under Article 3(5) of the Administrative Case Procedure Law, the administration's delay in processing applications amounted to illegal forbearance. The Kumamoto District Court supported the plaintiffs' position in December, 1976.³⁶ The Governor did not appeal. In December, 1978, based on the finding of illegality by the Kumamoto District Court, 24 applicants brought suit against the national government, which managed the administrative system, and the prefectural government, which was responsible for the disbursement of funds, for civil compensation under the National Compensation Law. The plaintiffs had all applied for recognition but had had to wait an average of 6.5 years for final determination. In July, 1983, the Kumamoto District Court, while distinguishing between the scope of illegality of a violation of the Administrative Case Procedure Law and the National Compensation Law, awarded the plaintiffs compensation for mental suffering resulting from the delay, concluding that the delay between the application and the determination of recognition amounted to administrative negligence.³⁷ Both defendants appealed to the Fukuoka High Court, which essentially affirmed the District Court decision but reduced the compensation to be awarded to the plaintiffs from ¥20,000 per month per person to ¥5,000 per month per person.³⁸ Both defendants filed jokoku appeals to the Supreme Court. In April 1991, the Supreme Court reversed the High Court decision and remanded it for retrial, determining that the High Court's conclusion that the applications should have been acted upon within six to twenty-eight months was arbitrary. Rather, ruled the Supreme Court, the presence of negligence on the part of the administration should include consideration for the efforts made to streamline the administrative process.³⁹

A final case which should be considered to be among the Second Group cases is a case filed in Kumamoto District Court by 4 applicants from Kumamoto and Kagoshima who sought cancellation of the administrative determination of their respective prefectural governors denying them recognition as Minamata sufferers, claiming illegality in the determination process and recognition standards. The court recognized all the plaintiffs claims in March 1986, establishing the most liberal judicial standard for the recognition of Minamata disease.⁴⁰ Essentially, in the view of the court, where epidemiological requirements have been met, there is no requirement to demonstrate combinations of symptoms such as those stipulated by the 1977 report, nor should the recognized symptoms be limited to the so-called "main symptoms" considered to indicate mercury poisoning.⁴¹ Both governors have appealed to the Fukuoka High Court where this case is still under deliberation.

As these cases illustrate, the Minamata Second Group litigation can be characterized as efforts by plaintiffs who have applied to the administrative system, and either been rejected or not given a timely response, to assert direct challenge against the administrative process and designation standards. With the exception of the first Second Group case, which was filed before the establishment of the administrative system, Second Group Minamata litigants have relied predominantly on the categories of suit available through the Administrative Case Litigation Law to establish administrative fault. While the outcome of the last of these cases is still uncertain, liberal judicial interpretation of the requirements of this law at the district court level have resulted in only marginal success on appeal. Moreover, despite the more lenient recognition standards enunciated by the court in these cases, there have been no administrative efforts to adopt a similar standard.

In response, Minamata litigants have adopted new strategies which circumvent the administrative compensation system entirely. By relying on judicial recognition standards established by the Second Group, Third Group plaintiffs have returned the court's attention to the original Minamata incident, using the National Compensation Law to allege government liability, in addition to that of private industry, in the emission of mercury.

In the first Third Group case,⁴² the court awarded 85 non-recognized applicants compensation after 7 years of litigation, recognizing for the first time the administration's responsibility for failure to prevent the dumping of mercury in the first place and subsequent failure to take action once the harmful effects were known. The court stated that once the disease was recognized, a duty was created on behalf of the national and prefectural governments to stop the emissions, or to ban the sale of fish in the area, powers explicitly available to the government through legislation such as the Food Sanitation Act, the Fisheries Act and the Water Quality Conservation Act.⁴³ The court determined that a positive duty to act on the part of a regulatory agency is created where 1) there is a threat of serious danger to the health and life of citizens, 2) the administrative agency is in a position to know of the danger, 3) without some regulatory action, there is no predictable way of preventing harmful results, 4) there is a public request or desire for such regulatory action, and 5) the exercise of regulatory power would easily prevent the harmful result.⁴⁴ All the defendants subsequently appealed to the Fukuoka High Court.

