Article by Nobuo Kumamoto
The Vermont Yankee decision is particularly interesting to Japanese lawyers, many of whom are often embroiled in similar controversies involving the choice between environmental protection and the production of nuclear energy. The decisions in Japan relating to this kind of controversy reveal an interesting set of social and economic problems, and attempt to solve these problems through different legal approaches than those used in the United States. Japanese courts usually examine only the procedural aspects of the decision making process utilized by the executive branch of the government, though a cursory merits review may sometimes be undertaken. Although administrative procedures in Japan and the United States differ, American cases on environmental law are quite important for Japanese legal scholars.
In Japan, there is broad administrative discretion regarding the decision whether or not to construct a nuclear facility. The plaintiff in such a case, therefore, must base any challenge upon deficiencies in the procedure or decision making process adopted by the administrative agency. Vermont Yankee raises several legal questions concerning the decision making process that intersect with Japanese concerns: (1) how is the administrative process employed by governmental officials evaluated when there are no detailed procedures provided; (2) what is the proper relationship between the role of courts and that of administrative agencies, especially with regard to the problem of standing to sue; and (3) who has final responsibility for protecting the environment and deciding environmental issues, judges or government officials? These questions are in all likelihood as difficult to answer in the United States as they are in Japan.
This article will first briefly compare Japanese and American administrative law and will then discuss a Japanese case similar to Vermont Yankee. Hopefully, such comparisons will contribute to the effort to develop sound legal frameworks which ensure the protection of our limited environmental resources.
About the Author
Nobuo Kumamoto. Professor of Law, Hokkaigakuen University, Sapporo, Japan.
Citation
55 Tul. L. Rev. 482 (1981)