by Daniel Fisch
Israel, like many other countries in the world and the region, is facing an increasingly serious and pervasive environmental crisis. Development trends over the past 15 to 20 years have brought increasing pressure on the country's environment. In almost every area it is easy to perceive tough problems.
Water sources - streams, rivers and underground aquifers - are endangered by industrial and municipal sewage. Pollution taints almost all the country's rivers and streams. In the most densely populated central coastal region from Tel Aviv to Haifa, the situation is extremely troublesome as sewage treatment installations cannot keep pace with the needs of fast-growing cities and towns.
Disposal of solid waste has become an especially thorny issue. Today, over 90 percent of the solid waste generated in the country is buried in primitive landfills. The massive Hiria dump outside Tel Aviv was recently ordered closed as the height of the mountain of garbage had become a menace to over-flying flights to and from Ben-Gurion Airport. Government plans to transfer Tel Aviv's solid waste to a site outside Beersheba are encountering vociferous opposition from local residents.
A steep rise in automobile use has brought a sharp increase in air pollution all around the country and especially near larger urban centers, such as Tel Aviv and Jerusalem. Vehicular emissions exacerbate prevailing air pollution problems caused by the coal- and oil-fired electric power plants located up and down the Mediterranean coast. And this is only a partial list of the environmental woes facing the nation.
In the face of such problems, it becomes important to know who is responsible, what is being done and what can be done to fight pollution. Government ministries are often hard-pressed to offer solutions both over the long and short term. Typically they lack the funding and the personnel necessary to tackle environmental issues on a systematic basis. Most often, responsibility for dealing with a wide variety of issues falls on the Environment Ministry. This ministry is a fairly recent addition to the government, having been officially established in 1988. Relative to larger, more established ministries, its mandate is limited, its budget small and number of personnel modest. At present, this ministry certainly does not have sufficient resources to successfully reverse negative trends.
The Role of the Public
The greatest threats to the environment are those facing common resources, such as public lands, water supplies and air quality. Where governmental action is inadequate, the public must find ways to effectively protect these resources. Otherwise, they will continue to suffer neglect, or worse, abuse by polluters.
As the country becomes more sophisticated with many competing interests on the national scene, use of the legal system by the public and its representatives has proven to be a powerful tool for the protection of the environment.
Because Israel is a common-law country, its court system is based on adversarial procedure where opposing sides appear before a trial judge in court. There are no juries and the judges preside both over the court proceedings and render a verdict. Similar to many other common-law countries, the legal system is complex and its rules of procedure often obtuse. Usually, people need the professional assistance of lawyers to navigate through it successfully when pressing their claims. Where protection of the environment is at stake, it is almost always necessary to use expert scientific opinion as well.
Environmental Law in Israel
Israel possesses a fairly large body of environmental statutes and regulations. These can be divided generally into two groups. The first is a group of older statutes based upon tort-nuisance law provisions, building codes, health codes, and acts relating to the use of natural resources, such as water or quarrying. At the beginning of the 1980s, an additional group of statutes was legislated. Today, this list extends to many new areas, with laws relating specifically to environmental concerns. Among them are regulations requiring the carrying out of environmental impact studies, new anti-pollution provisions to prevent water pollution, laws and regulations against pollution of the sea from land-based sources and shipping, regulations against harmful noise, a recycling law, land-planning statutes for the preservation of forested areas, and more.
In addition to these laws, new major legislation has been added, much of it during the last decade, and several existing statutes have been amended to allow for greater public participation in the legal process. Public participation under these statutes can take the form of either criminal or civil prosecutions. Both of these channels make a wide variety of legal actions available to the public.
Criminal suits can be filed under the modern version of English common-law private prosecutions. These prosecutions, once almost a defunct relic of medieval English common law, have come to form the backbone of citizen enforcement of environmental regulations in Israel. Private prosecutions can be filed under the Water Law for water pollution; under the Act for the Prevention of Pollution of the Sea from Land-Based Sources for pollution of the sea; under the Anti-Litter Act for illegal disposal of waste; under the Dangerous Materials Act for failure to take required precautions with dangerous substances; and under the Prevention of Environmental Nuisances Act for illegal air, noise or odor pollution.
