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2015 (Gyo-Hi) 512

2016.12.08
2015 (Gyo-Hi) 512
Minshu Vol. 70, No. 8
Judgment on the case for which it is ascertained that any serious damage is likely to be caused, as prescribed in Article 37-4, paragraph (1) of the Administrative Case Litigation Act, in connection with a suit demanding an injunction against operations of aircraft used by the Japan Self-Defense Forces, for which suit was filed by residents living in the vicinity of the airfield set up by the Japan Self-Defense Forces and used by the Japan Maritime Self-Defense Force and the United States Navy in Japan by reason of the damage arising from noise generated by operation of aircraft at the airfield in question
Case demanding an injunction against aircraft operations, etc.
Judgment of the First Petty Bench, partially quashed and decided by the Supreme Court, partially dismissed with prejudice on the merits
Tokyo High Court, Judgment of July 30, 2015
1. By reason of the damage arising from the noise generated by operations of aircraft at the airfield set up by the Japan Self-Defense Forces (JSDF) and used by the Japan Maritime Self-Defense Forces (JMSDF) and the United States Navy in Japan, certain residents living in the vicinity of this airfield filed a suit demanding that operations, etc. of the aircraft used by the JSDF be prohibited every day from 8:00 pm to 8:00 am. In connection with this suit, it is ascertained that any serious damage is likely to be caused, as prescribed in Article 37-4, paragraph (1) of the Administrative Case Litigation Act, under the circumstances indicated in the statements of the judgment, even after taking into consideration the details and characteristics of operations of the aircraft used by the JSDF at the airfield in question. The circumstances referred to above include the following: (i) the residents mentioned above live in a Class I Area as defined in Article 4 of the Act on Improvement of Living Environment of Areas around Defense Facilities, which is situated in the vicinity of the airfield in question; and those residents suffer repeatedly and continuously from sleep disorders, listening disturbances, disturbances in carrying out mental tasks, and mental anguish including feelings of discomfort due to the noise generated by aircraft taking off and landing at the airfield in question, the severity of which cannot be underestimated; (ii) operations of aircraft used by the JSDF contribute a certain extent to the occurrence of the damage described above; and (iii) the alleged noise is generated whenever aircraft deployed and operated in response to domestic or international events, etc. take off from or land at the airfield; and the damage described above occurs accordingly, and is highly likely to accumulate as a result of repeated and continuous exposure to the said noise.

2. In the case where Japan’s Minister of Defense exercises his/her authority under the circumstances indicated in the statements of the judgment in connection with operations, etc. of the aircraft used by the JSDF every day during the period from 8:00 pm to 8:00 am at the airfield set up by the JSDF and used by the JMSDF and the United States Navy in Japan, such exercise does not fall under the situation where it is found that the competent administrative agency's act of making a disposition goes beyond the scope of the agency’s discretion or constitutes an abuse of such discretion as prescribed in Article 37-4, paragraph (5) of the Administrative Case Litigation Act. The circumstances referred to above include the following: (i) the operations, etc. described above play an extremely important role in the protection of the peace and security of Japan, and the life, body, property and other interests of its citizens; and such operations, etc. are highly significant towards promoting the public good and interest; and (ii) while the residents living in a Class I Area as defined in Article 4 of the Act on Improvement of Living Environment of Areas around Defense Facilities that is situated in the vicinity of the airfield in question suffer repeatedly and continuously from sleep disorders, listening disturbances, disturbances in carrying out mental tasks, and mental anguish including feelings of discomfort due to the noise generated by aircraft taking off and landing at the airfield in question, the severity of which cannot be underestimated, the operations of aircraft used by the JSDF are controlled based on certain self-imposed regulations implemented to mitigate the damage described above, and reasonable countermeasures are implemented in ways to subsidize work for noise insulation or other modifications in housing, pay relocation compensation, buyouts of real estate relevant to the noise damage, or promotion of other environmental development efforts.

(There is a concurring opinion in connection with Paragraphs 1 and 2 above.)
For Paragraphs 1 and 2: Article 3, paragraph (7) of the Administrative Case Litigation Act; Article 8 of the Self-Defense Forces Act; Article 4 of the Act on Improvement of Living Environment of Areas around Defense Facilities

For Paragraph 1: Article 37-4, paragraphs (1) and (2) of the Administrative Case Litigation Act

For Paragraph 2: Article 37-4, paragraph (5) of the Administrative Case Litigation Act; Article 3 and Chapter VI (Operations of the Self-Defense Forces) of the Self-Defense Forces Act (in the version before revision by Act No. 76 of 2015); Article 107, paragraph (1) of the Self-Defense Forces Act (in the version before revision by Act No. 67 of 2015); Article 107, paragraphs (4) and (5) of the Self-Defense Forces Act



Administrative Case Litigation Act

Article 3

(7) The term "action for an injunctive order" as used in this Act means an action seeking an order, in cases where an administrative agency is about to make a certain original administrative disposition or administrative disposition on appeal which it should not make, to the effect that the administrative agency should not make the original administrative disposition or administrative disposition on appeal.

Article 37-4 (1) An action for an injunctive order may be filed only in cases where any serious damage is likely to be caused if a certain original administrative disposition or administrative disposition on appeal is made; provided, however, that this shall not apply if there are any other appropriate means to avoid such damage.

(2) When judging whether or not any serious damage would be caused as prescribed in the preceding paragraph, the court shall consider the degree of difficulty in recovering from the damage and shall take into consideration the nature and extent of the damage as well as the content and nature of the original administrative disposition or administrative disposition on appeal.

(5) Where an action for an injunctive order satisfies the requirements prescribed in paragraph (1) and paragraph (3), if it is found that the provisions of the laws and regulations which give a basis for an original administrative disposition or administrative disposition on appeal pertaining to an action for an injunctive order clearly show that the administrative agency should not make the original administrative disposition or administrative disposition on appeal, or it is found that the administrative agency's act to make the original administrative disposition or administrative disposition on appeal goes beyond the bounds of the agency's discretionary power or constitutes an abuse of such power, the court shall make a judgment to order that the administrative agency should not make the original administrative disposition or administrative disposition on appeal.

