Nuclear redress will never approximate losses

by Chico Harlan

The Washington Post

It was 15 months ago that the Fukushima No. 1 nuclear plant suffered three meltdowns and contaminated a broad circle of countryside and left hundreds of thousands of people without homes, jobs or both.

But for all the damage and despair it wrought, the disaster so far has unfolded without one conventional element: a widespread and contentious legal fight by those who say they should be compensated for their losses.

Victims of the worst nuclear crisis in a quarter-century have filed roughly 20 lawsuits against Tokyo Electric Power Co., according to the utility. That compares with the several hundred suits filed against BP within weeks of the 2010 Gulf oil spill, including the near-finalized settlement of a class-action suit that will pay 120,000 plaintiffs upward of $7.8 billion. BP also paid out some $6.2 billion to victims via a neutral claims settlement process, administered by a lawyer appointed by the Obama administration.

Victims and lawyers in Japan say the dearth of nuclear-related suits reflects both a national mindset — a distaste for confrontation — and a stunted judicial system that doesn’t allow for class-action cases or punitive damages. Japanese speak of the court system as more likely to deliver frustration than vengeance, and jobless evacuees who urgently need money have little appetite for long trials with uncertain outcomes.

Instead, the vast majority of victims of the Fukushima crisis turn to one of two other options, one led by Tepco, the other by the central government — the two institutions most often blamed for the disaster.

More than nine of 10 evacuees who say the disaster harmed them have taken their claims directly to Tepco. Those who don’t want to deal with Tepco or who reject the company’s compensation offer can head to a government-created mediation center, which was established by law in the aftermath of the nuclear accident.

Neither route, legal experts say, offers victims much leverage. Typical of a country that sees itself as uniformly middle-class, payouts are adequate but rarely ample. Tepco’s average payout so far to individuals is about ¥1.92 million ($24,000), according to company data. That figure, though, is certain to grow as claimants come back a second and even third time with further evidence of damage, including property losses.

Without the threat of legal action, said Hiroyuki Kawai, a Tokyo-based lawyer handling one of the few lawsuits filed against Tepco, “the state and companies can take advantage of victims.” Tepco spokesman Hiroki Kawamata said that is not the case.

For victims who do want to file lawsuits, options are limited. That’s because of a special nuclear accident law, drafted 51 years ago, that limits liability to the atomic plant operator, preventing claimants from targeting, say, reactor manufacturers, including Toshiba or General Electric. The law also prevents individuals from being held liable, effectively blocking suits in this case against executives or workers at Tepco.

The law, experts say, is designed to “maintain order” during mass-scale nuclear disasters. But it also reinforces a feeling of nationwide blamelessness, a notion echoed by Prime Minister Yoshihiko Noda in March, when he said no individuals should beheld liable for the crisis.

“I believe everyone has to share the pain of responsibility,” Noda said.

Because most nuclear victims head first to Tepco, the utility has dominated the redress process.

Tepco has agreed to give anyone who at the time of the accident was living within 20 km of the plant — the forced-evacuation zone — monthly payments of between ¥100,000 to ¥120,000 ($1,250 and $1,500) as compensation for “noneconomic damage,” or mental anguish. No end date has been set for the payments, a company spokesman said.

Evacuees may also be reimbursed for hotel stays in the aftermath of the crisis — but only up to ¥7,900 ($100) per night (the company hasn’t specified a limit on the number of nights). One evacuee said he applied for reimbursement for three Geiger counters he purchased, receipts attached; Tepco reimbursed him for one.

“What a joke,” said Toshihiko Nakano, 54, a self-employed electrician who applied for some ¥8.64 million ($108,000) in business damages and was instead offered less than ¥160,000 ($2,000). Nakano said he’s considering going either to the mediation center or to court.

