A recent ruling in Cooper v. Tokyo Electric Power Company, No. 12-CV-3032, S.D. Cal., Oct. 28, 2014, one of three lawsuits  filed in the United States related to the 2011 incident at the Fukushima-Daiichi nuclear power plant, highlights gaps in the application of methods for managing nuclear liability and the need for global expansion and strengthening of those methods.
Nuclear Liability Laws and Conventions
Claims involving injuries from a nuclear incident in the United States are governed by the Price Anderson Act, 42 U.S.C. § 2210(n)(2), which establishes a regulatory/liability management scheme for nuclear power in the United States. Other countries with commercial nuclear power facilities, including Japan, have enacted laws adopting similar nuclear liability regimes. The main principles of these nuclear liability laws include:
Channeling liability to the operator of the nuclear facility where an incident occurs;
Strict (no-fault) liability;
Limits on liability and/or government participation in funding liability in extraordinary circumstances;
Mandatory insurance for operator's liability;
Consolidation of claims in the jurisdiction where the incident occurs; and
Allowing for relief for all those impacted by the incident, regardless of citizenship or residence.
Due to their proximity, countries in Europe recognized the need for consistent laws managing nuclear liability, and were among the first nations to enter into international conventions for this purpose. Members of these conventions agree to abide by the principles of nuclear liability regimes and to enact laws adopting these principles in their own countries. The Convention on Third Party Liability in the Field of Nuclear Energy (Paris Convention) and related supplements are open to countries that are members of the Organization for Economic Cooperation and Development (OECD), and to other countries with the approval of all other parties. The Vienna Convention on Civil Liability for Nuclear Damage is open to all countries that are members of the United Nations. The Conventions, along with a joint protocol – the 1988 Joint Protocol Relating to the Application of the Vienna Convention and the Paris Convention - linking the two Conventions, provide for consistent handling of responsibility a nuclear incident, even if an incident occurs in one country, but affects residents in other countries. Additional information regarding which countries are parties to, have signed and/or ratified the conventions, is available by clicking here.
However, the United States and Japan, and other countries with commercial nuclear power are not parties to the Conventions or the Joint Protocol. Nuclear industry suppliers and designers doing business with operators in countries that are not members of the Conventions have relied upon nuclear liability statutes in those countries, and on contracts and insurance to manage their liability. In 1997, the International Atomic Energy Agency created the Convention on Supplementary Compensation for Nuclear Damage (CSC) to further encourage more uniform global management of nuclear liability and consistent nuclear liability laws. To have official force and effect, the CSC requires ratification by five countries with collectively a minimum installed nuclear capacity of 400,000 MWs of thermal power.
The CSC's goal is to establish treaty relations between countries that belong to either the Vienna or Paris Conventions and CSC countries, and increase the amount of compensation available for nuclear incidents through defined contribution from participating countries. Japan was not part of any convention at the time of the Fukushima-Daiichi incident. Japan's legislature recently passed a law permitting it to ratify the CSC. It will join the United States, Romania, Argentina, and Morocco, and the United Arab Emirates as CSC ratifying countries. Japan's participation will trigger the CSC's entry into force.
Cooper v. Tokyo Electric Power Company
In 2012, United States sailors and their families filed an action in the Southern District of California against Tokyo Electric Power Company (TEPCO). The plaintiffs allege injuries resulting from the sailors' exposure to radiation from Fukushima-Daiichi. The sailors had been aboard the USS Ronald Reagan off the coast of Japan when it was sent to the region to provide assistance in the aftermath of the Great East Japan earthquake and tsunami. In October 2014, the court issued an opinion which denied TEPCO's motion to dismiss the case on forum non conveniens and international comity grounds. TEPCO has moved for reconsideration or, alternatively for certification of interlocutory appeal of the court's opinion. Briefing is scheduled to be completed by January 29, 2015.
Regarding forum non conveniens, the court determined that it would be more convenient for the parties to litigate in a United States court. Notably, as to the factor concerning familiarity with governing law, the court found, "TEPCO does not suggest at any point that Japanese law would govern the dispute if the Court retained jurisdiction. In all likelihood, the Court would be applying some version of U.S. law, be it maritime law, federal common law, or California state law." Cooper, No. 12-CV-3032, slip op. at 28 (S.D. Cal. Oct. 28, 2014).
As to dismissal on international comity grounds, the court considered arguments based on Japan's nuclear liability law and on the United States' participation in the CSC that all claims for relief arising from the Fukushima-Daiichi incident should be tried in the same court in Japan, that Japanese law provides an effective system for compensating all individuals harmed by the incident, and that all liability for the incident is channeled through TEPCO. The court rejected reliance on the CSC because it has not yet been ratified, and found that the United States had a slightly stronger interest in the matter. The court also granted plaintiffs' motion to add four defendants who were "responsible in part for the design, procurement, maintenance, management, or servicing" of the facility.
If it stands, the ruling in Cooper may provide an impetus to additional countries to participate in the CSC or other conventions. Although laws addressing nuclear risk in both Japan and the United States provide for liability channeling and consolidation of claims in a court where a nuclear incident occurs, the ruling in Cooper leaves open the possibility that a lawsuit could be tried in a court outside the country where the incident occurred, and could be decided using state common law, instead of nuclear liability laws. In light of this ruling, those in the nuclear industry should work to further unify and harmonize global nuclear liability regimes. Ratification of the CSC by additional countries is an efficient and effective way to accomplish this goal.