However, the success of this initial Third Group decision had enormous impact. In Kumamoto District Court alone, 11 additional plaintiffs groups, with approximately 1,145 total plaintiffs, filed suit under similar theories, and in other courts across the country the same sort of cases have been filed.⁴⁵ In October 1982, 36 non-recognized sufferers filed suit in Osaka District Court against Chisso, as well as the national and prefectural governments seeking approximately ¥1.1 billion in damages. The plaintiffs were former residents of Kumamoto and Kagoshima who claimed that the effects of the disease had only become apparent after they had left the area. Most of them had applied for official recognition in their former prefectures but had either been denied or there had been no action on their claims.⁴⁶ In May 1984, a group of 355 non-recognized victims filed suit in Tokyo District Court, seeking ¥7.9 billion in damages. Finally, in November 1985, 5 victims filed suit against Chisso, its related subsidiaries, and the national and prefectural governments in Kyoto District Court for ¥99 million in damages under theories similar to those used in Osaka, Kyoto, and Kumamoto. Additional litigation has increased the number of plaintiffs in that case to 132.⁴⁷

Expressing concern that, at the present pace of litigation, deserving plaintiffs may be long dead before compensation is obtained, the judiciary's response to this latest wave of Minamata litigation was to push for settlement negotiations between the parties. In late September 1990, Tokyo District Court recommended settlement in the cases of 355 non-recognized plaintiffs involved in litigation there.⁴⁸ Shortly thereafter, the Kumamoto District Court recommended settlement in the cases of all 11 plaintiffs' groups in litigation there.49 Subsequently, the Fukuoka High Court recommended settlement in the initial Third Group case there on appeal.⁵⁰ One after another, the Osaka, and Kyoto District Courts have also recommended settlement in the cases in their jurisdictions and plaintiffs groups from around the country gathered to hammer out concrete settlement proposals.⁵¹ Yet the process of settlement was neither easy nor swift, and in retrospect, the judiciary's reluctance to accommodate further litigation of the dispute may not have been the most expedient means of resolution.

Initially, the national government declined to accept the court's recommendations and boycotted settlement negotiations, ostensibly out of fear that mere participation in the negotiations would be interpreted as tacit recognition of fault, thereby encouraging similarly situated victims of administrative actions to bring suit in the hopes of similar treatment. Ultimately, however, concerns over appearance of culpability were outweighed by political pressures to finally bring the Minamata litigation to an end. ⁵² The long years of litigation had had a damaging effect on development in Kumamoto and Niigata, as well as on Japan's environmental reputation worldwide. Nonetheless, it was not until late in 1995 that governmental responsibility was acknowledged by then Prime Minister Murayama. Following this admission, settlement negotiations began to move rapidly to conclusion, and in May 1996, the government, Chisso and representatives of various Third Group plaintiffs groups executed an Umbrella Settlement Agreement providing for compensation from both the government and Chisso.

VI. Nishi-Yodogawa

While litigation regarding Minamata disease, a Class 2 disease, has involved non-recognized patients seeking either to broaden administrative standards to encompass their particular cases, or to explore avenues of obtaining compensation outside of the administrative system altogether, Class 1 litigation has been brought largely by recognized patients seeking to establish recognition of a connection between nitrous oxide and their diseases, as well as to increase the compensation amount related to sulfur oxide emissions.

The first of these cases to reach decision is the Nishi Yodogawa Case.⁵³ Filed in 1978 in response to the change in the ambient standard for nitrous oxide, and following other indications which suggested a governmental retreat from environmental legislation, a group of 117 plaintiff-residents of the Nishi Yodogawa Ward area of Osaka sued the national government, as well as a number of public and private corporations for compensation for pollution-related respiratory diseases they claimed were caused by sulfur oxide emissions produced by 10 companies in the area, including Kansai Electric Power Co., Osaka Gas Co., Sumitomo Metal Industries, and Kobe Steel, and by nitrous oxide exhaust fumes from a nearby series of highways, including the Hanshin Expressway Ikeda Route, National Highways 2 and 43, and the Osaka Nishinomiya Route. The plaintiffs also sought an injunction against all defendants prohibiting the production of nitrogen and sulfur combinates in excess of the environmental standard, claiming that the appropriate standard for nitrogen was 0.02ppm/hr, the standard prior to the 1978 change. As compensation, the plaintiffs sought a range of ¥10-25 million per individual, depending on their circumstances.⁵⁴

