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Upgrading Citizen Suits as a Tool for Environmental Enforcement in Israel: A Comparative Evaluation

Published online by Cambridge University Press:  04 July 2014

Orit Marom-Albeck  and
Alon Tal
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Israel's environmental problems have grown increasingly severe over the past decade, bringing contamination of the air and water to crisis levels and scarring a landscape that has particular historic and religious value internationally. A comprehensive report prepared by over 100 leading scientists and professionals about present environmental trends in the country was particularly discouraging. Israel's former Minister of Environment Rafael Eitan also began an international report about the country's environment with an unusually frank appraisal of the situation: Damage to natural and landscape resources, deteriorating air and groundwater contamination have reached a level where it “threatens to rob us and our children of our right to quality of life and the environment.”

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Israel Law Review , Volume 34 , Issue 3 , Summer 2000 , pp. 373 - 424
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2000

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References

1 Towards Sustainable Development, Preliminary Documents (Jerusalem, Israel Ministry of Environment, 1999)Google Scholar.

2 See, generally, National Environmental Priorities in the Area of Environmental Quality in Israel (Haifa, Neeman Institute, 1999, 2001)Google Scholar.

Environmental quality in Israel requires pressing actions and many emphases. We find ourselves in a situation where the air we breathe in many cases is above the standard, illness and death caused by environmental pollution is commonplace, and we are speaking about thousands of cases. In a number of areas in Israel, illness among elementary school children is widespread. Clean water almost does not exist. Garbage is stacked in dumps, only few of which meet international standards.

3 Eitan, Rafael, in Gabbay, Shoshana, The Environment in Israel (Jerusalem, Israel Ministry of Environment, 1998) at xiiiGoogle Scholar.

4 Alon Tal, , Air Pollution from Transportation, Tevah V'Aretz, September, 1999Google Scholar.

5 Fisch, Daniel, “Israel's Environmental Problems” (1998) 5 Israel Palestine Journal 20Google Scholar.

6 Karassin, Orr, Bar-David, Shirli and Alon Tal, , Harnessing Activism to Protect Israel's Environment, A Survey of Public Interest Activity and Potential (Tel Aviv, Adam Teva v'Din, 1996)Google Scholar.

7 Chen, Shmuel, “Green Ballots in the Voting Booth” (1999) 23 Green, Blue and White 4Google Scholar.

8 While no formal academic surveys have explored the attitudes of the Israeli public, popular journalistic polls repeatedly reflect environmental concerns. See Yediot Ahronot, “Holiday Supplement”, October 1, 1997.

9 Freedom of Information Law, Sefer Chokim, 1998Google Scholar.

10 Shabekoff, Philip, quoting Sive, David, a leading public interest attorney, in A Fierce Green Fire, The American Environmental Movement (New York, Hill and Wang, 1993) 103Google Scholar.

11 See for example: Makawa, Earnest, “Experience of Malawi: Public Role in Enforcement,” Fifth International Conference on Environmental Compliance and Enforcement, Conference Proceedings (Washington, U.S. EPA, 1998) at 169Google Scholar. Narayab Belbase, “Environmental Compliance and Enforcement Through Public Litigation in the Godavari Area in Nepal”, idem at 423; William Ringia, “Public Access to Environmental Information – Legal and Practical Prolems: A Case Study of Tanzania”, idem at 203; Oposa, A., “Intergenerational Responsibility in the Philippine Context as a Judicial Argument for Public Action on Deforestation”, Fourth International Conference on Environmental Compliance and Enforcement, Conference Proceedings (Washington, U.S. EPA, 1996) at 521Google Scholar.

12 The contribution of an anonymous reviewer to this list of sociological factors is gratefully ackowledged.

13 See, generally, Segel, Zev, “The Right of Standing in a Public Petition: Its Tests and Problems” (1992) 15 Iyunei Mishpat 391Google Scholar.

14 For example, in Society for the Protection of Nature v. National Planning Commission, Netanyahu, J., required the preparation of a two-year migration survey before an environmental impact statement would be acceptable for considering the effect of a giant transmitter to be built by the Voice of America in the Central Arava region. See DeShalit, A. and Talias, M., “Green or Blue and White? Environmental Controversies in Israel” (Summer, 1994) 3 Environmental Politics 274Google Scholar. More recently, the Tel Aviv District Court held that an environmental impact statement had to be prepared before the submission of a plan in order to ensure the public's right to file objections. H.P. 210/96 Adam Teva v'Din v. Tel Aviv Regional Planning Committee et al. (unpublished).

15 A survey of environmental litigation during the decade revealed only a handful of such actions relative to dozens of other administrative petitions. Marom, Orit, “Public Enforcement of Environmental Law: Theories and Practice”, Masters thesis (in preparation, 2000)Google Scholar.

