Fukushima and Foreseeability

If we could know the future, would we act any differently?

Today we have untapped and largely unrecognized capabilities that can help us to foresee. We have new and powerful computers. There are new potentials in social media, in particular the transformational power of guided “smart” narratives. But do we truly want to see? That is the question. What might be the consequences if our relationship to the future were to shift? 

The nuclear catastrophe which resulted from the earthquake and tsunami at Fukushima on March 11, 2011 helps us to explore these issues, because the tragedy continues to unfold, even at this moment, as the radioactive flotsam from Fukushima rolls out across the Pacific toward Hawaii, California, Oregon, Washington, Alaska, and Canadian shores.

Most legal systems recognize the doctrine of negligence, and one of its key elements is the principle of “foreseeability.” Before a cause of negligence can be recognized, plaintiffs must show a breach of a clear duty of care, that the accident which occurred was “foreseeable,” and the negligence was the proximate or “but for” cause of the accident. In plain terms, the accident would not have occurred without it. 

There are several potential defendants in the Fukushima catastrophe. They are: the utility, TEPCO; the foreign manufacturer of five of the six Mark 1 reactors; and the local and central governments which approved the installation in an area known to be vulnerable to earthquakes and tsunami. The issue of foreseeability in Fukushima can be subdivided into: 1. Was the original accident and its consequent loss of life foreseeable? and 2. Will the ongoing dumping of radioactive waste into the ocean at Fukushima cause long term damage not only in Japan, but also to other human populations, property, and the international environment; and were4 these harms foreseeable?

On February 1976, three nuclear scientists who helped to design the Mark 1 resigned because of their extreme lack of confidence in the reactor’s ability to contain pressure in case of a meltdown, the precise situation that occurred at Fukushima. From a legal perspective it is very difficult to run the clock backward thirty-six years to establish present liability solely upon this evidence. The practical and interesting question is: how might our new oracular tools and methods apply to the present hazards, especially since the daily radioactive discharges from Fukushima are likely to penetrate food chains within the Pacific Ocean and arrive on foreign shores. Should these damages be deemed foreseeable in a legal sense?

Let us consider a specific example and place ourselves in the position of Neil Abercrombie, the Governor of Hawaii. The Japanese Atomic Agency has forecast that the debris is likely to reach Hawaii sometime in 2013-2014. If it does, Hawaiii will have a gigantic clean up problem. Worse, Hawaii’s local fishing and tourist industries could be seriously damaged, and it is possible that Hawaii residents will face a serious health hazard from eating fish in 5, 10, or 15 years from now. Should Governor Abercrombie do anything today? Is it possible for him to foresee these future dangers? Is it acceptable for him simply to wait for the injuries to occur? Does the Governor have a legal responsibility to inform himself and to prepare the state? What about the governors of other Pacific coastal states? To answer these questions we must explore several critical issues:

  • On what does foreseeability depend? Although the future is uncertain, my research suggests that many events can be forecast with high probability, and we can, to a surprising extent, influence these probabilities by our actions. We have a wealth of tools such as scenario planning, risk analysis, discovery engineering, collaborative innovation, collaborative guided automation, and other techniques, which are not being systematically applied to forecasting significant public hazards such as international contamination from Fukushima. Moreover, many psychological studies confirm that what we see is highly influenced by our proclivities and wills: In the end, we see what we want to see.
  • If foreseeability is a learnable skill, what is the duty of care of public officials to acquire this skill or at least to locate predictive resources? To gain an edge Governor Abercrombie need not look very far. He has easily available the work of Igor Mezic, a professor of mechanical engineering at the University of California in Santa Barbara, one of the world’s leading flow experts. Professor Mezic accurately documented the pathway of the British Petroleum Gulf oil spill, weeks in advance of its impact on the Gulf state coastal areas, when the responsible U.S. government agencies, NOAA, the U.S. Coast Guard, and the Navy, simply got it wrong. Unfortunately Dr. Mezic’s urgent warnings were ignored and huge preventable damages occurred. I believe Governor Abercrombie has a public duty to inform himself, and if possible, to prepare his state for an intelligent emergency response.
  • Who should bear the legal burden of scientific uncertainty? No matter how powerful, our predictive tools will always be imperfect. We are always balancing uncertainties, probabilities, and risks. In developing his strategy Governor Abercrombie can cite an important Japanese legal innovation.

In the Yokkaichi air pollution case decided on July 24, 1973, six petrochemical companies (the same number as the nuclear power plants at Fukushima) were held liable for causing the pulmonary illnesses (asthma, bronchitis, emphysema) of local residents. When addressing the issue of the defendants’ liability, the court held that plaintiffs had produced sufficient evidence of foreseeability, causation, and the breach of a duty of care to justify shifting the burden of proof to the six companies, which the court held were collectively responsible. By the same reasoning the Yokkaichi case and other precedents suggest that TEPCO and the power plants, which are responsible for daily radioactive discharges, have a duty to foresee, and therefore must bear the burden of proving that these radioactive discharges are not the causes of future injuries. It is astonishing what people will be able to foresee when there are legal incentives upon them to do so.

My research and experiments suggest that the past, present, and future “interpenetrate” in odd and subtle ways. We are not merely pawns of an implacable fate. We have more leverage than we suppose; perhaps far more leverage than we dare to suppose. The good news is the same powerful tools that can help us to foresee the future can also be used to devise ingenious ways to help us to avoid or mitigate its highest harms.

© Julian Gresser, August 2012, All Rights Reserved; Julian Gresser is an international attorney, inventor, and Japan specialist. His first book, Environmental Law in Japan, MIT Press, 1976, examined the history of Japan’s legal innovations in protecting the environment. His forthcoming book, Piloting Through Chaos-The Explorer’s Mind (Bridge 21 Publishing, March 2013) offers an original way to explore and to engage with the world. See: www.explorerswheel.com; published in Geopolitical Corner, New Concepts in Global Tectonics Newsletter, no. 64 September, 2012. www.ncgt.org 100, as March 2011 Great East Japan Earthquake: Fukushima and “Foreseeability.”

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