The Osaka District Court awarded ¥357 million in damages to 63 of the original group of 117, but required that damages be offset by the amount of compensation each plaintiff was receiving under the administrative system. While recognizing the connection between the plaintiffs' diseases and the sulfur oxide emissions from companies in the area, the court declined to recognize the connection between exhaust fumes and respiratory disease. The court also denied the injunction against emissions produced by the highway system in excess of the original safety standards established by the Environmental Agency.⁵⁵ The decision was subsequently appealed.

Although the plaintiffs in the Nishi Yodogawa case were unsuccessful in obtaining judicially recognized standards more favorable than those established by the administration, the case broke new ground in the standards of proof required to establish a joint tortious activity. Up until Nishi Yodogawa, proof of joint tortious activity required not only demonstration of a causal connection between the defendants' acts and the plaintiffs' damages, but that the actions of each defendant amounted to a tortious act, and that the defendants acted in concert. This strict standard had been loosened somewhat in the Yokkaichi case,⁵⁶ one of the Big Four cases, in which the court distinguished between strong and weak connections between defendants. Defendants with weak connections to each other i.e. their actions unite in such a way that it is considered a joint action in the eyes of society, must be demonstrated to have individually engaged in tortious activity, or to have been able to foresee that joint activity would cause the claimed damage. Once weak connections have been demonstrated, the burden shifts to the defendants to show their activities could not have caused the plaintiff's damages. Where, however, defendants can be demonstrated to have a strong connection to each other, i.e. they are subjectively connected through joint use of funds etc., they will be held jointly and severally liable even when such defendants have little relation to the damage caused.⁵⁷

Thus, in the Yokkaichi case, the judiciary had relaxed the joint action requirement somewhat, but that doctrine still posed a substantial barrier to the Nishi Yodogawa plaintiffs, who faced the burden of establishing joint tortious activity between 10 completely unrelated companies in the Nishi Yodogawa area. The plaintiffs argued that the defendants acted jointly by alleging that due to weather patterns in the area, the companies' emissions had "mixed" to form a single danger to the plaintiffs. This argument for joint activity was bolstered by the assertion of an cooperative "accumulation benefit"; that the defendants had all chosen the Nishi Yodogawa area for the relative convenience of port facilities and national highways in the area, and the proximity of potential corporate customers.⁵⁸ The court found that the "mixing" of emissions was sufficient to demonstrate a strong connection between the defendants, and held them jointly and severally liable for the health damage caused to residents in the area.⁵⁹

It is important to note that the Nishi Yodogawa case is only the first of a number of similar pollution cases to reach decision. Similar cases were cited in Kawasaki and Kurashiki. The Kurashiki case was begun in February, 1983 in Okayama District Court, when an initial group of 60 plaintiffs suffering from respiratory disease as well as the survivors initiated suit against 8 companies in the Mizushima area, including Kawasaki Iron, Chugoku Power, Mitsubishi Chemicals, Mitsubishi Oil, Nippon Steel and Okayama Chemicals. Two additional plaintiffs groups increased the number of plaintiffs to 300. In a situation very similar to that of Nishi Yodogawa, this case was brought in response to the loosening of the air pollution standard for nitrogen oxide in 1978.⁶⁰ The plaintiffs sought to re-clarify the responsibility of local polluters, seeking an injunction prohibiting the emission of pollutants in excess of the original standard and demanding a ranked system of compensation for their injuries. Kurashiki was a designated area under the Law, where, as of 1989, there were 3,830 recognized patients.⁶¹

The Kawasaki case involved 4 separate plaintiffs groups amounting to 440 people in all (43 have died during litigation) who initiated suit beginning in March, 1982 against 13 major companies in the Kawasaki area, including members of the Nippon Oil and Tonen Refinery keiretsu, Tokyo Electric, and JNR, the national government, and the Shuto Expressway Public Corporation. The complaint asks for a graded system of compensation, and an injunction against production of nitrogen and sulfur oxides in excess of the environmental standards.⁶²

