In-Depth Look: Youth Climate Lawsuit Takes on Japan's Power Industry

On August 6, a group of youth filed a climate accountability lawsuit with the Nagoya District Court against 10 Japanese energy companies. Collectively called Youth Climate Case Japan, the group consists of 16 individuals, aged between 15 and 29, who hope that the lawsuit will demonstrate the urgency of addressing climate change and that it will “lead to greater understanding and empathy”.

Background to Japan's Youth Climate Lawsuit

In the official complaint, the plaintiffs' legal representatives highlight the severe climate impacts experienced in Japan. The document refers to Germanwatch’s Climate Risk Index, where Japan ranked first in 2018 as the country most affected by climate disasters. Since then, Japan has consistently ranked among the top countries. The risk of climate disasters in Japan has manifested as extreme temperatures, rising sea levels, wildfires, wind and flood disasters, agricultural and ecological droughts, heavy rainfall, cyclones, and typhoons. Each of these climate impacts is discussed in detail in the complaint, with data backing up that the specific occurrences in different regions in Japan are inextricably linked to human-induced climate change.

The lawsuit furthermore relies on the Intergovernmental Panel on Climate Change 2018 Special Report on Global Warming of 1.5°C, reiterating that even if we manage to limit global warming to 1.5°C above pre-industrial levels, there will still be detrimental impacts on our environment and ecosystems. Should the global temperatures rise beyond 1.5°C, extreme events such as those already experienced by Japan would be exacerbated even further. Yet, in order to limit the rise in global average temperature to 1.5°C, a global reduction of CO2 emissions by 48% by 2030 and 65% by 2035 is necessary, compared to 2019 levels.

According to the Japanese Environment Ministry, Japan emitted 1.135 billion metric tons of carbon dioxide in the 2022/2023 year. This constitutes a 2.5% reduction compared to the previous year.

Japan’s Decarbonisation Strategy

Since 2020, Japan aims to be carbon neutral by 2050. To achieve this goal, the Japanese cabinet adopted the ‘green growth strategy’, which represents the country’s dual goals of economic growth and environmental protection. The green growth strategy focuses on 14 sectors, including 4 that are energy-related (renewables, hydrogen and ammonia fuels, next-generation heat energy, and nuclear power). Moreover, Japan’s 2050 net-zero commitment has been included in the Act Partially Amending the Act on Promotion of Global Warming Countermeasures, in order to “enhance the continuity and predictability of policies” to achieve net zero. According to Japan’s Nationally Determined Contribution, Japan is committed to a 46% reduction in emissions by 2030, compared to the country’s 2013 levels, although it aims for a 50% reduction.

Japan implemented the Green Transformation Basic Policy in February 2023. Climate Action Tracker notes that this policy seems focused more on energy security and the economy than on actual decarbonisation efforts. The policy promotes ‘clean coal’ technologies such as carbon capture and storage (CCS), instead of renewable energy, a stance inconsistent with limiting global warming to 1.5°C. The policy has raised significant concerns about its effectiveness in achieving Japan’s climate commitments.

Legal Analysis

The lawsuit puts forward a variety of arguments, some of them based on climate litigation precedent from across the world, while others are novel arguments. Even the way in which the plaintiffs and their experiences with climate change are described is unprecedented, as you will see below.

• Plaintiffs

Although all 16 plaintiffs are residents of Japan, their experiences with climate impacts across the world are cited in the complaint. Due to the specific circumstances in which they find themselves, it is stated that they are participating in this lawsuit “to protect themselves and future generations from human rights violations”. There is also a climate justice dimension to the motivation behind the lawsuit since the plaintiffs feel a sense of responsibility by residing in a developed economy to prevent devastating climate impacts elsewhere.

Some plaintiffs cite personal experiences with climate disasters, such as flooding. They also refer to fears caused by extreme weather events. Interestingly, the lawsuit also refers to the plaintiffs’ experiences abroad, where they witnessed typhoons (in the Philippines) and wildfires (in the United States, Germany, and Australia). Witnessing these events invoked an array of feelings in the plaintiffs, including “a sense of injustice”, and “profoundly frighten[ened]”. The plaintiffs are not alone in these feelings, as the lawsuit cites a Dentsu Research report that found that 72.6% of people in Japan experience signs of anxiety about climate change.