Self-Defense Forces Act

Article 8

The Minister of Defense shall supervise duties and operations of the Self-Defense Forces pursuant to the provisions of this Act; provided, however, that the command and control of the Minister of Defense over respective units and organizations of the Ground Self-Defense Force, the Maritime Self-Defense Force, and the Air Self-Defense Force (hereinafter collectively referred to as the “Units, etc.”) shall be exercised through the persons set forth in the following items according to the categories of duties and operations set forth therein.

(i) Duties and operations of the Ground Self-Defense Force, the Maritime Self-Defense Force, or the Air Self-Defense Force pertaining to the function under the jurisdiction of the Joint Staff: Chief of Staff, Joint Staff

(ii) Duties and operations of the Ground Self-Defense Force pertaining to the function under the jurisdiction of the Ground Staff Office:

Chief of Staff, Ground Self-Defense Force

(iii) Duties and operations of the Maritime Self-Defense Force pertaining to the function under the jurisdiction of the Maritime Staff Office:

Chief of Staff, Maritime Self-Defense Force

(iv) Duties and operations of the Air Self-Defense Force pertaining to the function under the jurisdiction of the Air Staff Office: Chief of Staff, Air Self-Defense Force

Article 107

(4) Pursuant to the provisions of a Cabinet Order, the provisions of the Civil Aeronautics Act set forth below do not apply to Self-Defense Forces aircraft, those who are on board and engaged in the operation of such aircraft, and the acts prescribed in Article 99-2, paragraph (1) of the same Act performed by the Self-Defense Forces in the cases set forth below: the provisions of Articles 60 to 64, Article 76, Article 76-2, Articles 79 to 81, Article 82, paragraph (2), Article 82-2, Article 84, paragraph (2), Article 88, Article 91, Article 92 (limited to the parts pertaining to paragraph (1), item (iii)) and Article 99-2, paragraph (1) of the Civil Aeronautics Act in the case of defense mobilization ordered pursuant to the provision of Article 76, paragraph (1) of this Act; the provisions of Articles 79 to 81 of the Civil Aeronautics Act in the case of defense mobilization ordered pursuant to the provision of Article 78, paragraph (1) or Article 81, paragraph (2) of this Act, or in the case of a dispatch ordered pursuant to the provision of Article 83, paragraph (2) of this Act; and the provision of Article 99-2, paragraph (1) of the Civil Aeronautics Act in the case where a measure is ordered pursuant to the provision of Article 82-3, paragraph (1) or (3) of this Act.

(5) Notwithstanding the provisions of paragraph (1) and the preceding paragraph, the Minister of Defense shall establish standards for the safety and operation of the aircraft used by the Self-Defense Forces, the standards regarding the skills of those who are on board and engaged in the operation of such aircraft, and the standards for installation and management of the airfields and air navigation facilities set up by the Self-Defense Forces; and the Minister of Defense shall implement other measures necessary for preventing aviation disasters and ensuring public safety.

Act on Improvement of Living Environment of Areas around Defense Facilities

Article 4

In the case where the Minister of Defense designates a certain area situated around defense facilities, pursuant to the provisions of a Cabinet Order, as an area burdened by serious problems resulting from noise generated by frequent takeoffs and landings, etc. of Self-Defense Forces aircraft, etc. (hereinafter referred to as a “Class I Area”), if the owner of a house (meaning a building or a portion of a building used as someone’s residence; the same applies hereinafter) located in a Class I Area at the time of said designation or a holder of any right pertaining to this house other than its ownership carries out the work necessary for preventing or mitigating the problems described above, the national government shall implement a measure for subsidizing this work.

Self-Defense Forces Act (in the version before revision by Act No. 76 of 2015)

Article 3

(1) The primary mission of the Self-Defense Forces is to defend Japan against direct and indirect aggression for the purpose of protecting the peace and independence of Japan, and ensuring the country’s security. As necessary, the Self-Defense Forces shall perform duties to maintain public order.

(2) In addition to what is prescribed in the preceding paragraph, the Self-Defense Forces shall undertake the missions set forth below that they are expected to perform pursuant to the provisions separately specified by law, to an extent that is not detrimental to the performance of the primary mission prescribed in the preceding paragraph, and within the scope of operations not constituting the threat or use of force.

(i) Activities conducive to ensuring the peace and security of Japan that are to be carried out in response to events that may occur in areas surrounding Japan and that significantly affect the peace and security of the country

(ii) Activities conducive to the peace and security of the international community, including Japan, that are to be carried out through contributing to international peace efforts centering on the United Nations or through promoting other international cooperation efforts

(3) The missions of the Ground Self-Defense Force, the Maritime Self-Defense Force, and the Air Self-Defense Force are to perform operations mainly on land, sea, and in the sky, respectively.

Self-Defense Forces Act (in the version before revision by Act No. 67 of 2015)

Article 107

The provisions of the Civil Aeronautics Act set forth below do not apply to Self-Defense Forces aircraft, those who are on board and engaged in the operation of such aircraft, and the airfields and defense facilities set up by the Self-Defense Forces: Article 11, Article 28, paragraphs (1) and (2), Article 34, paragraph (2), Article 38, paragraph (1), Articles 57 to 59, Article 65, Article 66, Article 86, Article 89, Article 90, and Article 134, paragraphs (1) and (2).
1. The final appeal of the appellants in the case 2015 (Gyo-Hi) 512 shall be dismissed with prejudice on the merits.

2. With regard to the parts for which the appellants in case 2015 (Gyo-Hi) 513 are defeated, the judgment in the second instance shall be quashed. With regard to the same parts, the judgement in the first instance shall be revoked.

3. With regard to the parts described in item 2 above, the primary claims of the appellants in case 2015 (Gyo-Hi) 512 shall be dismissed with prejudice on the merits.

4. With regard to the parts described in item 2 above, the actions pertaining to the secondary claims of the appellants in case 2015 (Gyo-Hi) 512 shall be dismissed without prejudice.