The unique aspect of this case is the claim of relationship between the government and industries in the establishment and operation of pollution sources. In essence, under theories which closely parallel those used in the Third Wave Minamata cases, the plaintiffs argue that remarkable increases in emission rates from the early 70s to the early 80s could not have occurred without the guiding policies of the government, including tax incentives and monetary aid, and therefore the government's inappropriate regulatory action or inaction played a role in causing the plaintiffs' injuries. However, unlike other cases of this kind, which have focused on one agency's regulatory power, the Kawasaki plaintiffs face an additional proof burden as responsibility is spread among a variety of governmental agencies.⁶³

Despite their independent circumstances, the Nishi Yodogawa decision had enormous impact on course of litigation in Kurashiki and Kawasaki, making it unlikely that any of these cases would culminate in judicial recognition of a connection between nitrous oxide emissions 64and the plaintiffs' diseases. Like the Minamata cases, the Nishi Yodogawa line of cases were pushed towards settlement. In March 1995, nine of the Nishi Yodogawa defendant companies settled for ¥4 billion, and the disputes between the remaining parties were resolved by binding arbitration conducted by the Osaka High Court in July 1998, resulting in government agreement to reduce the number of traffic lanes on Routes 2 and 43. Similarly, The Kawasaki and Kurashiki cases were ultimately settled in May 1999 pursuant to an agreement which required the government to "seriously work" on improving air quality and pay compensation.

VII. Conclusion

The parallels between the Nishi Yodogawa line of cases and the Minamata cases are unmistakable. In both cases, the plaintiffs sought to focus public attention on particular environmental problems through large-scale litigation. In both cases, litigation was used successfully as a political tool to affect administrative policy by seeking judicial recognition of pollution standards and causal connections between pollution and diseases which the administration has rejected. Finally, in both cases, the most effective tool for challenging the informal administrative standards at issue was through tort claims against the national government.

End Notes

1 See especially the works of Frank Upham, most notably Law and Social Change in Postwar Japan for greater explication of this process in the recognition of new legal remedies for Burakumin and women. Law and Social Change in Modern Japan

2 The Big Four consist of Aoyama et. al. v. Mitsui Kinzoku, Nagoya High Court, August 9, 1972, 674 Hanji 25; Ono et. al. v. Showa Denko, Niigata District Court, September 29, 1971, 22 Kakyu Minshu (Nos. 9-10); Watanabe et. al. v. Chisso, Kumamoto District Court, August 9, 1972, 696 Hanji 15; Shiono et al. v. Showa Yokkaichi Sekiyu, Tsu District Court, July 24, 1972, 672 Hanji 30. The most notable developments pioneered by these cases include the acceptance of epidemiological evidence to prove causation, the expansion of the interpretation of joint tort liability provisions to encompass defendants who have participated in the creation of the alleged harm, but have not themselves contributed to the plaintiffs injuries, and the recognition of new methods of damage calculation which circumvent the requirement that each plaintiff demonstrate the extent of her harm.

3 Among these are the Air Pollution Control Law (Law No. 97, 1969), the Water Pollution Control Law (Law No. 138, 1970), the Environmental Agency Establishment Law (Law No. 88, 1971), and the Pollution Dispute Settlement Law (Law No. 108, 1970)

4 Fujikura, K., J. Gressor and A. Morishima, Environmental Law in Japan, M.I.T. Press, 1981, p. 134

5 Haley, J., "Japanese Administrative Law: An Introduction", in Haley ed. Law and Society in Contemporary Japan, Kendall/Hunt Publishing Company, 1988, p. 42

6 Fujikura, p.134

7 For further explication of these barriers, see Haley, J., "Sheathing the Sword of Justice" in Journal of Japanese Studies, University of Washington Press

8 Haley, J., "Japanese Administrative Law: An Introduction", p. 40

9 Ibid., p. 41

10 Ibid., p. 41

11 As a result of subsequent amendments, now called the Law Concerning Compensation for Pollution Related Health Damage and Other Measures, Law No. 111, October, 1973