16 One interesting case of this type involved a petition to the High Court of Justice during the 1999 election campaign, in which the petitioner claimed the respondent Election Committee was not enforcing provisions of the Cleanliness Law, which prohibits the posting of campaign posters in inappropriate locations. A justice on the Supreme Court itself was the head of the Committee, making the case somewhat awkward if not controversial. Yet, given the time constraints of a three-month election campaign, it was considered a more efficient route than directly suing the many political parties that had blanketed the cities of Israel with election propaganda posters, in contravention of the law. Ultimately the Court rejected the appeal following the state's announcement that it would take the measures it was authorized to. Nonetheless, in the Court's decision, Or, J., chose to “once again direct the authorized bodies to the need to enforce the law in areas of their authority regarding prohibited election signs and to bring violators to justice.” Adam Teva v'Din v. Justice A. Matza, Chairman of the Election Committee et al., Bagatz 1996/99.

17 Adam Teva v'Din v. Minister of Interior et al., Bagatz 1131/93 (lack of sewage treatment for Ramla and Lod); Keren Herzl et al. v. Minister of Environment et al., Bagatz 3410/93 (sewage from Ra'anana, Even Yehudah and Tel Mond flowing into the Poleg River). On Israeli public interest litigation concerning untreated sewage waste and pollution, see, generally, Tal, A., “Civil Actions to Expedite Treatment of Municipal Effluents in the Poleg Spring, the Limitations and Potential of Legal Actions against Polluting Municipalities” (1995) 5 Ecology and Environment 151–55Google Scholar (in Hebrew).

18 Miller, Jeffrey G., Citizen Suits: Private Enforcement of Federal Pollution Control Laws (New York, Wiley and Sons, 1987)Google Scholar; Axline, Michael, Environmental Citizen Suits 1-8, looseleaf service, 3d ed. (Salem, NH, Butterworths, 1994)Google Scholar.

19 Macfarlane, Ross and Terry, Lori, ”Citizen Suits: Impacts on Permitting and Agency Enforcement”, Natural Resources and Environment, Spring 1997, at 20Google Scholar.

20 The court required that Consolidated Edison consider alternatives to a pumping station at the site, including the alternative of not building a facility at all.

21 “Contemporary public concern for protecting nature's ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation.” Sierra Club v. Morton, 405 U.S. 727 (1972), at 741-2. Stone's, Christopher essay, “Should Trees Have Standing” (1972) 45 So. Cal. L. Rev. 450Google Scholar, written during the same period, has also assumed “classic dimensions” in the field of environmental law.

22 405 U.S. 727 (1972), at 741-42. A survey of eight American environmental law textbooks included extensive quotations from this landmark case, which ironically ended in the Sierra Club losing the case due to its failure to meet standing requirements.

23 504 U.S. 555 (1992). This decision came on the heels of the related Lujan v. National Wildlife Federation, 497 U.S. 871 (1990), in which the Supreme Court case refused to recognize the plaintiffs right to challenge in court, as a violation of the National Environmental Policy Act, a decision by the U.S. Secretary of the Interior to make more than 160 million acres of federal lands available for commercial use.

24 See, e.g., critiques of the decision in Sunstein, Cass R., “What's Standing After Lujan of Citizen Suits, Injuries and Article III” (1992) 91 Mich. L. Rev. 163CrossRefGoogle Scholar; Harold Feld, “Saving the Citizen Suit: The Effect of Lujan v. Defenders of Wildlife and the Role of Citizen Suits in Environmental Enforcement” (1994) 19 Colum. J. Env. L. 141; William Orr, “Florida Audubon Society v. Bensten, An Improper Application of Lujan to a Procedural Rights Plaintiff” (1997) 15 Pace Env. L. Rev. 373.

25 “First the plaintiff must have suffered an ‘injury in fact’, an invasion of a legally protected right which is (a) concrete and particularized and (b) actual or imminent, not ‘conjectural’ or ‘hypothetical’. Second, there must be a causal connection between the injury and the conduct complained of – the injury has to be ‘fairly’ traceable to the challenged action of the defendant and not the result of the independent action of some third party not before the court. Third, it must be ‘likely’ as opposed to merely ‘speculative’ that the injury will be redressed by a favorable decision.” Lujan, supra n. 23, at 560.

26 432 U.S. 333 (1977), at 343.

27 Public Interest Research Group of New Jersey, Inc. v. Powell Duffryn Terminals Inc., 913 F.2d 64 (3d Cir. 1990), cert. denied 498 U.S. 1109 (1991).

28 Sierra Club v. Cedar Point Oil Co., 73 F.3d 546 (5th Cir. 1996).

29 Friends of the Earth v. Crown Central Petroleum Corporation, 95 F.3d 358 (5th Cir. 1996).

30 Clean Air Act, 42 U.S.C. 1857h-7 et seq. (amended 1970), §304-7604, Citizen Suits.

31 See DuBoff, Scott M., “The 1990 Amendments and Section 304: The Specter of Increased Citizen Suit Enforcement”, Natural Resources and Environment, Fall 1992, p. 34Google Scholar.