• Defendants

The defendants in the lawsuit are 10 Japanese energy companies: (1) JERA Co., Inc; (2) Tohoku Electric Power Co., Inc; (3) Electric Power Development Co., Ltd; (4) Kansai Electric Power Co., Inc; (5) Kobe Steel, Ltd; (6) Kyushu Electric Power Co., Inc; (7) Chugoku Electric Power Co., Inc; (8) Hokuriku Electric Power Co., Inc; (9) Hokkaido Electric Power Co., Inc; and (10) Shikoku Electric Power Co., Inc.

Contrary to other G7 countries, which are phasing out coal-fired power plants by 2038, the 10 defendants in the Youth Climate Case Japan are all set to continue to use their power plants, which are very carbon-intensive. The defendants operate numerous thermal power plants across Japan, primarily fuelled by coal and natural gas, contributing significantly to Japan’s greenhouse gas emissions. For 2019, the lawsuit argues that the defendant’s collective emissions accounted for about 33% of Japan’s total CO2 emissions (this figure includes the defendants’ Scope 3 emissions). About 40% of the defendants’ emissions originate from their power generation activities.

According to the lawsuit, the defendants have all individually acknowledged the need to reduce CO2 emissions. Some of the defendants have already set emission reduction targets, but these are argued to be “unclear and inadequate”. Based on their planned emissions for 2030, their targeted reductions will not meet the required emission limits. The plans also rely on the use of CCS and hydrogen-ammonia co-firing, both technologies that plaintiffs claim are not yet commercially available at the scale required and are not yet as effective as claimed. All but one defendant failed to include interim targets or measures for 2035, despite the IPCC reiterating that year’s importance in reaching the 1.5°C reduction. Overall, even if the defendants’ reduction plans were to be fully implemented, they would still not achieve the reduction required for the 1.5°C target.

Defendants furthermore do not sufficiently consider the Scope 3 emissions resulting from the power they sell to consumers, despite all defendants being involved with energy retail companies, through affiliation or subsidiary relationships. The plaintiffs therefore argue that the defendants should be able to set decarbonisation policies that affect the sale of energy too. The lawsuit thus addresses not only their emissions resulting from the power plants but also the Scope 3 emissions from the sale and use of the energy.

• Duty of Care

The Youth Climate Case Japan is a tort law case, brought under Article 709 of the Japanese Civil Code. Under Article 709, a tort is committed when one intentionally or negligently infringes the “rights or legally protected interests” of another. It is argued that Article 709 of the Japanese Civil Code is the equivalent of the Dutch unwritten duty of care, on which the Dutch climate litigation cases against the government (Urgenda) and Shell were based. Relying also on Japanese precedent, the plaintiffs argue that “living a peaceful, comfortable, and healthy life” is the minimum standard that they should be able to rely on and that any violation of that standard should be considered a tort.

• Human Rights Violations

The lawsuit alleges that the plaintiffs are deeply affected by climate change in their daily lives. Overall, it is argued that all the described climate impacts combined are infringing on the plaintiffs’ human rights to life, physical safety, and self-determination.

The right to life is being violated through the intense heat, which can cause heatstroke and other life-threatening conditions. Increased risk of extreme weather events and natural disasters further risks the right to life, as well as other fundamental rights protected under the Japanese Constitution (including the Article 25 right to health and the Article 29 right to property).

Increasing temperatures are affecting their cognitive abilities, and their ability to exercise, and are increasing their utility bills. Moreover, there is a significant impact on the plaintiffs’ mental state. In addition to their feelings of climate anxiety, the lawsuit also puts forward the argument that in the absence of viable sustainable solutions, they are forced to contribute to CO2 emissions on a daily basis. It is argued this violates the plaintiffs’ right to self-determination, which is protected under Article 13 of the Japanese Constitution. In fact, as per Japan’s Basic Environment Law (Article 9), citizens are actually under a legal obligation to “reduce the environmental burden associated with their daily lives”. The lawsuit even goes as far as arguing that the loss of Japan’s four distinctive seasons and biodiversity can cause such mental distress so as to amount to a human rights violation. This right is also said to be violated due to their limited ability to freely participate in extracurricular activities and hobbies.