12 Gressor, J., "The 1973 Japanese Law for the Compensation of Pollution-related Health Damage: An Introductory Assessment", in Haley ed. Law and Society in Contemporary Japan, Kendall/Hunt Publishing Company, 1988, p.146

13 Ibid., p. 146

14 Ibid., p. 147

15 Fujikura, p. 292.

16 Ibid., p. 292

17 It is important to note that in 1987, based on a report submitted by the Central Council for Environmental Pollution Control, a revision of the Pollution-Related Health Damage Compensation Law was approved canceling all of the 41 designated Class 1 pollution areas recognized at that time. While allowing the approximately 98,080 formerly recognized patients to continue receiving benefits, new cases of air pollution-related respiratory illnesses would not be recognized or compensated through the Law. Instead, funds received through pollution levies would be redirected to finance implementation of projects to prevent air pollution-related health damage, including the establishment of a pollution surveillance system. See Sakagura, Y., "Problems Concerning the Revision of the Pollution Related Health Damage Compensation Law" (Kogai kenko higai hosho ho no kaisei to mondai ten), Juristo, No. 898, December 1, 1987, p. 70

The impetus for the revision was the rapid rate of increase of patients from 1983-1987 despite consistently declining levels of sulfur oxide nationwide. The net increase of patients each year was around 3,000 people, while sulfur oxide levels dropped each year, in 1987 measuring 1/13 of levels at the outset of the Law in designated areas, and 1/5 of original levels nationwide. As the system designates areas using only sulfur oxide as the standard, and excluding nitrous oxide emissions from moving sources, the Council concluded that while "[i]t cannot be denied that the present air pollution exerts some influence on the natural history of chronic [respiratory diseases], . . it cannot be thought to comprise a major cause of the outbreak of such diseases. Kato, I., Hashimoto, Morishima et. al, "Revision Points of the Pollution Related Health Damage Compensation Law" (Kogai kenko higai hosho ho no kaisei mondai), Juristo, No. 877, February 1, 1987, p. 86

18 Environmental Agency of Japan, Quality of the Environment in Japan 1989, Government of Japan Publication, p. 252

19 Law Concerning Compensation for Pollution Related Health Damage and Other Measures, Law No. 111, October, 1973, Art. 4

20 Ibid., Art. 29-38

21 Gressor, "The 1973 Japanese Law for the Compensation of Pollution-related Health Damage", p. 151

22 Fujikura, p. 296-297

23 Ibid., p. 300

24 Niimi, I. "Regarding the Minamata Disease Recognition Standard" (Minamata byo nintei kijun o megutte), in Juristo, No. 889, July 1, 1987, p. 28

25 Ibid., p. 29

26 Indeed, after the alteration in the standard, patients began to be denied recognition in increasingly large numbers: 1975-24 rejections, 1976-90 rejections, 1977-92 rejections, 1978-296 rejections, 1979-601 rejections, 1980-845 rejections. Awaji, T., "About the Minamata Third Group Litigation Decision" (Minamata byo dai sanji sosho hanketsu ni tsuite) in Juristo, No. 889, July 1, 1987, p. 14

27 Awaji, T., p. 10

28 Fujikura, p. 258-259

29 Ibid., p. 258-259

30 Shimakawa, M. "The Progress of Air Pollution Protection Administration and Future Topics" (Taiki hozen gyosei no ayumi to kongo no kadai) in Juristo, No. 928, March 1, 1989, p. 39

31 The first cases of Minamata disease appeared in late April, 1956 when a five-year-old girl was admitted to the attached hospital of the Chisso factory in Kumamoto, suffering from movement and speech disabilities. Shortly thereafter her two-year-old sister developed the same problems, and so began a steady stream of victims which has continued for almost 35 years.