32 Endangered Species Act, 16 USCA 1540(g).

33 The Resource Recovery Act, 42 U.S.C. 6972; Emergency Planning and Community Right-to-Know Act 42 U.S.C. 11046.

34 Fiends of the Earth v. Carey, 535 F.2d 165 (2nd Cir. 1976) at 172.

35 Clean Water Act, 33 U.S.C. 1365, §101 (a).

36 Ibid., §505(a)(1).

37 Ibid.

38 Price, Courtney M., “Private Enforcement of the Clean Water Act” (1986) 1 Natural Resources & the Environment 31Google Scholar; Elliot, Sharon, “Citizen Suits under the Clean Water Act: Waiting for Godot in the Fifth Circuit” (1987) 62 Tulane L. Rev. 175Google Scholar; Russo, Steven, “States, Citizens and the Clean Water Act: State Administrative Enforcement and the Diligent Prosecution Defense” (1996) 4 N.Y.U. Env. L.J. 211Google Scholar; John Dolegetta, “Friends of the Earth v. Crown Central Petroleum: The Surrogate Enforcer must be Allowed to ‘Stand Up’ for the Clean Water Act” (1998) 15 Pace Env. L. Rev. 707.

39 Clean Water Act, supra n. 35, §505)b)(1)(B).

40 42 U.S.C. 4321.

41 5 U.S.C. 552 (1992). Not surprisingly, the Freedom of Information Act also contains citizen suit provisions to enable citizens who submit a request for information to determine in court whether they have been unjustifiably denied.

42 Axline, Environmental Citizen Suits, supra n. 18, at chapters 1-3.

43 Clean Water Act, 33 U.S.C. 1342, §482.

44 Public Interest Research Group of New Jersey, Inc. v. Powell Duffryn Terminals Inc., 913 F.2d 64 (3d Cir. 1990), cert, denied 498 U.S. 1109 (1991).

45 DuBoff, “The Specter of Increased Citizen Suit Enforcement”, supra n. 31, at 34.

46 Clean Air Act, §304(a).

47 Clean Air Act, §304(a)(1).

48 Gwaltney of Smithfield Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49 (1987).

49 DuBoff, “The Specter of Increased Citizen Suit Enforcement”, supra n. 31, at 34.

50 40 CFR §70.6(a)(3)(iii).

51 Clean Air Act, §114 (a)(1).

52 DuBoff, “The Specter of Increased Citizen Suit Enforcement”, supra n. 31, at 35.

53 Sierra Club v. Union Oil Co., 716 F. Supp. 429 (N.D. Cal. 1988) at 433. See also Connecticut Fund for the Environment v. Stewart Warner, 631 F. Supp. 1286 (D. Conn. 1986) at 1288.

54 Leslie Salt Co. v. United States, 55 F.3d 1388 (9th Cir. 1995) at 1397.

55 In Ruckelshaus v. Sierra, 463 U.S. 680 (1983), the Supreme Court essentially put an end to awards for unsuccessful petitioners but did not disallow attorneys' fees for partially successful petitioners.

56 A U.S. 5th Circuit opinion, Johnson v. Georgia Highway Express Inc., 488 F.2d 714 (1974), set forth the criteria on which attorneys' fees are based. They are the time and labor required, the novelty and difficulty of the issues involved, the skill needed in order to provide proper representation; the extent to which one is precluded from other employment, the nature of the professional relationship with the client, and awards in similar cases.

57 In fact, after almost twenty years of environmental citizen suits, in only one reported case was a public interest action found sufficiently “frivolous” to justify an award to the defendants. Miller, Citizen Suits, supra n. 18, at 108.

58 National Wildlife Federation v. Consumers Power Co., 729 F. Supp. 62 (W.D. Mich. 1989).

59 42 USC §2000-a-3(b), 2000e-5(k)-1964.

60 15 USC 77k(e) 1933.

61 Miller, Citizen Suits, supra n. 18, at 108.

62 Macfarlane, Ross and Terry, Lori, “Citizen Suits: Impacts on Permitting and Agency Enforcement”, Natural Resources and Environment, Spring, 1997, at 21Google Scholar.

63 Sarmiento, German, “Popular Actions and the Defense of the Environment in Columbia”, in Proceedings of the Third International Conference on Environmental Enforcement (Washington, D.C., U.S. EPA, 1994) at 262Google Scholar.

64 Articles 1005 and 2359.

65 International Network for Environmental Compliance and Enforcement, Citizen Enforcement: Tools for Effective Participation (Washington, D.C., 1998) at 10Google Scholar.

66 Habib, Ehsanul, “Public Interest Environmental Litigation: A Tool to Ensure Compliance and Enforcement”, in Proceedings of the Fifth International Conference on Environmental Enforcement (Washington, D.C., U.S. EPA, 1998), at 445Google Scholar.

67 Farooque v. Bangladesh et al. (Writ Petition No. 990 of 1994), as reported in Habib, “Public Interest Environmental Litigation”, supra n. 66.

68 “Insofar as it concerns public wrong or public injury or invasion of fundamental rights of an indeterminate number of people, any member of the public, being a citizen, suffering the common injury or common invasion of fundamental rights of an indeterminate number of people, in common with others, or any citizen or an indigenous association, as distinguished from a local component of a foreign organization espousing that particular cause, is a person aggrieved and has the right to invoke the jurisdiction under Article 102.”