By using private prosecutions; individuals or environmental groups can take action when government authorities fail to act. Private citizens can file these types of prosecutions for environmental transgressions that directly affect them and cause them damages. Several non-profit environmental organizations operating on behalf of the public have received a more powerful mandate to file private prosecutions under these same laws. They are not required to show damages in order to initiate criminal charges, which grants them special status to protect the public's interest in a clean environment.
The ability of citizens and groups to enforce environmental regulations in the domain of civil law was bolstered in 1992 with the passage of the Law for the Prevention of Environmental Nuisances (Civil Actions) Act. This law was specifically designed to encourage greater environmental enforcement through the use of the legal system on the part of the public. It covers a very wide array of pollution-causing activities, including water pollution, air pollution, pollution from radiation, etc.
Environmental Advocacy in Practice
The Kishon River is one of the most polluted bodies of water in Israel. In the last several-kilometer stretch between the river and the sea, there is almost no life whatsoever to be found. The Kishon was not always dead. As the third-largest river in Israel, it once supported a wide variety of aquatic species and other wildlife. Today, the river is a dangerous chemical stew of raw, untreated sewage from the City of Haifa, harsh acidic solutions with extremely high heavy-metal content from industrial effluents, dangerous levels of ammonia, detergents, benzene derivatives and other pollutants. Pollution from the river flows out to sea and abnormally high concentrations of heavy metals have been detected on the sea bottom several kilometers from the river's mouth in Haifa Bay.
For over 20 years, government authorities proved unable to stop industrial polluters from using the Kishon as a convenient place to dump dangerous effluents. There seemed to be no real reason to believe that the river would ever be cleaned up.
In the beginning of 1994, Dr. Mouna Noufi, chief scientist from Adam Teva V'Din - the Israel Union for Environmental Defense (IUED) - tested effluent from several factory outlets that flowed directly into the river. The test results showed extreme divergence from permitted effluent levels for almost all of the factories checked. When IUED representatives later confronted the industries with the results, two factories, responsible for a large portion of the pollution entering the river, showed no willingness to take serious steps to treat their effluent and stop polluting the river.
The IUED filed criminal suits against these two factories, Haifa Chemicals and Deshanim Ltd. Two and a half years later, the lawsuits ended in a court¨approved agreement under which the factories agreed to install over $17 million worth of anti-pollution technology and pay close to $1 million in legal costs and to fund further environmental work on the river over a four year period. A year and a half has passed since then. The polluting factories have already spent several million dollars to develop and install treatment systems for their effluent and are ahead of the schedules set in the agreements.
Another good example of environmental advocacy in action is the initiative undertaken to determine the effects of pollutants on Israel's Mountain Aquifer. The Mountain Aquifer is a cardinal source of water for both Israelis and Palestinians. Despite this, not enough research has been carried out to discover the effects of pollutants on the aquifer. Here too, environmental activists have taken action. In 1995, IUED hydrologist Dror Avisar, in partnership with a team of scientists from Bethlehem University, Dr. Alfred Abed Rabbo and Dr. David Scarpa, began a two-year study of the aquifer. They conducted water-quality tests for hundreds of wells in the aquifer, examining many parameters previously unchecked. Their findings will help both Palestinians and Israelis to better understand the importance of preserving the purity of this water source.
Despite the relatively large amount of legislation and the varied possibilities for environmental enforcement on the part of the public, most of the public's activities in the field of legal advocacy for a better environment are confined to opposition and lawsuits over construction projects. Very few suits, either criminal or civil, are filed by members of the general public to prevent pollution. And even where opposition to construction projects is concerned, people are often daunted by the complexity of the legal system. Because lawyers are expensive, in many instances people often feel that they have no viable method of using the legal system.
Thus, use of the courts is often left solely to environmental organizations such as the IUED, which has filed the majority of environmental lawsuits tried in Israel over the past several years. The record shows that the judiciary is sensitive to environmental issues and willing to hand down verdicts that halt pollution or force polluters to take action. There is still a great need to continue to develop better environmental laws and regulations, especially those that would allow the public to receive more information about polluters and pollution threats. It is no less important to continue to enforce existing laws that force polluters to pay for their actions. Experience has shown that the public must be able to enforce its environmental rights and that the court system is the central arena where this can be achieved.