5. The total costs of this suit shall be borne by the appellants in case 2015 (Gyo-Hi) 512.
I. Summary of the facts in this case

1. This case was filed by the appellants in case 2015 (Gyo-Hi) 512 and the appellees in case 2015 (Gyo-Hi) 513 (hereinafter referred to as the “Plaintiffs in the First Instance”), who reside in the vicinity of Naval Air Facility Atsugi (hereinafter referred to as “NAF Atsugi”). NAF Atsugi is a facility that lies in Kanagawa prefecture and is used by the Japan Maritime Self-Defense Force (JMSDF) and the United States Navy (hereinafter referred to as “US Navy”). The Plaintiffs in the First Instance insist that they suffer both mentally and physically due to noise generated by the aircraft used by the Japan Self-Defense Forces (JSDF) and the United States Armed Forces in Japan (hereinafter referred to as “US Forces in Japan” or “USFJ”) (such aircraft being hereinafter respectively referred to as “JSDF Aircraft” and “USFJ Aircraft”). Based on this claim, the Plaintiffs in the First Instance demand as follows against the appellees in case 2015 (Gyo-Hi) 512 and the appellants in case 2015 (Gyo-Hi) 513 (hereinafter referred to as the “Defendants in the First Instance”) pursuant to the Administrative Case Litigation Act: the primary claim consists of a demand for an injunction against certain forms of JSDF Aircraft and USFJ Aircraft operation at NAF Atsugi, and the secondary claim is a demand that a certain level of the noise generated by such operations be prevented from spreading to the residential areas of the Plaintiffs in the First Instance, as well as a number of other demands.

2. The facts lawfully ascertained in the second instance are summarized as follows.

(1) Profile of NAF Atsugi

a) NAF Atsugi is a facility that lies in across parts of the cities of Yamato, Ayase and Ebina in Kanagawa prefecture, with a total area of approximately 5.07 million square meters. At the center of NAF Atsugi is an airfield that extends 2,438 meters from north to south, composed of a runway 45 meters wide, and other installations (hereinafter referred to as the “Airfield”).

b) While NAF Atsugi had been used by the former Japanese navy since around 1941, it was confiscated by the United States Army in September 1945. After December 1950, NAF Atsugi was used as an air station for the US Navy. Thereafter, NAF Atsugi was offered to the US as a facility and area available to US Forces in Japan, in accordance with the “Security Treaty between Japan and the United States of America” and the “Administrative Agreement under Article III of the Security Treaty between Japan and the United States of America” in effect on and after April 28, 1952, and in accordance with the “Treaty of Mutual Cooperation and Security between Japan and the United States of America” and the “Agreement under Article VI of the Treaty of Mutual Cooperation and Security between Japan and the United States of America regarding Facilities and Areas and the Status of United States Armed Forces in Japan” (hereinafter referred to as the “Status-of-Forces Agreement”) in effect on and after June 23, 1960.

c) By virtue of an intergovernmental agreement concluded between Japan and the United States on June 30, 1971, the usage of NAF Atsugi was determined as follows on and after July 1, 1971: (i) the portions indicated in yellow (including land consisting of 1,178,779 square meters and the buildings thereon) on the site drawing for the Airfield shown in Appendix 3 to the judgment in the first instance (hereinafter referred to as the “Drawing”) were available for joint use by the Japan Maritime Self-Defense Force (JMSDF) and US Forces in Japan in accordance with Article II, paragraph 4(a) of the Status-of-Forces Agreement; (ii) the portions indicated in blue on the Drawing were continuously offered to the United States to make them available for use by US Forces in Japan in accordance with Article II, paragraph 1(a) of the Status-of-Forces Agreement; and (iii) while the red shaded portions on the Drawing (the area for the airfield at NAF Atsugi containing a runway and a control tower) were designated as facilities controlled by the JMSDF and the Airfield was set up as a JSDF air station within such red shaded portions, Japan decided to continuously allow US Forces in Japan to use the Airfield as one of the facilities and areas specified in Article II, paragraph 4(b) of the Status-of-Forces Agreement. A subsequent decision as of July 13, 2011 made some of the portions described in (ii) above available for Japan-US joint use. Up to now, no other changes have been made to the area demarcation at NAF Atsugi described above.

(2) Activities, etc. of the JSDF at NAF Atsugi

a) At NAF Atsugi, JMSDF stations the Fleet Air Force Headquarters, Fleet Air Wing 4, Air Development Squadron 51, Air Transport Squadron 61, the Air Control Service Group, and so on. JSDF aircraft deployed at NAF Atsugi include anti-submarine warfare aircraft, utility aircraft, transport aircraft, and patrol helicopters. The Fleet Air Force Headquarters serves as a center of air wings, which are core forces of Japan’s self-defense fleets, and takes command of air forces stationed all over Japan. Most of the JSDF Aircraft taking off from and landing at the Airfield belong to Fleet Air Wing 4 under the command of the Fleet Air Force Headquarters. Fleet Air Wing 4 is engaged in: (i) anti-submarine airborne patrols over the seas surrounding Japan as its main mission, (ii) disaster relief and other cooperation in civilian activities, (iii) anti-piracy efforts and other international cooperation, and (iv) education and training, etc. Air Development Squadron 51 is assigned to the research and study of aircraft operations, and Air Transport Squadron 61 is responsible for transporting people and freight. The Air Control Service Group is in charge of reporting aeronautical information necessary for JMSDF aircraft operations, liaisons for filing flight plans and obtaining flight approval, flight control education and training, and other services.

JMSDF considers the Airfield as the most important air station in the Kanto district, since the location of the Airfield is convenient for readily taking off over the sea.

b) US Forces in Japan presently use NAF Atsugi as an air facility, where they station Commander US Naval Air Facility Atsugi, Commander Fleet Air Western Pacific, Carrier Air Wing Five, Helicopter Maritime Strike Squadron Five One, and other organizations; deploy attack planes, electronic warfare planes, early warning planes, transport aircraft, anti-submarine helicopters, rescue helicopters, and other aircraft; undertake maintenance work; supply missions and other support services for the aircraft; and provide flight training for pilots of carrier-borne aircraft. Among the US Navy’s air stations in Japan, NAF Atsugi plays the most important role.

c) Looking into the number of takeoffs and landings at the Airfield, USFJ Aircraft outnumber JSDF Aircraft. Therefore, most aircraft noise generated there is attributable to USFJ Aircraft. In addition, all large jets generating extremely loud noise at the Airfield are USFJ Aircraft.