69 Johnson, James, “Civil Enforcement of Environmental Laws in Australia”, in Proceedings of the Fifth International Conference on Environmental Enforcement (Washington, D.C., U.S. EPA, 1998) at 436Google Scholar.

70 Mischenko, Vera and Rosenthal, Erika, “Successful Environmental Enforcement in Russia: The First Successful Nation-Wide Case”, in Proceedings of the Fifth International Conference on Environmental Enforcement (Washington, D.C., U.S. EPA, 1998) at 419Google Scholar.

71 Luna, Maria Paz G., “Enforcing Environmental Laws in a Developing Country: An Alternative Law Approach” (1998) 15 TAU Stud. in L. 177Google Scholar.

72 “Save as provided in this Article, Member States shall ensure that public authorities are required to make available information relating to the environment to any natural or legal person at his request and without his having to prove an interest.” Article 3(1) Council Directive 90/313 EEC on Freedom of Access to Information on the Environment.

73 While the EC has yet to create a formal international legal format for filing citizen complaints, the rudiments of such a system were created under the North American Free Trade Agreement. Since 1995 any citizen or nongovernmental organization in Canada, the U.S. or Mexico is entitled to file a submission with the Secretariat of the Commission for Environmental Cooperation charging a NAFTA country with failure to enforce its environmental laws. The Commission must investigate the complaint and issue a factual record. As the ministers of environment in these countries are parties to the matter, a two-thirds vote of the participants leads to the publication of the factual record which has great declarative influence. To date, eighteen submissions have been filed, the most successful involving the Mexican government's failure to enforce domestic law while conducting an environmental impact assessment in Cozumel. See generally: International Network for Environmental Compliance and Enforcement, Citizen Enforcement: Tools for Effective Participation (Washington, D.C., 1998) at 18Google Scholar.

74 Environmental Liability Act, Act No. 225, April, 1994.

75 Sec. 906 of the BGB.

76 Wusterland, Stefand, “Public Environmental Law in Sweden”, in Seerden, R. and Heldeweg, M., eds., Comparative Environmental Law in Europe, An Introduction to Public Environmental Law in EU Member States (Antwerp, Malkin, 1996) 391Google Scholar.

77 K. Weber, “Public Environmental Law in Austria”, in Seerden and Heldeweg, eds., Comparative Environmental Law in Europe, supra n. 76, at 30.

78 Article 13 of Law 349/86. The criteria for selection are: the national character of the organization; its presence in at least five regions; its declared purpose of environmental protection and democratic statutes; the continuity of the activity undertaken; and the external relevance of the activity.

79 Francisco Francioni and Massimiliano Montini, “Public Environmental Law in Italy”, in Seerden and Heldeweg, eds., Comparative Environmental Law in Europe, supra n. 76, at 262.

80 Sec. 91, Italian Code of Criminal Procedure.

81 Court of Causation, § III. Judgment no. 1584, October 13, 1993 (unreported).

82 HR 17 June 1986 AB 1987 (Nieuwe Meer).

83 HR 18 December 1992 M en R 1993/4, 24 (Kuunders), and Rechtbank Rotterdam, 15 March 1991 TMA 1991-2 p. 27 (Borcea).

84 Nieuwe Meer, supra n. 82, at 173.

85 René Seerden and Michiel Heldeweg, “Public Environmental Law in the Netherlands”, in Comparative Environmental Law in Europe, supra n. 76, pp. 262, 306.

86 Until then, the chief environmental player was the Environmental Protection Service, originally set up as an advisory department in the Prime Minister's office and moved in 1976 to the Ministry of Interior. The Service's primary function was to advise on planning policy, and it only took on an enforcement role in 1980 when it assumed responsibility from the Ministry of Transportation for the newly retrofitted Oil Pollution Ordinance. Another important landmark was the 1982 government decision to merge the Health and Interior Ministers' authority under Israel's Abatement of Nuisances Law (Yalkut Pirsumim, 1982, p. 1736Google Scholar), for the control of noise, air quality and odors. During this time, a variety of proposals were put forward to upgrade the Service, although this only became possible due to the unique political circumstances and Likud MK Ronni Milo's personal interest in the position. See Tal, A., Pollution in a Promised Land, An Environmental History of Israel (Berkeley, Univ. of California Press, 2002)Google Scholar, chapter 9.

87 The Environmental Protection Service initiated the first major prosecution concerning air quality against Haifa's Oil Refineries. It was soon resolved after a plea-bargain in which the indictment of the company chairman, Zvi Zamir, was expunged in return for a guilty plea by the corporation. State of Israel v. Haifa Oil Refineries, T.P. 2004/87, Haifa Magistrate Court, 1987. See also Tal, supra, note 86.

88 For instance, in 1987, before the Ministry was established, the Environmental Protection Service proudly reported thousands of prosecutions against Israeli litterers.

