Casebook

Citizens’ Committee on the Kobe Coal-Fired Power Plant v. Kobe Steel Ltd.

Taking on a Japanese Coal-Fired Power Plant to Protect the Right to Live a Peaceful Life

Credit: Japan Beyond Coal

Casebook Info

Residents of Kobe, Japan, took matters into their own hands when two new carbon-fired plants were slated for construction in their city. Citing air pollution, extreme weather events, and the risks of global climate change, the plaintiffs – including grandparents litigating on behalf of their grandchildren –sued the power plants, invoking their right to live a peaceful life. They argue that this includes the right to a healthy, clean, and stable environment.

  • Year Filed 2018
  • Year of Most Recent Ruling 2023
  • Year of Final Ruling Pending
  • Jurisdiction Japan
  • Court Name Osaka High Court
  • Primary Focus Mitigation
  • Ruling On Merits
  • Plaintiff(s) 31 families of Kobe, Japan
  • Respondent(s) Kobe Steel Ltd. and subsidiaries (Kobelco Power No.2 Inc., Kansai Electric Power Co., Inc.)
  • Outcome N/A
  • Organizational leader of the litigation Citizens’ Committee on the Kobe Coal-Fired Power Plant
  • Link to the decision/ruling

Background

When word emerged that the city of Kobe, Japan had authorized the construction of two new coal-fired power plants, 31 resident families made it their goal to halt the plants’ construction and push for more ambitious climate action in Japan.

In September of 2018, these plaintiff families – many of them including multiple generations of family members – sued Kobe Steel Ltd., the owner and operator of the power plants, in addition to two of its subsidiary corporations. The plaintiffs sought an injunction to prevent the construction and operation of Kobe Steel’s new coal-fired units, which the plaintiffs allege will be responsible for 0.6% of Japan’s annual CO2 emissions from energy. 

Citing the region’s already-poor air quality and climate change concerns, the plaintiffs allege violations of their personal rights to clean air, a healthy environment, and a stable climate. They argue that all of these rights derive from the right to a peaceful life, a concept found in Japanese “personal rights” constitutional jurisprudence. The plaintiffs also allege that plants’ emissions will damage their lives, health, and livelihoods in the long-term. In many of the residential areas impacted, the plaintiffs note, air quality standards were already being violated prior to the plants’ construction. 

Credit: Japan Beyond Coal

On the basis of these rights violations and the “social unacceptability” of the plants’ effects, the plaintiffs assert that operation of the new coal-fired units is unlawful. In support of this argument, the complaint cites international as well as domestic law. Japan has passed regulations aiming for the 80% reduction in GHG emissions required by the Paris Agreement targets, but the plaintiffs contend that such promises are inconsistent with policy decisions and permissions. Given the completed construction of new coal-fired plants, the plaintiffs anticipate that 300 million tons of CO2 will be emitted by coal-fired power in 2030 alone. 

“This suggests,” the plaintiffs argue, “that the construction of new coal-fired units is unacceptable at both international and national levels in order to hit the reduction targets.” In line with this argument, the plaintiffs also assert that the Japanese government has taken actions that conflict with Japan’s 2030 and 2050 climate targets.  

The Kobe District Court’s 2023 Judgment –

In March 2023, half a decade after the suit’s initiation, the Kobe District Court rejected the plaintiffs’ request for an injunction preventing the Kobe plants’ construction and operation. 

The Court considered first the plaintiffs’ claims relating to air pollution, considering whether air pollution caused by the power plants would violate either the personal rights of citizens or the right to a peaceful life. For those citizens living far from Kobe, the Court found that there could be no violation to their rights, since any impact on air quality would be diffuse and mitigated by distance. 

For those plaintiff citizens living closer to Kobe – and the power plants in question – the Court considered whether there was a sufficiently “concrete danger” posed to their rights and concluded that in fact the power plants’ environmental assessment demonstrated no likelihood of a “concrete danger.” The Court found this despite the fact that one key pollutant (particulate matter from fine particulates) had been omitted from the environmental assessment report. The Court thus held that there was no threat of violations to the plaintiffs’ rights to life, bodily integrity, and health. Regarding the right to a peaceful life, the Court, in finding no violation thereof, likewise held that the plants posed no concrete danger and stated that economy-limiting injunctions could not be granted on the basis of the plaintiffs’ insubstantial emissions anxiety


The District Court was similarly unconvinced by the plaintiffs’ claims relating to climate change. Despite acknowledging that climate change is likely to occur, that the plaintiffs may suffer damage, and that the plants’ emissions could potentially aggravate climate change, the Court nonetheless concluded that the carbon-fired plants posed no concrete danger to the plaintiffs’ fundamental rights. In response, the plaintiffs argued that the existence of a “concrete danger” should be determined by considering international emissions reduction targets. The Court disagreed, ruling that the danger of global warming as a whole could not be understood as damage to each plaintiff specifically, particularly because the extent, severity, and location of potential climate change harms remain speculative. It acknowledged the potential “abstract danger” of emissions aggravating global warming but found this impact insufficiently concrete. Moreover, the Court opined that the operation of the Kobe Steel coal-fired plants would not immediately render Japan’s achievement of its reduction targets impossible. 

