U.S. Government Supports Lower Court Decision that Navy Members’ Fukushima Suit Can Proceed in United States via Lawfare (blog)


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.



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