89 Abatement of Nuisances Law, the Water Law, Protection of Cleanliness Law, Hazardous Substances Law, Oil Pollution Prevention Ordinance, Collection of Garbage for Recycling Law, Deposit Law, Marine Pollution Prevention Law (Dumping of Garbage), Marine Pollution Prevention Law (Land Based Sources), Cruelty to Animals Law.

90 “Report regarding the Handling of Investigation Files”, internal Ministry of Environment memo, on file with authors, 1999.

91 Tal, Alon, “Six Reasons For a Severe Crisis” (1993) 47 Politica, at 48–51Google Scholar.

92 Society for Preservation of Nature in Israel et al. v. National Planning Board et al., Bagatz 3476/90 (unpublished) 1990. Here the court ruled that a “serious impact statement must be prepared before any decision is made about the location of the transmitter” (at p. 2).

93 C.A. 44/76 Ata v. Schwartz (1976) 30(iii) P.D. 785.

94 Bagatz 2920/94 Adam Teva v'Din et al. v. National Planning Commission et al. (2001) 50(iii) P.D. 446. The Trans-Israel Highway was challenged once again in 1999 on the basis of changes in the tender, but here, too, the Supreme Court was decidedly pro-development and anti-environmental in its interpretation of the relevant statutes. Adam Teva v'Din v. Minister of Treasury et al., Bagatz 4119/99 Tk-AL 99(3), p. 793.

95 See, e.g., Adam Teva v'Din et al. v. Safed Municipality, Bagatz 1582/95, on the city's effluents flowing into the Ahmud Stream and from there to Lake Kinneret, a case which awaited a final decision for five years.

96 Adam Teva v'Din v. Minister of Interior et al., Bagatz 1131/93. The petitioner's request for a formal court declaration detailing a municipality's responsibility to treat its sewage was rejected due to the assertion by the cities of Ramlah and Lod of their intention to improve treatment in the future.

97 It is conceivable that District Courts are truly indifferent to or unaware of political pressures, thus allowing for more aggressive interpretation of environmental laws.

98 Association for Quality of Life and the Environment in Nahariah et al. v. City of Nahariyah et al. (1998) A.M. 166/98 Haifa District Court, 1998.

99 Aliman v. National Planning Board, H.P. 2073/95 Tel Aviv District Court (unpublished) 1995.

100 H.P. 210/96 Adam Teva v'Din v. Regional Planning Committee of Tel Aviv-Jaffa et al. (unpublished).

101 Israel Water Law, 1959, Sefer HaChokim, 1959, p. 169Google Scholar, §§140-147.

102 Citizens for the Western Galilee Environment and Adam Teva v'Din v. Water Commissioner et al., Water Appeal 11/93, Haifa District Court (unpublished). The case formally filed against the Water Commissioner was actually directed against the Miluot food production plants. When the parties reached an agreement on a timetable for construction of a treatment facility, the case was discontinued.

103 Talitman, D., “On Marine Pollution Enforcement”, Blue Green and White (January, 2000)Google Scholar.

104 There is an “honor list” of exceptions to this rule. During the 1960s, Shimon Kanovich pioneered air and noise legislation and Yizhar Sminlanksy shepherded through the Knesset the crucial statutory infrastructure for nature preservation. During the 1970s, MK Yosef Tamir was responsible for several green legislative initiatives and more recently, Knesset members like Dedi Tzuker, Beni Temkin, and Uzi Landau were environmental sparkplugs. See generally Tal, Pollution in a Promised Land, supra n. 86, chapters seven and nine.

105 Tamir, Yosef, Knesset Member (Jerusalem, Ahiabar, 1987)Google Scholar.

106 Bloom, Abraham, “Thirty Years of Education for the Environment – in the World and in Israel” in Proceedings of Environmental Education in the Educational System, Scientific and Educational Aspects, March 23-24, 1999, Beit Berl, Kfar Saba, 13–14Google Scholar.

107 Schwartz, Eilon et al. , From Nature Protection to Environmental Practices, A Report on Developments in Environmental Education in Israel (Tel Aviv, The Heschel Center, 1997)Google Scholar.

108 While precise numbers are impossible due to the ephemeral nature of many organizations or the issue that sparked their creation, today there are well over a hundred NGOs working in all parts of Israel. Typically they can be divided into two groups: large, professional organizations like the Society for the Protection of Nature in Israel (SPNI) with its 50,000 members, and Adam Teva v'Din – Israel Union for Environmental Defense, a public interest law organization; and small, voluntary groups active at the local level. See Bar-David, S. and Tal, A., “Harnessing Environmental Activism”, Report prepared for CRB Foundation, 1996Google Scholar.

109 The Palestine Gazette, 1944, Appendix 1, Number 1389, p. 93, later codified in Sefer HaChokim 1960, p. 340Google Scholar.

110 Civil Wrongs Ordinance, §44.

111 Eden Hotel Jerusalem et al. v. Garzon et al. (1955) 8 P.D. 1121; Reiss v. Kofef (1966) 18 (iii) P.D. 309; Meir Ezri et al. v. Klein et al. (1966) 17(ii) P.D. 767.