(3) Situation regarding aircraft noise at the Airfield and damage suffered by the Plaintiffs in the First Instance

a) Aircraft noise has unique characteristics described as follows. First, the sound peak level is much higher and can spread over a wider area than noise from other sources such as factory noise or car noise. Second, the sound quality of aircraft noise is peculiar because its frequencies stay in a specific range under the influence of the engines. Furthermore, the duration of noise exposure contains silence lasting from a few seconds to a few tens of seconds. Taking these characteristics regarding aircraft noise into consideration, Japan has been adopting a noise measurement and evaluation model called Weighted Equivalent Continuous Perceived Noise Level (WECPNL) as the noise evaluation index, which was proposed by the International Civil Aviation Organization (ICAO) in 1971. (The noise level indicated in WECPNL is hereinafter referred to as the “WECPNL value.”)

Under Article 9, paragraph (1) of the Basic Act for Environmental Pollution Control and Article 16, paragraph (1) of the Environment Basic Act, the Environmental Quality Standards for Aircraft Noise (Notification No. 154 of 1973, Environment Agency of Japan) were issued, which was the version before revision by Notification No. 114 of 2007 issued by the Ministry of Environment of Japan. According to these former standards, acceptable WECPNL values to preserve the living environment and contribute to protecting people's health are set at 70 WECPNL or less for areas used exclusively for residential purposes, and at 75 WECPNL or less for other areas where normal living conditions need to be maintained.

b) JSDF Aircraft and the like require special performance and special forms of operation and utilization that are different from civil aviation aircraft. While the Civil Aeronautics Act contains various provisions intended to ensure the safety of aircraft navigation and to prevent problems arising from aircraft navigation, they are drastically deregulated with regard to JSDF Aircraft and the like in terms of their special requirements as explained above, in accordance with Article 107, paragraphs (1), (4), etc. of the Self-Defense Forces Act (in the version before revision by Act No. 67 of 2015; the same applies hereinafter) and other provisions of laws. Among JSDF Aircraft and others, jet aircraft in particular entail an extremely high sound peak level, and jet noise contains many high-frequency components and generates a strange metallic sound. As for propeller aircraft or helicopters, their sound peak level is lower than that for jet aircraft, but their low-frequency sounds sometimes have a tendency to feel noisy.

c) The Act on Improvement of Living Environment of Areas around Defense Facilities (hereinafter referred to as the “Environment Improvement Act”) has been established for the purpose of facilitating measures necessary for improving the living environment of areas around defense facilities to prevent problems that may arise from acts performed by JSDF and the like or from installation or operation of defense facilities, thereby contributing to the stabilization of livelihood of the relevant residents and enhancement of their welfare (as prescribed in Article 1). Under the Environment Improvement Act, the areas around defense facilities are designated as a Class I Area, Class II Area or Class III Area based on the severity of problems, and measures required to be implemented are specified for each area category. If a certain area around a defense facility is found to be burdened by serious problems resulting from noise generated by frequent takeoffs and landings, etc. of the JSDF aircraft or the like, such an area should be designated as a Class I Area, and a measure for subsidizing work regarding noise insulation for housing must be implemented (as prescribed in Article 4). If the problems suffered by an area designated as a Class I Area are found to be particularly serious, such an area should be designated as a Class II Area, and an owner of a building in this area is entitled to receive compensation for loss resulting from removal, etc. (as prescribed in Article 5). When it is found necessary to prevent new or subsequent problems in an area designated as a Class II Area, such an area should be designated as a Class III Area, where green belts must be developed or other measures must be implemented (as prescribed in Article 6).

d) Based on findings from the aircraft noise surveys conducted in fiscal 2003 and 2004 and the WECPNL values measured around the Airfield using a specified method in the said surveys, areas registering 75 WECPNL or higher are designated as a Class I Area, areas registering 90 WECPNL or higher are designated as a Class II Area, and areas registering 95 WECPNL or higher are designated as a Class III Area. The total area of the Class I Areas designated as above around the Airfield (while these areas contain some Class II and Class III Areas; the same applies hereinafter) is approximately 10,500 hectares, which contains approximately 244,000 households.

e) All of the Plaintiffs in the First Instance reside in Class I Areas around the Airfield. Due to the noise generated by aircraft taking off from and landing at the Airfield, the Plaintiffs in the First Instance suffer repeatedly and continuously from: (i) sleep disorders, (ii) listening disturbances when having conversations, telephone communications, watching television or in other situations, or disturbances in carrying out mental tasks such as reading or studying, and (iii) mental anguish such as feelings of discomfort or anxiety concerning health problems. In particular, the degree concerning sleep disorders is fairly serious. In most parts of Class I Areas, the Plaintiffs in the First Instance are exposed to such an enormous amount of noise during night-time hours that concerns about adverse health effects arise.

In parallel with this lawsuit, the Plaintiffs in the First Instance have instituted a civil suit regarding aircraft noise at the Airfield against the Defendants in the First Instance to seek compensation under Article 2, paragraph (1) of the State Redress Act.

(4) Measures, etc. to mitigate noise generated at the Airfield

a) At present, JSDF Aircraft (Fleet Air Wing 4) are operated under self-imposed regulations. According to Atsugi Airfield Regulations (Fleet Air Wing 4 Notification No. 2 of March 15, 2007), major restrictions are as follows: training flights are prohibited for 24 hours on Sundays and from 10:00 pm to 6:00 am on Mondays to Saturdays, in principle, for all types of aircraft; trial flights on the ground are prohibited for 24 hours on Sundays and from 6:00 pm to 8:00 am on Mondays to Saturdays, in principle, for jets (for 24 hours on Sundays and from 10:00 pm to 6:00 am on Mondays to Saturdays for aircraft other than jets); and aircraft types that can be used for consecutive takeoff and landing training in the traffic pattern are restricted, with upper limits specified for the number of consecutive takeoffs and landings allowed during such training flights. According to the Notification of Regulatory Measures for Mitigation of Aircraft Noise at NAF Atsugi (Fleet Air Wing 4 Notification No. 835 of November 4, 1998), periods for takeoff and landing training must be well-coordinated in order to avoid concentration of multiple training planes around the same time.

