Terutomo OHTA

The Japan Air Pollution Victims Association

From the time of Japan’s postwar reconstruction, the country experienced severe air, water, and other pollution in the course of urbanization and of rapid economic growth mainly in the heavy and chemical industries, which resulted in in widespread damage. As citizens’ anti-pollution campaigns sprang up around the country, pollution victims won a system for redress that was a kind of compensation program based on the polluter pays principle.

But in many ways this system is inadequate, for instead of achieving fundamental remedial measures for pollution, new kinds of pollution and health damage are spreading as air pollution and the damage it causes assume new forms. Further, colossal social costs have been incurred in trying to preserve the environment and overcome pollution, which illustrates the need to learn a lesson from harsh reality: Society suffers losses when it fails to prevent pollution.

Below is an overview of the system for pollution victim relief, and a description of the system’s problems.

1. Pollution-Related Health Damage Compensation Program (Health Compensation Law)

Article 13 of Japan’s Constitution declares the rights to life, liberty, and the pursuit of happiness, and respect for the individual. The Pollution-Related Health Damage Compensation Law provides for the compensation of losses due to health damage arising from pollution (Article 1, “Purpose”) on the basis of civil liability. It was enacted on October 5, 1973 and entered into force on September 1, 1974. Although in danger of repeal several times, it was amended on March 1, 1988, and remains in existence to this day.

1-1 Certification Requirements

To exclude people who do not fit clear categories, Article 2 establishes the three certification requirements of designated regions, exposure period, and designated illnesses. The government designated 41 regions where pollution of at least a certain extent arose and resulted in many illnesses (class 1 regions), and it certified as air pollution victims those people who had either lived or worked in those areas for at least a certain length of time and had contracted chronic obstructive pulmonary diseases (bronchial asthma, chronic asthma, pulmonary emphysema, asthmatic bronchitis, and their sequelae)

Victims seeking certification must apply in person, while prefectural governors or municipality mayors, who are empowered by the government to proxy administer the system, make their decisions after hearing the opinions of the certification screening committees. Certifications must be renewed every two or three years.

1-2 Payment of Compensation Benefits

Certified victims are paid seven kinds of benefits under Article 3: (1) Medical care expenses, (2) compensation for handicaps (compensation for lost interests), (3) compensation for survivors, (4) lump-sum compensation for survivors, (5) child compensation allowance, (6) medical care allowance (for hospital visits, etc.), and (7) funeral expenses. Additionally, Article 46 provides for pollution-related health welfare programs for (1) rehabilitation, (2) recuperation in unpolluted areas, (3) other programs decided by Cabinet order (such as programs supplying treatment appliances and home treatment).

Just as with workmen’s accident compensation and the like, the basis of compensation for handicaps is 80% of a worker’s average pay, and it is adjusted in accordance with the handicap extent. The handicap extent (rank) is based on the degree to which the ability to work is lost and on the degree of difficulty encountered in everyday life, and it is determined with reference to the day-to-day change in the patient’s condition as judged by a physician. An annual review is required.

1-3 Sources of Compensation Funds

Under Article 49, all fund sources for compensation benefits are supplied jointly by polluters. Eighty percent is obtained from all businesses nationwide who emit air pollutants, with the pollution load levy amount determined by the amount of SOx emissions; the remaining 20% comes from the vehicle weight tax to cover that portion of air pollution emitted by motor vehicles.

A special government corporation called the Pollution-Related Health Damage Compensation and Prevention Association is vested with the authority to collect the pollution load levy (Articles 52-61).

1-4 Amendments

A 1988 amendment changed the Japanese name of this law. The main changes were: (1) All designated regions were cancelled, and new victim certifications were stopped (certification renewals and compensation benefits for previously certified people were continued), and (2) with a view to preventing health damage, the Association’s fund is used to implement “health damage prevention programs (Article 68 ff.).

2. The Health Compensation Law’s Role and Problems

Although enactment of this law realized substantial progress in helping pollution victims and abating pollution, it has many problems that arise from its rigid, exclusive categorization. Further, the total cancellation of designated regions by the 1988 amendment represented serious retrogression in Japan’s environment-related administrative system.

2-1 Redress for All Victims

To exclude people who do not fit clear categories, there were only four illnesses for which victims could be certified, but over the 15 years from 1974 when the law took effect until the 1988 amendment that stopped new certifications, more than 180,000 victims were certified and provided with relief. Yet, it is likely that several times that number of victims was left without help because the law required victims to apply in person, and because of social strictures such as the difficulty certification would create in finding employment.

The government arbitrarily cancelled the region designations on the sole grounds that SOx pollution had been alleviated, but people have continued falling victim to SOx since 1988. This is clear from the startling increase in the number of children availing themselves of the medical care programs for pollution victims established by municipal governments in 12 cities among the former 41 designated regions, and in the number of asthmatic children in the Ministry of Education’s (currently the Ministry of Education, Science and Technology) school statistics.

We want the government to designate air pollution regions using NOx, airborne particulates, and SOx as indicators, and to facilitate relief for all pollution victims.

2-2 Health Recovery and Enhancement of Pollution Prevention Programs

The Health Compensation Law is inadequately implemented as a compensation program. Not only are the benefits too low, in many other ways it has insufficiencies such as the unjust gender differential, and no inclusion of compensation or consolation payments received before certification. In some ways, the system’s certification process does not take victims’ circumstances into consideration. For example, there is an increase in the number of “unranked” victims who do not receive handicap compensation, something that was not planned at first.

At the same time, the government’s stance of trying to bring the matter to a close with the payment of compensation benefits brought about the neglect of programs and research for the proper treatment and prevention that would help recover lost health. Because certified patients are now of advanced age, it is urgent that the government address the need of the elderly for measures tailored to pollution-induced illnesses.

The 1988 amendment incorporated prevention of health damage into the law in exchange for the discontinuance of new victim certification. But although the amendment incorporated the wish of pollution victims that the environment be improved so that health damage would not occur again, the measures offered are terribly inadequate in both substance and funding sources. Hence it cannot possibly cope with the growing number of asthma sufferers and the deteriorating environment, among other very real problems.

2-3 Fundamental Action on Air Pollution

Although the Health Compensation Law was meant as a system to help pollution victims, its pollution load levy provisions motivated air-polluting businesses to reduce their emissions, which in turn brought about advances in pollution abatement technology that substantially reduced SOx air pollution.

But the system neglected efforts to deal with NOx, which was likewise a problem from the beginning. Further, the subsequent (1978) considerable relaxation of environmental quality standards for NO2, the 1988 cancellation of all region designations, and other actions engendered considerable retrogression in the environment-related administrative apparatus, which allowed overall air pollution — especially motor vehicle pollution — to become more serious, and its geographical range more extensive.

In addition to Japan’s preexisting industrial pollution, motor vehicle pollution from our car-dependent society has become a serious matter of public concern. What is more, new problems are being posed by the pollution and damage from dioxins, benzene, and other heretofore unregulated substances. Japan badly needs to broadly ascertain the damage from these pollutants and to take effective and fundamental action to deal with them.

Notes：

This paper was reported by Isao HAYASHI, Secretary of The Japan Air Pollution Victims Association, in the Breakout Session 1 of the International NGO Convention (November 23-24, 2001, City of Kitakyushu).