112 Civil Wrongs Ordinance, §42.

113 For an excellent review of case law in the area of private and public nuisances during Israel's first thirty years see Kretzmer, David, Nuisances (Jerusalem, Sacher Institute, 1980)Google Scholar.

114 Local Council Tamra v. Tsvi Chaimovich et al. Civil Appeal 317/67 P.D. 21(2) 320.

115 Civil Procedure Code, 1963.

116 Civil Procedure Code, 1984.

117 Moses v. Musaf – State Tender BARA 5615/98.

118 Sec. 10, Sefer HaChokim 1622 p. 132Google Scholar.

119 Adam Teva v'Din v. Aviv and Associates, Holiday Apartments Ltd et al., T.A. 127150/98 (pending); The National Master Plan Number 13 (Coasts).

120 BASHA 198/88, State of Israel v. Keren Hoffer, (1993) 42(iii) P.D. 32; see also BARA 4363/91 Shtepler v. Directors of Gush Gadol (1994) 46(iii) P.D. 466.

121 Southern Scientists Association v. Environmental Quality Services Company, BASHA 2422/9. (unpublished).

122 Sec. 10, Sefer HaChokim 1622, 132Google Scholar.

123 The court ruled that the three prohibitive conditions specified in §11 of the law did not exist (that the suit was filed in bad faith, the size of the group was too small to justify a class action, and the suit did not truly represent the interests of the entire group).

124 Segev, Tom, The Seventh Million (New York, Free Press, 1992)Google Scholar.

125 Divrei ha Knessset, 1960, p. 580Google Scholar.

126 Proposed Prevention of Nuisances Law, 1961, Proposed Laws, 1961, p. 66Google Scholar.

127 Ibid., § 6(2), p. 67.

128 Ibid., §10.

129 Prevention of Nuisances Law, Sefer HaChokim, 32, 1961, p. 58Google Scholar (§3).

130 Ibid., §2.

131 Ibid., §4.

132 Ibid., §8.

133 Sec. 5.

134 While several areas of activity can be addressed in both contexts, this is the only law that gives the public the choice.

135 The general requirements of private prosecutions under §68 of the Criminal Proceedings Law (Integrated Version) 1982, do not have many of the constraints specified in later environmental laws.

136 The Abatement of Nuisance Law, §13 specifically creates a “pipeline” to the Civil Wrongs Ordinance, thus facilitating civil litigation in an otherwise criminal law.

137 C.A. 190/69 Israel Electric Company v. Avisar (1969) 23(ii) P.D. 315-21.

138 Criminal Proceedings Law (Integrated Version) 1982, supra note 115.

139 Tal, Pollution in a Promised Land, supra n. 86, chapter 7.

140 Abatement of Nuisances Regulations (Air Pollution from Motor Vehicles) 1963, KT 1425.

141 Katin, Ernest and Virshubski, Mordechai, “Environmental Law and Administration in Israel” (1975) 1 TAU Stud. in L. 210Google Scholar.

142 Planning and Building Law, 1965, §100 LSI.

143 Ibid., §100.

144 The list was most recently amended in the Planning and Building Order (Determination of Public and Professional Bodies for Purposes of Sec. 100(3)) 1993, K.T. 1993 at 431.

145 Regev, Ofer, Forty Years of Flowering, the Society for Protection of Nature, 1953–1993 (Tel Aviv, SPNI, 1994)Google Scholar.

146 Two MALRAZ cases that reached the Supreme Court were: C.A. 151/84 Israel Electric Company v. Farsht (1985) 39(iii) P.D. 1; Israel Electric Company v. Avisar, supra n. 137.

147 See “MALRAZ, 1973” in The Biosphera, No. 9, 1974, p. 3Google Scholar.

148 Bagatz 295/65 Oppenheimer v. Minister of Interior and Health (1966) 20(i) P.D. 309; Bagatz 371/71 Eng. A. Feranio v. Minister of Health et al. (1972) 26(i) P.D. 809.

149 E.g., Bagatz 1/81 Shiran v. Public Broadcasting Co. (1985) 35(iii) P.D. 365; C.A. 2901/97 Ofer Brothers v. Glickman et al. (not yet publisehd).

150 Adam Teua v'Din v. Local Planning Committee of Nahariyah, 30012/96 T.M. volume 99 (1) 530.

151 Tal, Pollution in a Promised Land, supra n. 86.

152 Sefer Hachokim, 1988 p. 118Google Scholar. Even though the law technically involved ratification of the Barcelona Convention by the Israeli government, in fact, the law was the result of a private bill sponsored by MK Dedi Tzuker, a member of the leftist Meretz party and long-time advocate of expanding public participation in government.

153 Kanovich's Law was simply added to the list of laws for which it was possible to file a private criminal enforcement action.