As for the number of JSDF Aircraft takeoffs and landings during the period from 10:00 pm to 6:00 am, 83 times were recorded in fiscal 2013 (i.e., 6.9 times per month on average), and 53 times were recorded in fiscal 2014 (i.e., 4.4 times per month on average).

With regard to operation of USFJ Aircraft at NAF Atsugi, the Japan-U.S. Joint Committee has already decided to implement various measures to control aircraft noise.

b) The Defendants in the First Instance have been implementing various noise control measures aimed at stabilization of the livelihood of residents living around the Airfield and enhancement of their welfare. Such measures include the following: (i) subsidizing work regarding noise insulation for housing under Article 4 of the Environment Improvement Act or other laws; (ii) subsidizing work regarding noise insulation for schools and hospitals under the respective items of Article 3, paragraph (2) of the same act or other laws; (iii) paying out relocation compensation or buying out real estate relevant to the noise damage under Article 5 of the same act or other laws; and (iv) subsidizing television reception fees, paying military base grants, paying grants for environmental development around specified defense facilities, and promoting other environmental development efforts. The cumulative amount so far expended for these measures exceeds 1,044 billion yen.

(5) In the Japan-U.S. Roadmap for Realignment Implementation approved by the Japan-United States Security Consultative Committee (SCC) in May 2006, provisions concerning the “Relocation of Carrier Air Wing from Air Facility Atsugi to Air Station Iwakuni” are contained. In October 2013, the SCC announced its acknowledgment regarding completing relocation of the US Navy’s Carrier Air Wing Five to Air Station Iwakuni by around 2017. Presently, development efforts necessary for this relocation project are underway at Air Station Iwakuni and its vicinity.

3. Based on the facts explained above, the court of prior instance determined as described below. Regarding the primary claim of the Plaintiffs in the First Instance to demand an injunction against JSDF Aircraft operations, the court determined that serious damage is likely to be caused, as prescribed in Article 37-4, paragraph (1) of the Administrative Case Litigation Act, which is a requirement for justifying the injunction demand. The court therefore upheld the claim to the extent that the Ministry of Defense should not allow JSDF Aircraft to operate at the Airfield every day from 10:00 pm to 6:00 am, except in the case of unavoidable circumstances, during the period until December 31, 2016.

(1) Due to the noise generated by aircraft taking off from and landing at the Airfield, the Plaintiffs in the First Instance have been suffering from sleep disorders or other disturbances in their lives, and their moral interests are therefore considered to be significantly undermined. In particular, the degree of sleep disorders seen is fairly serious. In light of the nature and severity of the damage faced by the Plaintiffs in the First Instance and the difficulty of recovery from such damage, JSDF Aircraft operations at the Airfield are determined to be likely to cause the serious damage referred to in Article 37-4, paragraph (1) of the Administrative Case Litigation Act, as alleged by the Plaintiffs in the First Instance, as aforementioned, even after taking into consideration the details and characteristics of JSDF Aircraft operations at the Airfield, for example, in terms of the significance of such operations for the public good and interest.

(2) The Plaintiffs in the First Instance demand an injunction against: (i) JSDF Aircraft operations every day from 8:00 pm to 8:00 am, (ii) JSDF Aircraft operations for training purposes, and (iii) operation of a specific type of JSDF Aircraft in the case where such operation has in the past year recorded a level of 75 WECPNL or higher in the vicinity of the places of residence of the Plaintiffs in the First Instance. Regarding the demand (i), aircraft operations each day from 10:00 pm to 6:00 am basically constitute deviation from the authority of the Ministry of Defense to supervise aircraft operations or an abuse of said authority, and thus, the requirement prescribed in Article 37-4, paragraph (5) of the Administrative Case Litigation Act is determined to be satisfied. This is because the noise resulting from such aircraft operations interferes with the sleep of neighboring residents, which can be a direct cause of health problems, and this damage suffered by the Plaintiffs in the First Instance due to such noise can constitute an undue burden when compared to the administrative purposes intended by such operations. At the same time, JSDF Aircraft operations during the aforementioned hours will not be considered as an abuse of the authority described above in the event of defense mobilization prescribed in Chapter VI of the Self-Defense Forces Act for the purpose of performing the missions set forth in Article 3 of the same act, or in the event of operations for protecting public security or due to another equivalent necessity or urgency, or under other objectively unavoidable circumstances. With regard to the US Navy’s Carrier Air Wing Five currently stationed at NAF Atsugi, relocation to Air Station Iwakuni around 2017 has already been decided, and this relocation is expected to significantly change the status regarding aircraft noise. It is therefore reasonable to specify December 31, 2016 as the expiration date of the injunction against aircraft operations.



II. Explanations regarding reason No. 4 for the petition for acceptance of the final appeal filed by Attorney for Appellant JOZUKA Makoto and others in 2015 (Gyo-Hi) 513

1. This refers to a requirement for filing a suit to seek an injunctive order as prescribed in Article 37-4, paragraph (1) of the Administrative Case Litigation Act. The requirement for ascertaining that the referenced administrative disposition is likely to cause serious damage should be as follows: the potential damage likely to arise out of the disposition cannot be readily remedied by such means as filing a suit for revocation of the disposition and seeking a stay of execution after the disposition is made, and it is difficult to seek remedies for such damage unless obtaining an order for injunction before the disposition is made (cf. Supreme Court judgement in 2011 (Gyo-Tsu) 177 and 178 and 2011 (Gyo-Hi) 182; judgment of the First Petty Bench of February 9, 2012, as shown on page 183 of Minshu Vol. 66, No. 2)

2. According to the facts explained previously, the Plaintiffs in the First Instance reside in Class I Areas pertaining to the Airfield. Due to the noise generated by aircraft taking off from and landing at the Airfield, the Plaintiffs in the First Instance suffer repeatedly and continuously from sleep disorders, listening disturbances, disturbances in carrying out mental tasks and mental anguish such as feelings of discomfort or anxiety concerning health problems, the severity of which cannot be underestimated. JSDF Aircraft operations undeniably contribute a certain extent to the occurrence of the damage described above. Such aircraft noise is generated whenever the aircraft deployed and operated in response to domestic or international events, etc. take off from or land at the Airfield, and the damage described above occurs accordingly, which is highly likely to accumulate as a result of repeated and continuous exposure to the said noise. Therefore, filing a suit to seek the revocation of an administrative disposition or other equivalent approaches are inappropriate as a remedy for this type of damage since such approaches are intended to subsequently fight the illegality of the administrative disposition in question.