As of 1989, approximately 2,929 people have been officially recognized as suffering from Minamata disease, but nearly twice that number of people have applied for recognition and have been rejected or are still under consideration. In all, there have been almost 110 separate civil cases filed in courts all over the country which relate in some way to the Minamata incident. Shiomi, Kazuo. "An Outline of the Kumamoto Minamata Litigation" (Kumamoto minamata byo sosho no keii) in Juristo, No.889, July 1, 1987

32 Watanabe et. al. v. Chisso, Kumamoto District Court, August 9, 1972, 696 Hanji 15

33 Shiomi, K., "An Outline of the Kumamoto Minamata Litigation" (Kumamoto minamata byo sosho no keii) in Juristo, No.889, July 1, 1987, p. 4

34 Morieda et. al. v. Chisso, Kumamoto District Court, March 28, 1979, 927 Hanji 15. See also Shiomi, Kazuo. "An Outline of the Kumamoto Minamata Litigation" (Kumamoto minamata byo sosho no keii) in Jurist, No.889, July 1, 1987

35 Takemoto et. al. v. Chisso, Fukuoka High Court, August 16, 1985, 1163 Hanji 254

36 Matsumoto et. al. v. Governor of Kumamoto Prefecture, Kumamoto District Court, December 15, 1976, 835 Hanji 30

37 Nakamura et. al. v. Japan et.al., Kumamoto District Court, July 20, 1983, 1086 Hanji 33

38 Kumamoto Prefecture et. al. v. Nakamura et. al., Fukuoka High Court, November 29, 1985, 1174 Hanji 21

39 Japan Times, April 27, 1991

40 Araki et. al. v. Governor of Kumamoto, Kumamoto District Court, March 27, 1986, 1185 Hanji 38

41 Awaji, T., "About the Minamata Third Group Litigation Decision" (Minamata byo dai sanji sosho hanketsu ni tsuite) in Juristo, No. 889, July 1, 1987, p. 11

42 Sawada et. al. v. Japan et. al., Kumamoto District Court, March 30, 1987, 1235 Hanji 3

43 Aizawa, M., The Liability of State and Local Administrative Bodies in Pollution Cases-An Overview of the State Tort Liability Approval Decision in the Third Minamata Disease Litigation, Paper given at the Inter-Pacific Bar Association Annual Meeting, Tokyo, Japan, April, 1991, p. 8

44 Ibid., p. 10

45 Shiomi, K., p. 7

46 Ibid., p. 7

47 Ibid., p. 7-8

48 Japan Times, September 30, 1990

49 Japan Times, October 5, 1990

50 Japan Times, October 13, 1990

51 Japan Times, November, 12, 1990

52 From discussions with Toshiro Ueyanagi, Esq.

53 Osaka District Court, March 29, 1991, __ Hanji __

54 Shimakawa, Masaru. "The Present State of Air Pollution Litigation and Problem Points-In the Case of Nishi Yodogawa" (Taiki osen sosho no genjo to mondaiten) in Juristo No. 928, March 1, 1989, p. 43

55 Japan Times, March 30, 1991

56 Shiono et al. v. Showa Yokkaichi Sekiyu, Tsu District Court, July 24, 1972,

672 Hanji 30

57 Nakayama, M., "Pollution Liability" in Z. Kitagawa ed. Doing Business in Japan, Matthew Bender Co., Inc., 1984, Vol. 6, Sect. 3.02(2)(c)(ii)

58 Sawai, Y., "Consideration of the Nishi Yodogawa Pollution Litigation Decision" (Nishi Yodogawa Kogai sosho hanketsu o kangaeru), Horitsu Jiho, No. 63, p. 3-5

59 Mizuno, T., Pollution and Environmental Problems and the Role of Practicing Attorneys in Japan, Paper given at the Inter-Pacific Bar Association Annual Meeting, Tokyo, Japan, April, 1991, p. 15

60 Ishida, M., "The Present State of Air Pollution Litigation and Problem Points-In the Case of Kurashiki" (Taiki osen sosho no genjo to mondaiten) in Juristo No. 928, March 1, 1989, p. 48

61 Ibid., p. 48

62 Hayashi, R., "The Present State of Air Pollution Litigation and Problem Points-In the Case of Kawasaki" (Taiki osen sosho no genjo to mondaiten) in Juristo No. 928, March 1, 1989, p. 46

63 Ibid., p. 46-47