154 Supra n. 101, § 2.

155 Ibid., §8(1)a-c.

156 The draft of a new comprehensive law to be launched in Germany gives recognized NGOs the right to sue within rather strict limits, without the need to allege personal injury. Monica Neuman, Rechtsawaltin (Attorney), Bonn, Germany, personal communication, September 1, 1999.

157 Supra n. 101, §8(2).

158 Alon Tal, Proceedings of the Third Conference for Protection of the Gulf of Aqaba, Eilat, Inter-University Institute, 1996.

159 Criminal File 538/92, Eilat Magistrate Court, 1992.

160 Water Law, §20(25) Sefer HaChokim 5751, p. 180.

161 Sefer HaChokim 5752, p. 184.

162 Proposed Laws, 2106, 1992 p. 179.

163 Supra n. 101, §1.

164 Ibid., § 2.

165 Ibid., § 3.

166 See Shamgar, J., in Ata v. Schwartz (1976) 30(iii) P.D. 785; D. Kretchmer “Judicial Conservatism v. Economic Liberalism: Anatomy of a Nuisance Case” (1978) 13 Israel Law Review 298.

167 Abatement of Nuisances Law (Civil Actions), Sefer HaChokim 1622, p. 132, 109, §6.

168 Supra n. 108. Benny Temkin, a political science professor turned politician, proposed changes to each law.

169 This list includes the Council for National Parks, Nature Reserves and National Sites, the National Parks Authority, the Nature Reserve Authority, the Society for Protection of Nature in Israel, the Council for a Beautiful Israel, the Public Council for Noise and Pollution Prevention in Israel, and Adam Teva v'Din – Israel Union for Environmental Defense.

170 Sefer HaChokim 1622 (1997), p. 132.

171 Sec. 21 (a) of the Protection of Cleanliness Law, 1984 (Sefer HaChokim 1984, p. 142) now contains a citizen suit provision as does §15b of the Hazardous Substances Law 1993 (Sefer HaChokim 1993, p. 28Google Scholar).

172 For example, the law granted standing to plaintiffs or private criminal enforcers comparable to those required under the Water Law amendments: private individuals had to show damages and public organizations were entitled to file suit. A sixty-day notification period was also required.

173 Marom, Orit, “Public Enforcement of Environmental Law: Theories and Practice”, Masters thesis, in preparation (2000)Google Scholar.

174 In the case of Avisar v. Israel Electric Company, Magistrate Judge Yosef Harish (later to become Israel's Attorney General) refused to hear an appeal from individuals alleging damage from a general increase in air pollution concentrations from the Reading D power plant. While the decision was formally overturned by Beisky, J., in the Tel Aviv District Court and confirmed by the Supreme Court C.A. 190/69, Israel Electric Company v. Avisar (1969) 23(ii) P.D. 315-21, the attitude ascribed to by Judge Harish was also deeply rooted in the thinking of other judges who were raised with a conservative view towards standing. Historically, an important case in planning law was Bagatz 394/72 French Hill Hotel Ltd v. Jerusalem Planning Committee et al. (1973) 27(ii) P.D. 325, where the Supreme Court ruled that the Hebrew University Student Committee lacked sufficient interest in the land (just meters from the University campus) to justify its legal objections to the planning process.

175 See Kretchmer, David, Nuisances in the Law of Civil Wrongs – The Different Torts, Tedesky, G. (ed.) (Jerusalem, Sacher Institute, Hebrew University, 1982)Google Scholar.

176 The Prevention of Nuisances Regulations (Unreasonable Noise) 1990, (The Prevention of Nuisances Regulations (Noise) 1992, which replaced simpler regulations from 1966 and 1976, respectively.

177 C.A. 44/76 Ata Textiles Corporation v. Zev Schwartz (1976) 30(iii) P.D. 785.

178 C.A. 20186/92 Haifa District Court, Mahmud Ka'abiah v. Joseph Abu Alula (1996) 98(i) Piskei Mechozom 48, 208.

179 Bagatz 1681/90 Action Committee Regarding Expansion of Highway, the Accadia-Sea View Segment and 90 others v. Minister of Construction and Housing et al. (1992) 46(i) P.D. 509.

180 In Israel the question of an animal's legal standing arose in 1978 in the matter of Israel Society to Prevent Cruelty to Animals Association et al. v. Tel Aviv-Jaffa and Five Others (1978) 32(ii) P.D. 404. The petitioners petitioned the court with the goal of preventing animal performances, arguing that they constituted “cruelty to animals.” As to the matter of standing, the petitioners argued that they were in court in order to defend their own interests as well as those of the animals that were protected by law. The Supreme Court chose not to delve into the issue of standing and went straight to the substantive issue at hand.