3. As a consequence, the damage alleged by the Plaintiffs in the First Instance as described in I.3.(2)(i) to (iii) that they are likely to suffer as a result of JSDF Aircraft operations cannot be readily remedied once the administrative disposition in question has been implemented, even if a suit to seek the revocation of the administrative disposition is filed or other remedial measure is subsequently sought. Therefore, the primary claim of the Plaintiffs in the First Instance to demand an injunction against JSDF Aircraft operations is justifiable, even after taking into consideration the details and characteristics of JSDF Aircraft operations at the Airfield, since the administrative disposition is likely to cause serious damage as explained above. The decision in the judgment in the second instance as described in I.3.(1) is acceptable and the appellants’ argument is unacceptable.



III. Explanations regarding reason No. 6 for the petition for acceptance of the final appeal filed by Attorney for Appellant NAKANO Shin and others in 2015 (Gyo-Hi) 512 and reason No. 5 for the petition for acceptance of the final appeal filed by Attorney for Appellant JOZUKA Makoto and others in 2015 (Gyo-Hi) 513

1. According to Article 37-4, paragraph (5) of the Administrative Case Litigation Act, the court is expected to order that the administrative agency should suspend its administrative disposition if it is found that the administrative agency's act to make the administrative disposition goes beyond the scope of the agency’s discretion or constitutes an abuse of such discretion. This provision is interpreted as requiring the court to ascertain that an act of making the administrative disposition goes beyond the scope of the agency’s discretion or constitutes an abuse of such discretion in the context of concrete facts for each specific case if the court is to issue an injunctive order to suspend such disposition (cf. judgment of the First Petty Bench mentioned previously).

2.

(1) According to Article 3, paragraph (1) of the Self-Defense Forces Act, the primary mission of the JSDF is to defend Japan against direct and indirect aggression for the purpose of protecting the peace and independence of Japan and ensuring the security of the country, and the JSDF will perform duties to maintain the public order, as necessary. Under paragraph (2) of the same article, the JSDF will undertake the missions that they are expected to perform pursuant to the provisions separately specified by law, in addition to what is prescribed in paragraph (1). Such missions include activities conducive to ensuring the peace and security of Japan that are to be carried out in response to events that may occur in areas surrounding Japan and that significantly affect the peace and security of the country.

Chapter VI of the Self-Defense Forces Act sets forth various activities of the JSDF including: defense mobilization, dispatch for civil protection, etc., public security operations based on a corresponding order, patrol and defense operations at sea, anti-piracy operations, disaster relief, measures against airspace violation, transportation of Japanese nationals residing abroad, etc., and rear-area logistic support. In addition, information gathering and personnel training necessary for carrying out the activities listed above are included in the scope of JSDF activities (cf. Article 4, items (iv) and (ix) of the Act for Establishment of the Ministry of Defense (in the version before revision by Act No. 66 of 2015)).

(2) The Minister of Defense is authorized to supervise JSDF duties and operations (as prescribed in Article 8 of the Self-Defense Forces Act), which includes the authority to supervise JSDF Aircraft operations. The Minister of Defense delegates the authority to control actual JSDF Aircraft operations to the aircraft operators defined in Article 2, item (vi) of the Directive on Aircraft Navigation and Boarding (Defense Agency Directive No. 2). Article 3 of the same directive specifies the situations where an aircraft operator is allowed to operate its aircraft as follows: when it is necessary to operate the aircraft in the case where JSDF acts pursuant to the provisions of Chapter VI of the Self-Defense Forces Act (item (i)), when it is necessary to operate the aircraft in connection with pilot training (item (iii)), when it is necessary to operate the aircraft for reconnaissance, communication, observation, or other purposes (item (v)), and in other situations.

Since JSDF Aircraft operations inevitably generate noise by their very nature, Article 107, paragraphs (1) and (4) of the Self-Defense Forces Act stipulates that such operations are drastically exempted from application of the provisions intended for ensuring the safety of aircraft navigation or preventing problems arising from aircraft navigation in the Civil Aeronautics Act. At the same time, the Minister of Defense is required under paragraph (5) of the same article to specify the standards for the safety and operation of JSDF Aircraft, the standards for installation and management of the airfields and air navigation facilities set up by the JSDF as well as other standards, and to implement other measures necessary for preventing aviation disasters and ensuring public safety.

(3) The provisions of the Self-Defense Forces Act and other laws explained above require the Minister of Defense to exercise the authority pertaining to JSDF Aircraft operations in order to make sure that the missions assigned to the JSDF such as the defense of Japan and maintenance of the public order are reliably and effectively executed. When exercising this authority, it is obviously necessary to make highly political and professional decisions after comprehensively considering the domestic and international situation that could affect the protection of Japan’s peace and security or the life, body, property and other interests of its citizens, the purpose of any specific JSDF Aircraft operation and the degree of its necessity, the nature and severity of the damage suffered by neighboring residents due to noise generated by aircraft operations, and other various circumstances. As a result, exercising of the aforementioned authority needs to be left to the broad discretion of the Minister of Defense.

