Locating an Industrial Solid Waste Disposal Site with Public Participation: Developments of Japanese Environmental Law and Governance in Quest for Sustainability Hitoshi USHIJIMA Professor of Law Chuo University, Tokyo, Japan 7 th Colloquium of the IUCN Academy of Environmental Law November 3, 2009

Environmental Governance & Sustainability in relation to waste disposal site setting EG: Who makes a decision on What? who: business/government/citizens what: scientific issues/social issues safety in technology & social context (when: strategic assessment, planning procedure) Sustainability v. NIMBY (Unsustainability) sustainability: resource management - reduce/reuse/recycle - limited space for dumping NIMBY: neighborhood’s egoism? environmental justice? - who decides? - public participation

How are industrial solid waste disposal sites located with public participation in Japan? Thesis a shift on decision-making mode: FROM a decision-making with limited participation in the form of non-legal informal guidance & consent TO a decision-making with public participation in the form of legalized procedural rights

Solid Waste Disposal Act (SWDA) Private business develop a industrial solid waste disposal site under a prefectural license (Local governments set/run non-industrial waste disposal facilities and sites.) Even after careful consideration by governments under stringent regulations, local people often protest a site setting, before/after licensing -pursuing judicial remedies (injunction/ administrative litigation) + political pressure (esp. city/town government)

Before 1997 SWDA’s policy as long as a regulator properly considered requirements of licensing enumerated in relevant statutes & regulations, a new site had a limited risk to damage human health or to harm environment, even with no public participation Environmental Impact Assessment applies to some large sites.

Protest by Local People Reasons: potential environmental damages caused by sites themselves & sites construction decline of property value insufficient participation hesitancy to receive city’s wastes in rural areas

Injunction on licensed sites a gap between the statutory design and business practice maybe lack of prefectural government’s competency on license-application review & monitoring of sites

Informal Non-binding Guidelines by Prefectural Governments Local governments, particularly city governments which are closed to neighborhood, are very cautious about local people’s opinions, because they are often requested to facilitate disputes between private business and local people who live in constituency.

Non-binding Guidance by Prefectural Government for business to provide town meeting to explain the plan of a particular site neighborhood consent ←Governments want to prevent disputes de facto veto in licensing if business would not follow it, though NOT required by SWDA Non-binding referendum in some cases

MOE’s policy warning to local governments not to exercise their de facto veto because it lacks statutory authority (Even statutory authority would bring constitutional violation.) Lower courts decisions supported it.

1997 amendment of SWDA (mini-assessment procedure) to provide public participation procedure before licensing, interested parties can submit written comments on any elements of site plan, which is displayed (for one month) in public, from “the perspective of protecting human-life related environment” & city mayor’s opinion A prefectural governor, licensing authority, should take into account legitimate comments when licensing.

after 1997 Some prefectures still maintain informal guidelines, though MOE explains this amendment should drive out these consent-requesting guidelines. Less new sites

Other tools: 1) prefectural procedural ordinances (no informal guidelines) of disputes prevention 2) prefectural substantive ordinances (no informal guidelines) of drinking-water pollution prevention 3) notice-comment procedure on informal guidelines 4) environmental agreement 5) land-use and/or environmental regulatory planning: regulates location of sites

Analysis: Functions and Limits of Law Informal (non-legal) rule: closed social relationship could work as veto formal (legal) rule: transparency & accountability could work as agreement-building cooperative manner v. adversary manner non-legalized decision v. legalized decision

Conclusion a shift on decision-making mode: FROM a decision-making with limited participation in the form of non-legal informal guidance & consent TO a decision-making with public participation in the form of legalized procedural rights