The Strength of the Courts to Take a Comprehensive, Long-Term View in Japan: Lessons from the Kobe Case

Conclusion of Kobe Civil Litigation Appeal Trial and its Background

On October 23, 2024, the Osaka High Court concluded the Kobe civil case. This case is the second climate change case in Japan, filed in September 2018, following the Sendai case filed in September 2017. However, in the Sendai case, the issue of climate change was excluded at an early stage of the first instance by the presiding judge's suggestion. Therefore, this case is the first substantive climate change lawsuit in Japan.

During approximately six years' process, the domestic and international situation surrounding climate change has changed markedly. Globally, the Dutch Supreme Court recognised climate change as a real and imminent threat to human rights in December 2019. In March 2021, the German Federal Constitutional Court ordered the government to increase its emission reduction targets in the interest of intergenerational equity for emission reduction obligations, based on compliance with carbon budgets. Moreover, in April of the same year, the European Court of Human Rights issued a recommendation in response to a lawsuit by an elderly women's organisation in Switzerland.

In Japan, two months after this case, 12 residents filed an administrative case, based on the same fact of the Kobe civil case, demanding the cancellation of the final notice of the environmental impact assessment statement (EIS) for the planned coal-fired power plants (CFPPs), issued by the Ministry of Economy, Trade and Industry (METI). The residents claimed substantial illegality in insufficient consideration of the cumulative impact of CO2. In addition, in May 2019, 45 residents filed another administrative case against METI, claiming the cancellation of the final notice of EIS for the planned CFPPs in Yokosuka that faces Tokyo Bay. Furthermore, in August 2024, 16 young people from across Japan filed a youth climate case against 10 major electric power companies, seeking a partial injunction against CO2 emissions.

Among these, the Kobe administrative case was finalised on March 9, 2023, and the Yokosuka case is currently under appeal to the Supreme Court. On the other hand, the High Court's decision in this case is scheduled to be handed down on April 24, 2025. Either party is expected to appeal the decision, regardless of its content, meaning the case will not yet be finalised. In other words, this case is taking the longest time in Japanese climate cases to date.

Strengths of the Litigation: Comprehensive Long-Term Deliberation

Given these circumstances, the plaintiffs and their lawyers in both Kobe cases adopted various strategies to strengthen their arguments. First, they kept the court informed of the latest foreign climate judgments and advances in climate science. Regarding the former, foreign judgments do not immediately have any legal effect in Japan due to the difference in jurisdiction. However, the argued subject in the court case is the universal issue of climate change. The plaintiffs continued to inform Japanese courts of how foreign courts have dealt with this issue. They also presented climate science findings, including numerous reports from the IPCC and locally downscaled insights.

Second, the plaintiffs adapted their claims in response to evolving circumstances. When the two contested coal-fired power plants (CFPPs) were initially planned at the time of filing, construction proceeded during the trial. One plant began operating in February 2022, followed by the second in February 2023. In light of this developments, the plaintiffs adjusted their claims in April 2021, assuming the operation of both plants. Specifically, they demanded a linear emissions reduction at the same rate each year through 2040, aligning with international calls for the phase-out of CFPPs in developed countries.

These strategies partially led to some suggestive rulings from the courts. For instance, while the Court of Appeals in the Kobe Administrative Case did not recognise the plaintiffs' standing to contest climate change impacts, it left open the possibility of reversing this decision in the future, depending on social changes in Japan and abroad. Similarly, the District Court in the Kobe civil case did not ultimately uphold the plaintiffs' claims but did acknowledge that climate change impacts could constitute human rights violations.

When confronted with the global-scale issue of climate change within the constraints of their domestic judicial systems, the courts of various countries, including Japan, have delivered their rulings after prudent consideration. The length of time they took to reach their decisions might be problematic, given the accelerating seriousness of the climate change issue and the current lack of progress in appropriate responses, both domestically and internationally. On the other hand, it is a universal strength of the judicial system to keep up with the ever-evolving and changing climate science and social conditions, objectively grasp them, and ensure that decisions are made from a comprehensive, long-term perspective in light of laws and regulations.

Challenges Facing Japan's Energy Strategies in Recent Years

Japan, a coal-dependent country that has won three consecutive fossil awards at past COPs, shifted its policy in November 2020 toward carbon neutrality by 2050. However, this country still refuses to sign the Action for No New Coal in national climate plans. Instead, it has devised a peculiar method of ammonia co-firing to prolong the use of CFPPs facilities. More problematic is the fact that the nation's next Basic Energy Plan (the seventh phase, expected to last approximately three years from 2024) calls for the maximum use of nuclear power, even after the 2011 Fukushima Nuclear Power Plant accident.

Decarbonisation should be seen not as an end in itself, but as a means to achieve a sustainable and prosperous society that guarantees human well-being. No other public interests should be undermined in the name of decarbonisation. Such trade-offs may occur when people fall into narrowed perspectives, seeking short-term results to overcome immediate challenges as coping strategies.

At the concluding hearing of the Kobe civil case, Chief Attorney Naoki Ikeda affirmed the plaintiffs' commitment to fighting to pass on a better world to the next generation. He drew an analogy between the litigation process and the sport of rugby, noting that the defendant, Kobe Steel, had a well-known and powerful working rugby team. He also asked the defendants and the court to "accept the heavy and difficult ball" they had thrown at them and to hold out hope for the future. Kobe, a city that endured severe air pollution during Japan's rapid industrial growth in the 20th century, has residents involved in these cases who bring historical perspectives from previous pollution-related litigation. This case is also carrying on the ball from the past. Moreover, one of the plaintiffs in the youth climate case stated that she became a plaintiff to fulfill her responsibility to the subsequent generations. These youth plaintiffs are also passing the ball to future generations.

As the 2030 target for achieving the SDGs rapidly approaches, the global situation remains tumultuous. It is time for the court to take a holistic view of the challenges, including climate change, and prudently play a major role in long-term deliberation.

Author:

Dr Masako Ichihara is a Program-Specific Assistant Professor at the Center for Interdisciplinary Study of Law and Policy, School of Law, Kyoto University. She earned her Ph.D. in Global Environmental Studies from the Graduate School of Global Environmental Studies, Kyoto University in September 2021, and holds a Juris Doctor degree from the University of Tokyo. Dr Ichihara is currently a member of the Peer Review Network of Climate Litigation at the Sabin Center for Climate Change Law. She also serves as the National Rapporteur for Japan of BIICL's Global Toolbox on Corporate Climate Litigation.