Therefore, in order to determine whether or not the Minister of Defense’s exercising of authority pertaining to JSDF Aircraft operations at an airfield set up by the JSDF falls under the case where the competent administrative agency’s act of making its disposition goes beyond the scope of the agency’s discretion or constitutes an abuse of such discretion, which is a requirement for an injunction against the administrative disposition prescribed in Article 37-4, paragraph (5) of the Administrative Case Litigation Act, an adequate approach is needed to examine whether or not such exercising of authority is found to be extremely unreasonable in light of societal norms on the assumption that such an act is left to the discretion of the Minister of Defense in the way explained above. For this examination, it is thought to be necessary to comprehensively take the following issues into consideration in the context of the facts pertaining to JSDF Aircraft operations that have been continuing at the Airfield and the noise damage resulting therefrom: whether or not the public good and interest is being served in light of the purpose of JSDF Aircraft operations at the Airfield and the degree of publicness; the nature and severity of the damage suffered by neighboring residents due to the noise generated by such operations; whether or not measures to mitigate the damage are being implemented; and what measures have been implemented, along with other matters.

3. The Supreme Court has therefore reviewed this case from the foregoing perspectives.

(1) According to the facts explained previously, JMSDF’s Fleet Air Wing 4 stationed at NAF Atsugi is engaged in anti-submarine airborne patrols over the seas surrounding Japan as its primary mission, as well as disaster relief and other cooperation in civilian activities, international cooperation, and education and training, etc. In the context of such activities, JSDF Aircraft operations at the Airfield play an extremely important role in terms of protection of the peace and security of Japan or the life, body, property and other interests of its citizens. This means that such JSDF Aircraft operations are highly significant for the public good and interest. As for JSDF Aircraft operations for training purposes, we cannot conclude that they are less public merely because they are training flights, since training on a routine basis is essential for reliable and effective execution of the missions assigned to the JSDF in response to changing domestic and international circumstances. For the same reason, a high degree of publicness is considered to occur with regard to JSDF Aircraft operations during night-time hours.

(2) According to the facts explained previously, the Plaintiffs in the First Instance reside in Class I Areas pertaining to the Airfield and repeatedly and continuously suffer from sleep disorders, listening disturbances, disturbances in carrying out mental tasks and mental anguish such as feelings of discomfort or anxiety concerning health problems due to noise generated by aircraft taking off from and landing at the Airfield. Although it has not been ascertained that the noise described above contributes to particular health problems such as myocardial infarction, other cardiovascular diseases, gastritis, or other digestive diseases alleged by the Plaintiffs in the First Instance, the condition pertaining to sleep disorders described above is fairly serious and the damage resulting therefrom, the severity of which cannot be underestimated, impairs the quality of life of the Plaintiffs in the First Instance.

On the other hand, the facts explained previously show that the aircraft noise generated at the Airfield is mostly attributable to USFJ Aircraft. Looking at JSDF Aircraft operations, Fleet Air Wing 4 implements its self-imposed regulations, called the Atsugi Airfield Regulations, under the authority of the Minister of Defense, as explained before. Based on these regulations, both training flights and trial flights on the ground are basically prohibited every day during the night-time period from 10:00 pm to 6:00 am. Owing to this, the number of takeoffs and landings during the night-time period remained at a total of 83 in fiscal 2013 (i.e., 6.9 times per month on average) and at a total of 53 in fiscal 2014 (i.e., 4.4 times per month on average).

(3) Since JSDF Aircraft operations inevitably generate noise by their very nature, as explained before, a determination of whether or not measures to mitigate the damage arising from such noise generated by JSDF Aircraft operations at the Airfield have been implemented and what measures have been introduced is in order. As explained before, Fleet Air Wing 4 implements self-imposed regulations to restrict JSDF Aircraft operations at the Airfield, and the Defendants in the First Instance have spent more than 1,044 billion yen in total so far for subsidizing the work for noise insulation in housing and for schools and hospitals, for paying relocation compensation, for buying out real estate relevant to the noise damage, or for promoting other environmental development efforts. It is therefore determined that reasonable countermeasures have been implemented to mitigate the damage suffered by the Plaintiffs in the First Instance and other residents living in the vicinity of the Airfield.

(4) Based on the facts concerning JSDF Aircraft operations that have been continuing at the Airfield, the noise damage resulting from such operations, and other related issues, the Supreme Court recognizes the following: JSDF Aircraft operations as described in I.3.(2)(i) to (iii) are found to be highly significant for the public good and interest, and reasonable measures including the self-imposed restrictions on JSDF Aircraft operations are implemented to mitigate the damage suffered by neighboring residents; and the severity of the damage suffered by the Plaintiffs in the First Instance due to the aircraft noise generated at the Airfield cannot be underestimated. Taking all these matters into comprehensive consideration, it is difficult to determine that continuance of JSDF Aircraft operations in the way described above in the future will be extremely inappropriate in light of societal norms.

In conclusion, it is reasonable to determine that the Minister of Defense’s exercising of authority pertaining to JSDF Aircraft operations at the Airfield as described in I.3.(2)(i) to (iii) is not found to fall under the case where the competent administrative agency’s act of making its disposition goes beyond the scope of the agency’s discretion or constitutes an abuse of such discretion, as prescribed in Article 37-4, paragraph (5) of the Administrative Case Litigation Act.

4. As a consequence, there is no good reason to uphold the primary claim of the Plaintiffs in the First Instance to demand an injunction against JSDF Aircraft operations, and this claim should therefore be dismissed. The decision in the second instance described in I.3.(2), which is inconsistent with the foregoing, involves a violation of laws that can obviously affect the judgment in this case. To this effect, the argument of the Defendants in the First Instance is reasonable. Therefore, the parts upholding the primary claim of the Plaintiffs in the First Instance as presented in the judgment in the second instance should be quashed. On the other hand, the argument of the Plaintiffs in the First Instance is obviously unfounded, and thus unacceptable.

The actions pertaining to the secondary claim filed by the Plaintiffs in the First Instance in connection with JSDF Aircraft are a public law-related suit secondarily filed by way of joinder of actions, and each of those actions is substantially the same as the primary claim explained above. Actions filed in such a way should not be accepted. Therefore, such parts in the actions pertaining to the secondary claim that are incompatible with the primary claim are unlawful and thus should be dismissed without prejudice.

