Feb 17, 2017

U.S. Government Supports Lower Court Decision that Navy Members’ Fukushima Suit Can Proceed in US @ejkohse

Emma KohsIn March 2011, a magnitude 9.0 earthquake rocked the eastern Japanese coastline, causing 100-foot waves, massive damage, and nuclear meltdown at the Fukushima-Daiichi plant. The following day, the U.S.S. Ronald Reagan arrived near Fukushima to carry out Operation Tomodachi ("friend"), a $90 million humanitarian assistance operation. In a class action lawsuit filed in the Southern District of California, U.S. naval service members and their families allege that they were exposed to dangerous levels of radiation during this operation, and seek damages from the Tokyo Electric Power Company (TEPCO), which owned and operated the six-reactor nuclear plant. District Judge Janis Sammartino initially dismissed the suit as non-justiciable under the political question doctrine, but allowed an amended complaint to go forward. TEPCO appealed the denial of its motion to dismiss to the 9th Circuit.

At this stage, the major dispute in the case concerns the forum rather than the substance: should the plaintiffs be permitted to hale TEPCO into American courts, or must they sue in Japan, where such claims can be submitted to a Nuclear Damage Claim Dispute Resolution Center set up by the government? This question, however, implicates sensitive issues of sovereignty and competing national interests, pitting members of the U.S. military against a company that was essentially nationalized by the Japanese government after the crisis. As the U.S. government's brief explains:

This case thus touches upon strong U.S. interests, both because of our Nation's enduring relationship with Japan, a longstanding and essential ally, and because plaintiffs in this action are members of the U.S. military allegedly harmed while deployed on a humanitarian mission, and their family members.

At the request of the 9th Circuit, the United States entered the case in December as an amicus to clear up questions at stake relating to the U.S. interests. During oral argument last September, TEPCO's counsel had suggested that the U.S. government's interests favored dismissal of the case in preference for a Japanese forum, consistent with a general policy of centralization of claims for nuclear third party liability in the country in which an accident has occurred. The panel seemed skeptical about this suggestion. In fact, though the U.S. government's brief was in support of neither party, it urged deference to the decision below, stating "[t]he United States has no specific foreign policy interest necessitating dismissal in this particular case." In light of this development, the court granted both parties an opportunity to submit supplemental briefs in response and has not yet issued an opinion.

The U.S. government's brief walks a fine line, at times reading more like a diplomatic statement than a legal argument, extolling Japan as a "valuable partner" and "one of the United States' most important economic partners and strategic allies." Still, it notes that the Japanese compensation system is not "exclusive on its own terms," and that the court below could have reasonably concluded that an interest in "providing U.S. service members a U.S. forum for their claims" outweighed the interest in resolving all claims in Japan.

The government of Japan's amicus brief, filed before that of the United States, takes a stronger stance, urging the court to dismiss the claims on grounds of international comity. The comprehensive compensation system enacted by the Japanese legislature is sufficient to address all claims arising from the disaster, it argues, and this litigation could be "highly corrosive" to that system:

U.S. courts should not undermine the carefully calibrated public policy reflected in the legislation passed by the Japanese Diet establishing the nuclear accident compensation system. The irony of the situation is that this U.S. lawsuit against TEPCO is possible only because the Government of Japan, as part of its compensation system, ensured TEPCO's solvency, including by providing ongoing funds for damage payments.

The panel will be required to weigh these national interests in its international comity analysis, but there are other factors to consider. In its brief, TEPCO argued four separate grounds for dismissal—two aimed at attacking the forum, and two at attacking the underlying tort claim as either non-justiciable or barred by a defense. General Electric (GE), a defendant in the class action but not a party to the appeal, filed an amicus brief suggesting an additional jurisdictional barrier: the Convention on Supplementary Compensation for Nuclear Damage (CSC). If the 9th Circuit panel finds any of these five arguments compelling, it may direct the district court to reconsider TEPCO's motion to dismiss.

Please read full by Emma Kohse at: https://www.lawfareblog.com/us-government-supports-lower-court-decision-navy-members-fukushima-suit-can-proceed-united-states