• The Legal Obligation to Reduce Emissions

In order to hold corporations accountable for torts that are connected to human rights violations, the lawsuit has to establish that a legal obligation exists for companies to reduce emissions to prevent human rights violations. The plaintiffs refer to the Brazilian Supreme Court, which in 2022 said that the Paris Agreement should be considered an international human rights treaty, because “human rights cannot exist on a destroyed planet”. As per the Paris Agreement, global CO2 emissions have to be reduced by 45% compared to 2010 levels by 2030 in order to achieve the 1.5°C target. The Paris Agreement also called for a phase-out of unabated coal-fired power by 2030. Given the urgency of emissions reduction and the huge role played by the defendant companies, the plaintiffs argue that the IPCC targets of 48% emissions reductions by 2030 and 65% by 2035 should be a minimum legal obligation, from which private companies should not be exempt.

Extending human rights obligations to private companies is key. It is one of the key points against which Shell appealed in the Dutch case of Milieudefensie v. Shell since human rights traditionally should be guaranteed by the government. In particular, Shell argued that it is the Dutch government that entered into the Paris Agreement, not Shell, and therefore Shell is not bound by the Paris Agreement. The plaintiffs in Youth Climate Case Japan are now prepared for these counter-arguments, and they pre-empt them as follows.

Primarily, it is argued that the defendants play a vital public role through their commercial activities, making them part of the “national infrastructure”, which has an inherently public character. As such, the defendants’ contravening emission reduction targets should be considered illegal conduct. To further cement this argument, plaintiffs refer to the United Nations Guiding Principles (UNGPs), the OECD Guidelines for Multinational Enterprises, and the United Nations Global Compact to demonstrate the international consensus on private actors’ environmental responsibilities, even if a direct, binding legal obligation does not exist. All defendants have acknowledged the applicability of the UNGPs to their operations. Three of the defendants endorsed the United Nations Global Company, even further elevating their responsibilities.

Such an obligation on private actors established through international consensus was first confirmed by a Dutch court in Milieudefensie v. Shell. There, the unwritten standard of care was interpreted as an obligation to exercise reasonable care as demanded by the needs of society. Drawing the parallel with the “legally protected interests” under Article 709 of the Japanese Civil Code, the plaintiffs argue that a similar conclusion can be drawn under Japanese domestic law. Additionally, several references are also made to Japanese domestic law to establish an obligation on private entities to limit and reduce their CO2 emissions.  

As such, it is argued that the defendants are indeed under a legal obligation to reduce their emissions in order to limit the average global temperature rise to 1.5°C.

• Joint and Several Liability

A final point made in the lawsuit that deserves highlighting is that the plaintiffs claim joint and several liability, which they do under Article 719(1) of the Japanese Civil Code. Under this article, where a joint tort is committed by more than one person, they will be jointly and severally liable, even if it cannot be said for certain which of the defendants actually is responsible for the damage. Joint and several liability is a legal concept that arises when multiple parties are responsible for causing harm or damage. Under this principle, each party involved in the wrongdoing can be held independently liable for the entire amount of damages.

The plaintiffs show that the defendants, through the Federation of Electric Power Companies, the Low-Carbon Society Council for the Electricity Industry, and other cooperations established among the defendants, are actually collaborating in order to maintain their thermal power plants. Therefore, if such behaviour contributes to the lack of progress towards emission reduction targets, this should be considered an unlawful act that they are all jointly committing, hence the claim for joint and several liability.

Demands

The plaintiffs are looking for the court to impose emission reduction obligations for 2030 and 2035 respectively, in line with the IPCC's envisioned targets. They argue that they cannot wait until 2030 or 2035 to see how the emission reduction plans of the defendants play out because by then it will be too late to act. The youth is and will continue to be disproportionately affected by climate change impacts, and they do not wish to wait until it is too late.

Despite looking for the joint and several liability designations, the plaintiffs are not seeking damages. Establishing this designation could significantly aid in future climate litigation if future plaintiffs do decide to seek damages.