5. Other claims covered by the final appeal filed by the Plaintiffs in the First Instance should be dismissed with prejudice on the merits because the reasons for the petition for acceptance of the final appeal have been ruled out in the course of making a decision accepting the final appeal.



IV. Conclusion

Based on all of the foregoing, the final appeal of the Plaintiffs in the First Instance shall be dismissed with prejudice on the merits, the parts of the judgment in the second instance for which the Defendants in the First Instance are defeated shall be quashed in line with the final appeal of the Defendants in the First Instance, the judgment in the first instance corresponding to the parts for which the Defendants in the First Instance are defeated shall be rescinded, the primary claim of the Plaintiffs in the First Instance shall be completely dismissed with prejudice on the merits, and the actions pertaining to the secondary claim of the Plaintiffs in the First Instance in connection with the parts for which the Defendants in the First Instance are defeated shall be dismissed without prejudice.

The justices unanimously render a judgment as stated in the main text. In this regard, a concurring opinion has been delivered by Justice KOIKE Hiroshi.

The concurring opinion of Justice KOIKE Hiroshi is as follows.

While I agree with the court’s opinion, I would like to express my opinions as to how to understand the requirement for filing a suit and the requirement for rendering a judgment in favor of the plaintiff in connection with the primary claim of the Plaintiffs in the First Instance to demand an injunction against JSDF Aircraft operations.

1. In order to institute a suit demanding an injunction against JSDF Aircraft operations pursuant to Article 37-4 of the Administrative Case Litigation Act, the likelihood must exist of serious damage referred to in paragraph (1) of the same article that comes as a result of such operations. The Plaintiffs in the First Instance have been repeatedly and continuously suffering from sleep disorders and mental anguish, the severity of which cannot be underestimated, due to the noise generated by USFJ Aircraft and JSDF Aircraft taking off from and landing at the Airfield. JSDF Aircraft operations contribute to the damage resulting from the noise as aforementioned, and the noise is generated whenever JSDF Aircraft take off or land. If JSDF Aircraft operations involving takeoffs and landings are conceived as a type of administrative disposition (i.e., as the exercising of the authority of the Minister of Defense), this disposition is completed when JSDF Aircraft have taken off or landed in each instance. Therefore, subsequently fighting over the illegality of the administrative disposition and obtaining a remedy by way of a suit to seek revocation of the disposition is an ineffective approach for resolving the damage from the situation described above. In light of the severity of the aforementioned damage resulting from the aircraft noise, characteristics of JSDF Aircraft operations, and other circumstances, the aforementioned action for demanding the injunction is considered to be based on the likelihood of serious damage referred to in Article 37-4, paragraph (1) of the Administrative Case Litigation Act, and therefore the requirement for filing a suit is fulfilled.

Given that the requirement for filing a suit is fulfilled in the manner explained above, the court is obliged to judge whether deviation from the scope of discretion or an abuse of discretion has taken place or not (whether the requirement for rendering a judgment has been fulfilled or not) based on the content and nature of the authority of the Minister of Defense to be exercised as well as other related issues. The damage arising from the noise generated by JSDF Aircraft operations as aforementioned is one of the factors that must be comprehensively considered, together with the content and nature of the authority of the Minister of Defense to be exercised, in order to render a judgment in this case.

2. The peace and security of Japan, which is an indispensable foundation ensuring freedom, human rights and the like for Japan’s citizens, constitutes an invaluable benefit. As stated in the court’s opinion, the Minister of Defense supervising JSDF missions is to exercise authority pertaining to JSDF Aircraft operations required to perform patrols over the seas surrounding Japan, disaster relief and other cooperation in civilian activities, education and training, and other activities in response to domestic and international events that could affect protection of the peace and security of Japan or the life, body, property and other interests of citizens for the purpose of protecting their benefits, as aforementioned. Various defense operations and related activities are not only intended to respond to direct and indirect aggression or other emergency situations, but are also required to maintain a certain performance level with regard to such activities and to ensure effectiveness based on a well-developed regime at all times, thereby enabling the JSDF to act flexibly according to domestic or international events in order to fulfill JSDF missions. Therefore, the Minister of Defense’s exercising of authority pertaining to JSDF Aircraft operations requires highly political and professional decision-making, which must follow comprehensive consideration of both domestic and international situations, the purpose and necessity of each JSDF Aircraft operation, and various other circumstances. Due to the characteristics of such operations, it is difficult to objectively predefine and restrict the scope of decision-making based on the necessity, urgency and other aspects of potential scenarios. As a result, exercising the aforementioned authority needs to be left to the broad discretion of the Minister of Defense.

3. As ascertained in the court’s opinion, the Minister of Defense and the Defendants in the First Instance have been implementing reasonable measures to prevent and mitigate the aforementioned damage arising from areas around the Airfield due to noise. However, in view of the fact that JSDF Aircraft operations inevitably generate noise by their very nature, and that the residents living in the vicinity of the Airfield have been suffering from the damage resulting from the noise generated by such operations, compensation for these residents has so far been approved. In this way, the performance of JSDF missions entails two conflicting issues that are difficult to address in a well-coordinated manner: i.e., the efforts to protect the benefits of the entire population of Japan through the Minister of Defense’s exercising of the authority pertaining to JSDF Aircraft operations, and the efforts to avert a detrimental situation where JSDF Aircraft operations at the Airfield generate noise and cause damage in the vicinity of the Airfield. I consider that how to actually address these issues should be determined and implemented in diversified forms according to the details of the related situations, their severity, and other factors.

In light of all the circumstances described above where the two conflicting demands interact as aforementioned, it is difficult to determine that the act of operating JSDF Aircraft while implementing reasonable measures for preventing or mitigating the damage resulting from the aforementioned noise at the Airfield is extremely inadequate, and it is impossible to ascertain that the Minister of Defense’s exercising of authority as aforementioned deviates from the scope of discretion or involves an abuse of discretion.
Justice KOIKE Hiroshi

Justice SAKURAI Ryuko

Justice IKEGAMI Masayuki

Justice OTANI Naoto

Justice KIZAWA Katsuyuki
The Other Case Number(s): 2015 (Gyo-Hi) 513
(This translation is provisional and subject to revision.)