Lastly, stating that plaintiffs’ anxiety regarding climate change was overzealous given the speculative nature of future climate harms, the Kobe District Court found that the right to a stable climate was not legally cognizable or protected. The Court noted that even if the right was protected and the plaintiffs’ concerns were legitimate, however, the responsibility for climate harms could still not be unilaterally attributed to the new Kobe Steel coal-fired plants in question. 

Following the District Court’s denial of injunctive relief, the plaintiffs appealed the judgment in April 2023. The matter is now pending before the Osaka High Court. 

  • 2 years old age of the youngest plaintiff
  • 86 years old age of the oldest plaintiff
  • 6,920,000+ tons of CO2 per year how much carbon the new coal-fired units are estimated to emit annually

Strategies

Challenging a fossil fuel project

Challenging a fossil fuel project

The plaintiffs’ emphasis on Kobe Steel, Inc.’s new power plants allowed them to raise issues related to global climate change whilst capitalizing on the benefits of a more targeted dispute. The fossil fuel project allowed for a higher likelihood of satisfying the “concrete damage” requirements through more particularized, non-speculative harms. Though the case remains pending before the Osaka High Court, this strategic decision evidently impacted the judgment of the District Court, which interpreted plaintiffs’ claims separately depending on the plaintiffs’ proximity to Kobe and the power plants in question. Where courts place substantial weight on the abstraction, certainty, or specificity of climate-related harms, it may be important to focus claims on specific instances of misconduct or rights violations. 

Applying a developed body of law in the context of climate change

Applying a developed body of law in the context of climate change

The plaintiffs’ case is particularly noteworthy because it marks the first time a Japanese court has ruled on the right to a healthy and peaceful life, which derives from domestic a “personal rights” jurisprudence with roots in tort and constitutional law. The plaintiffs here have argued that this right necessarily implies the existence of other rights – namely, the right to a healthy and clean environment and the right to enjoy a stable climate. This argument seeks to expand the meaning of “personal rights” under Japanese law and mandate a new emphasis on environmental and environment-related health risks. The Osaka High Court’s ruling, once determined, may have a significant impact on the future of climate-related litigation in Japan.

Takeaways

Utilizing a variety of legal pathways and suing in parallel with other actors may increase the likelihood of a favorable verdict. Plaintiffs here brought civil claims against Kobe Steel, Inc., but in the closely related case Citizens’ Committee on the Kobe Coal-Fired Power Plant v. Japan, a similar set of plaintiffs brought administrative law claims against the Japanese government regarding the same two coal-fired power plants. That case was appealed twice before receiving an unfavorable final verdict in 2023, but so long as this case remains pending, there remains a chance these civil claims will compel the court to take action where the administrative claims did not.

Terms

Direct greenhouse gas emissions (GHG Emissions)

Direct greenhouse gas emissions are those that are emitted “from sources that are owned or controlled by the reporting entity.”

Fossil fuel infrastructure

The basic organizational and physical facilities and structures needed to produce and distribute fossil fuels, which include coal, oil, and gas.

Fundamental rights

Fundamental rights are usually, though not always, constitutional in nature. A fundamental right is “a right that is considered by a court. . . to be explicitly or implicitly expressed in a constitution,” thus requiring a high degree of protection.

Greenhouse gas emission reduction target

A greenhouse gas emission reduction target provides the amount that greenhouse gases must be reduced in a particular area (usually within the boundaries of a particular state or sub-state) by a particular date.

Indirect greenhouse gas emissions

Indirect greenhouse gas emissions are those that are emitted as a result of “activities of the reporting entity, but occur at sources owned or controlled by another entity.”

Injunction

Refers to an order issued by a court requiring a party to do something or to refrain from doing something.

Paris temperature goal

The Paris temperature goal refers to the goal set by the Paris Agreement to “hold[] the increase in global average temperature to well below 2˚C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5˚C above pre-industrial levels, recognizing that this would significantly reduce the
risks and impacts of climate change” (Article 2(a))."

Right to a Healthy Environment

The right to a healthy environment, typically provided by a constitution or international treaty, generally entitles people to live in a clean, safe, and sustainable environment that supports their health and well-being.

Standing

Standing refers to the plaintiff’s “capacity to bring [a law] suit in court.” If a plaintiff doesn’t have standing, a court won’t review its claims. If a plaintiff does have standing, a court will review its claims, assuming that there are no other issues that prevent the court from hearing the case.

Tort law

Tort law refers to the branch of law dealing with civil liability for wrongs committed that result in loss, injury, or harm.