Twenty years later, however, the Supreme Court opted to address the issue, in Let the Animals Live Association v. Hamat Gader Recreational Enterprise and Five Others (1997) P.D. 51(3)832. In this case, the animal rights organization sought to enjoin the defendant from continuing “human versus alligator battles” as a tourist gimmick because it constituted “torture” to the animals. The court chose to conduct an in-depth discussion of the independent rights of animals. It held that while it was true that the school of thought granting rights to animals essentially was not recognized in legislation and court precedent, nonetheless, humans in their activities need to consider the interests of animals. Through this circuitous formula, the courts essentially recognized the legal “interests” of animals, without actually making a decision regarding animal standing. This was justified by the newly enacted Cruelty to Animals Law (Protection of Animals) 1994, which resolves the issue by creating a right of standing to “a pro-animal organization.” In so doing, animal rights joined the expanding Israeli approach to environmental standards through the recognition of specific organizations which are empowered to litigate on behalf of broader public interests.

181 Shapiro v. Ari et al., C.A. 109/89, Jerusalem District Court, 1992 (unpublished).

182 C.A. 44/76 Ata Textiles Corporation v. Schwartz (1976) 30 (iii) P.D. 785.

183 Ka'abiah v. Abu Alula, C.A. 20186/92, Haifa District Court, 1996 (unpublished)

184 Tal, A., “Civil Actions to Expedite Treatment of Municipal Effluents in the Poleg Spring, The Limitations and Potential of Legal Actions against Polluting Municipalities” (1995) 5 Ecology and Environment 151–55Google Scholar (in Hebrew).

185 Fisch, Daniel, “Israel's Environmental Problems” (1998) 5 Israel Palestine Journal 20Google Scholar.

186 Organization of Property Owners in Section 8 Block 6621 et al. v. Planning Committee of Tel Aviv-Jaffa, D.A. 2053/99, Tel Aviv District Court, 1999.

187 See, e.g., Biezeveld, G.A. and Wabeke, J.W., “Strategy on Enforcing Environmental Law through Law by the Public Prosecutions Department in the Netherlands,” in Fifth International Conference on Environmental Compliance and Enforcement (Washington, D.C., U.S. EPA, 1998), 353–71Google Scholar. See also Andreas Gallas and Julia Werner, “Transboundary Environmental Crimes: German Experience and Approaches,” idem; J. Libber “Making the Polluter Pay, EPA's Experience in Recapturing A Violator's Benefit from Non-Compliance,” idem, at 365-83. In the U.S., a Florida court handed out the “longest jail term ever in an environmental case” – 13 years for knowingly pouring toxic waste into the Tampa sewage plant. “Florida Man Gets Longest Term in Environmental Case”, Yahoo News (http://dailynews.yahoo.com), Monday, August 16, 1999.

188 Sec. 64.

189 Tal, Alon, “The Economic Benefit from Noncompliance with Environmental Laws, The Role of Economic Analysis in Penalties for Polluters in Israel”, Ecology and Environment, January-February 2000Google Scholar.

190 Vanunu and Others v. Nesher Cement Corp., K.P. 2883/91, Jerusalem Magistrate Court (1991).

191 Adam Teva v'Din v. Haifa Chemicals et al., K.P. 5790/94 (unpublished).

192 Fisch, Daniel, “Israel's Environmental Problems” (1998) 5 Israel Palestine Journal 20Google Scholar.

193 Kishon River Authority Annual Report, Haifa, 2001.

194 Citizens for the Western Galilee Environment and Adam Teva v'Din v. Water Commissioner et al., Water Appeal 11/93, Haifa District Court (unpublished).

195 Adam Teva v'Din v. Haifa Chemicals, supra n. 191.

196 Klein, R.M., “The Continuing Nature of Notification Violations under Environmental Statutes” (1996) 26 Environmental Law 565Google Scholar.

197 Hazardous Substances Law 1993 (Sefer HaChokim 1993, p. 28Google Scholar).

198 Adam Teva v'Din – Israel Union for Environmental Defense, Annual Report, 1995.

199 Tal, A., “On Protected Values and Environmental Violations” (1992) 40 HaPraklit, Journal of the Israel Bar Association 321–413Google Scholar (in Hebrew).

200 Gelpe, M., “The Goals of Enforcement and the Range of Enforcement Methods in Israel and the United States” (1998) 14 TAU Stud. in L. 135–77Google Scholar.

201 Cleanliness Law, 1984, Sefer HaChokim (1984) p. 142Google Scholar.

202 “It is the Courts and most important the Judges who man these Courts who are required to give body and soul to these vibrant concepts of environmental rights.” M. F. Saladnha J., High Court of Karntaka, Bangalore, India, August 1998, quoted in International Network for Environmental Compliance and Enforcement Citizen Enforcement: Tools for Effective Participation (Washington, D.C., 1998) at 7Google Scholar.

203 U.S. EPA, Principles of Enforcement (Washington, D.C., 1992)Google Scholar.

204 Ministry of Environment, “Prosecution Files”, internal memo, 1999, on file with author. See also, Sharon, A. and Motes, S., “Statistical Data – Legal Prosecutions”, seminar paper submitted to Dr. Alon Tal, Tel Aviv University, 1997Google Scholar.

205 Libber, J., “Making the Polluter Pay, EPA's Experience in Recapturing a Violator's Benefit from Non-Compliance” in Fifth International Conference on Environmental Compliance and Enforcement (Washington, U.S. EPA, 1998) at 468Google Scholar.