So far, almost 120,000 individuals have applied directly to Tepco for the initial round of compensation, filling out a claims form that was originally 60 pages long. The company has reached settlement agreements in 102,000 of those cases and has since sent out the second and third batches as well, covering additional damages. Tepco estimates it will be responsible, in the end, for at least ¥2.56 trillion ($32 billion) in compensation.

Lawyers who run the Dispute Reconciliation Committee, the government center that mediates between victims and Tepco, say they are counting on the company to satisfy most of the claimants, if only because the center could be “paralyzed” if too many come to it for help.

Already, about 500 victims a month come to the center, which has offices in Tokyo and Fukushima and settles between 30 and 70 cases a month. Officials expect it will take three to five years for most claims to be resolved.

The center — set up in September, around the time Tepco began sending out compensation forms — has tried to speed up the process by allowing its 200 mediators to handle cases by themselves, rather than with the three-member panels it originally used. But the average case takes five months, and officials fear that time frame will increase as the backlog grows. Only about 25 percent of victims who come to the center are represented by a lawyer.

“We are receiving so many pleadings from victims,” said Hiroshi Noyama, head of the center’s mediation office. “Of course the ideal situation is that Tepco pays enough compensation directly and solves the problem. But the reality is, numerous victims are dissatisfied with Tepco’s handling. And the situation is very troubling.”

Some antinuclear activists and lawyers say the government — which last month gave Tepco a ¥1 trillion ($12.6 billion) bailout, putting it under state control — has an incentive to collude with the utility to keep payments low. But so far, the mediation center’s recommended settlements — the payouts are still provided by Tepco — have been more generous than those recommended directly by the utility, according to officials at the center.

In only a few instances has a victim grown angry enough to launch a lawsuit.

In April, Tepco received a letter from a lawyer in Fukushima Prefecture. The letter, addressed to (then) Tepco President Toshio Nishizawa, described the evacuation of a chicken-farm worker from the mountain town of Yamakiya, about 40 km from the plant.

Mikio Watanabe lived there in a two-story house with Hamako, his wife of 39 years, who had grown up across the street. They had a greenhouse in the back and a karaoke machine in the living room.

Yamakiya was outside the government’s original evacuation zone, but more than a month into the crisis, that changed; the town had become a radioactive hot spot, and people had to leave. The Watanabes moved into an apartment in a city farther from the plant. The conditions were rough — they hated the tiny quarters and thin walls — and Hamako cried a lot, according to court documents and Watanabe’s own account. Hamako started taking sleeping pills. The chicken farm closed, and both lost their jobs. They still owed ¥11.2 million ($140,000) on the house.

On June 30, 2011, the couple went back to their old house for a day. They spent the night.

The next morning, Hamako went outside, poured gasoline on herself and lighted a match.

Mikio found her body.

The letter blamed Hamako’s suicide on the nuclear disaster. It blamed the disaster on Tepco. And it asked for about ¥58.4 million ($730,000) in compensation.

A Tepco lawyer, Masaki Iwabuchi, replied two weeks later.

“Regarding whether we are indebted to pay compensation,” the letter said, “we must first consider detailed health conditions that led to (Hamako’s) suicide. At this point we cannot give you an answer” on compensation. “If you can provide detailed documents, we will sincerely consider the case.”

Watanabe’s lawyer, Tsuguo Hirota, said recently that the response felt dismissive, particularly by the standards of a language in which little is said explicitly. Hirota advised Watanabe to try a rare tactic: They should go to court, he said, and make Tepco feel sorry. Watanabe agreed. “I can’t hold back my anger,” he said.

So on May 18, Watanabe filed a lawsuit at the Fukushima District Court blaming Tepco for his wife’s death and seeking ¥90.4 million ($1.13 million), including compensation for Hamako’s lost future earnings. The case, Hirota said, will take at least two years.

“As for our chances,” Hirota said, “that depends on how you define victory. One side of this lawsuit is, we know others in society are suffering. We want to appeal to society at large and show them people can speak up.”