2022-03-09 Systems of Compensation and Prevention for RF/EMF Harms — Learning from the Japanese Model
The following is excerpted from a book by Julian Gresser, Environmental Law in Japan (MIT Press 1981), which describes Japan’s “mixed” systems of compensation and prevention.
Seminal Precedent
The seminal precedent is the 1973 Japanese Law for the Compensation of Victims of Pollution-related Diseases. This law has the following remarkable features:
It stemmed directly from the suffering of victims who were humiliated and ignored by Japanese society, much like the hundreds of thousands of victims of RF/EMF radiation exposure around the world today.
The victims organized themselves into a grassroots movement (jumin undo), that transformed the values of Japanese society away from pollution being an emblem of economic progress (literally, “cities of smoke”-kemuri no miyako). Today, the wireless telecom promoters are touting 5G in a similar fashion, as the next great thing that our society must have in order to progress.
In Japan, after a decade of struggle with arrogant companies and an indifferent government, the victims of pollution-related diseases brought a series of lawsuits in which they introduced compelling epidemiological, clinical, and experimental evidence linking pollution exposure with various illnesses, just like many victims today are reporting an association of RF/EMF exposure with a large number of symptoms and illnesses.
In Japan, notwithstanding the uncertainty of the science—the polluting companies denied any connection of extraordinary high levels of NOx and SOx (nitrogen and sulfer oxide compounds) released from their petrochemical kombinat, with bronchitis, emphysema, and bronchial asthma.
The Japanese courts sided with the victims and awarded damages. The courts ruled that the victims’ demonstration of causation and foreseeability of harm was sufficient to create a presumption, and shifted the burden of demonstrating non-causation onto the polluting companies. The courts further ruled that the harms were clearly foreseeable, and defendant companies had a clear duty of care under the Japanese Civil Code.
The decisions galvanized Japanese society. The courts’ decisions spurred the petrochemical and chemical industries themselves to seek cover under an administrative relief solution.
Welfare component
Foremost, the Japanese law removed the victims’ burden of having to prove general and specific causation in court. To secure relief, a victim must simply prove by medical examination that he or she has one of several designated illnesses, including various pulmonary illnesses associated with air pollution, or designated diseases closely associated with a specific heavy metal, i.e. mercury, cadmium, etc.. The comparable application to RF/EMF would be a designation of EHS (Electro-Hyper-Sensitiity) and other specific illnesses recognized to be closely associated with RF/EMF exposure (for example, gliomas linked with cell phone usage near the ear.)
The Law does not preclude those who have secured administrative relief from obtaining additional compensation in court.
In effect, the law is indirectly placing a price on the imposition of unreasonable risk. It is recognizing effectively that the continuing exposure of vulnerable populations of an unacceptable risk of harm carries a price that polluters must pay. Imposing a charge calculated by the putative cost of this harm, and enabling the victims to secure further relief in court based on their administrative record, was Japan’s way of finding a balance between the need for economic growth through industrial development, and its public health costs.
Prevention
One part of the Japanese law imposed an emissions charge on air polluters. The charges went directly into a Compensation Fund for the victims. In theory, if a polluter reduced emissions, the charge was reduced; hence, there was a strong incentive to continue to mitigate the harmful activity. Again, paying the emission charge did not shield the polluter from paying additional damages to the victims, based on liability in tort.
The Law formally adopted the OECD’s 1972 Polluter Pays Principle. At present the U.S. and other industrial countries are encouraging the wireless industry under the very opposite, the Public Pays Principle.
Benefits of a “Mixed System”
The Japanese Law was developed by senior health officials, including Dr. Michio Hashimoto, Vice Minister for the Ministry of Health and Welfare, with many years of practical experience in public administration.
A mixed system was appealing to both the Japanese Ministry of Health and the Ministry for International Trade and Industry (MITI) because it enabled a rational balancing of the costs and benefits of an industrial activity, and supported Japan’s overall industrial policy. During this period (1971-1985), Japan achieved the world’s highest rates of economic growth and industrial competitiveness, while also meeting the world’s most stringent pollution control standards. It is a remarkable precedent that gainsays the claim of today’s wireless industry that uncontrolled 5G proliferation must be a critical component of national infrastructure.
Mixed systems offer a fair, practical, and balanced way to allocate the burdens of scientific uncertainty that ordinarily fall upon a vulnerable, underfinanced, and poorly represented public.
Most importantly, mixed compensation systems give continuing recognition to the plight of the victims, which focus public and government attention, and thereby become a powerful force for prevention. Almost as soon as Japan launched the law, and as thousands of victims presented themselves for compensation, administrators like Dr. Hashimoto began to see that the societal problem of pollution-related injuries was far more serious than was imagined when the law was enacted. It is highly likely that if the U.S. were to enact a similar structure for the Compensation of Victims of RF/EMF radiation, we will discover the problem is far more widespread than acknowledged by the U.S. government or the wireless industry, and the health costs to society are actually massive.
U.S. Precedents
The Japanese Law was seminal precedent for the Superfund in the U.S. Actually, the idea originated in a year-long course conducted by the authors in 1976-1977 at the Harvard Law School which developed the materials for the subsequent book, Environmental Law in Japan.
Other funds are used to compensate victims of mass tort litigation. Even the 2020 California Consumer Privacy Act provides for administrative compensation for victims of privacy misappropriation.
Local Health Departments, for example in Pittsfield, MA, should consider introducing programs to offer relief to local victims of RF/EMF exposure to advance the twin goals of compensation and prevention, the legacy of the Japanese Law.