Government Failure and Public Indifference: A Portrait of Water Pollution in Israel

Colorado Environmental Law Journal Colorado Environmental Law Journal

Volume 11Number 2

Article 2

Government Failure and Public Indifference: A Portrait of Water Government Failure and Public Indifference: A Portrait of Water

Pollution in Israel Pollution in Israel

Rachelle Adam

Government Failure and Public Indifference: A Portrait of Water Pollution in Israel

Rachelle Adam*

I. INTRODUCTION

ern Israel.2 The officials were administrators, scientists, and lawyers who started working at the new ministry upon its establishment in 1989. These officials were determined to halt the continually deteriorating condition of Israel's streams and other water resources. They were already acquainted with a large number of polluted streams, and considered themselves familiar with the degraded state of Israel's water resources.3 Yet, standing that day under the burning Middle East sun, choked by the stench from the river, they were appalled by the conditions at the ReinaNazareth pig farms.4

The six pig farms, located at varying distances of fifty to onehundred meters from the stream, discharged sewage into holding ponds that were too small in volume to contain the quantities flowing into them; thus, the holding ponds overflowed into the stream.5 The sewage had transformed the stream, which meanders through the pastoral valleys of the lower Galilee Mountains of northern Israel, into an open sewage canal. In addition to the surface water pollution, the sewage was suspected of contaminating artesian springs, drinking water wells, and the underlying aquifer.6 The surrounding area, once rich in varied fauna and flora,

had become decimated by the pollution, while the degraded quality of the stream's water prevented the existence of aquatic biodiversity.7 Four species of plants that appeared in a 1978 survey could not be found in a 1995 survey.8 Remaining plant life, as well as the swamp turtle, had disappeared from the immediate area of the pig farms.9 The most immediate impact of the sewage was the overpowering stench.'0

The pig farms had been operating in the area at least since 1974, despite laws that prohibited both their existence and the discharge of their sewage into the stream." For example, Israel's Business Licensing Law12 restricts the establishment and operation of a listed business-including animal-raising facilities-without a license; the pig farms did not have such a license.'3 The Planning and Building Law prohibited pig farm construction without a land use permit; the pig farms had not been granted such a permit.'4 The Prohibition on the Raising of Pigs Law outlaws this activity in Reina.15 The Drainage and Flood Protection Law16 requires a permit for building the holding ponds in close vicinity to the stream, which the pig farm operators had not obtained. The Public Health Ordinance prohibits activities that cause environmental nuisances, including sewage discharges into streams; the pig farms were discharging directly into the streams. 17 Finally, the pig farms were in violation of the Water Law, which totally prohibits the discharge of any substance into a

water resource.18

A meeting was held later that day at the Environment Ministry's northern region office at which officials discussed their findings regarding the Tsipori Stream. It was agreed that the pig farms should be one of the Ministry's first targets for water pollution enforcement, and that instead of requiring the operators to use pollution reduction and control technologies, 9 the goal should be to shut down their operation.20 This decision was based on the premise that as long as the farms remained in close proximity to the stream, there would always be the danger of accidental discharges to the stream. The question that arose was which legal tools would accomplish this purpose. The legal advisor for the Department of Water and Streams who was present at the meeting reviewed the relevant legislation2' but clarified that except for Article 1 A of the Water 22 the relevant laws were under the authority of other government Law, ministries. As for Article IA, the maximum penalty for water pollution was NS4,500 (then approximately US$450.00), and there were no provisions for imprisonment or court injunctions for pollution abatement. The desired goal was not so much punishment as it was ending the sewage discharges to the stream. To remedy this deficiency, the Ministry's legal staff was preparing an amendment to the Water Law that would provide the enforcement tools necessary to carrying out its water pollution pol-

icy.23 Meanwhile, the Ministry decided to wait until the amendment's completion before initiating legal procedures against the pig farms.24

The Tsipori Stream is typical of the polluted condition of Israel's water resources. Israel is located in a semi-arid region, receiving threequarters of its average rainfall in a four-month period. Similarly, it lacks sufficient surface storage areas for precipitation due to its geological 25 structure. Therefore, the country suffers a scarcity of water resources. The problem is exacerbated by a high salinity level,26 as well as pollution from such other sources as solid and hazardous waste; municipal, agricultural, and industrial sewage; oil spills from leaking underground storIn addition age tanks; and chemicals found in fertilizers and pesticides.

to these man-made pollutants, natural pollutants in arid regions, such as salinity from rocks and soil, constitute a common and constant threat to water quality. Meanwhile, the self-healing capacity of streams is not the same as for streams in humid areas, due to low or zero flow during most of the year.

The degradation of Israel's water resources has been an ongoing process, triggered by the country's rapid development upon achieving independence in 1948.29 Freed from the British Mandate government's moratorium on immigration, Israel's population grew by 50% within a year and a half of independence.30 The British departure also gave unrestricted access to the country's water resources; as a result, dozens of new wells were drilled in the coastal aquifer to accommodate the new country's rapid development. Rapid development was acutely apparent in agriculture, which during the 1950s showed a 500% increase in yield.31 Total use of the country's water resources rose from 17% in 1948 to 90% in 1978, and by 1980, Israel was using all of its replenishable freshwater resources.32 As the quantity of water used increased, quality went down, a result of seawater intrusion into aquifers from over pumping, as well as from pollution caused by high population growth,33 the consumption and pollution associated with a rising standard of living,34 and intense development. For example, most of the country's development has occurred without construction of the necessary sewage infrastructure, resulting in disposal of sewage by direct discharge into the nearest stream.35 Intensive agriculture that is dependent on heavy use of

pesticides resulted in the leaching of chemicals into groundwater, while extensive use of fertilizers led to high nitrate levels.36

The degradation of the country's water resources did not go unnoticed. In 1956, a United Nations study presented to Israel's government reported advanced stream pollution, recommended further surveys and monitoring, and supported action against polluters.37 A 1964 Knesset debate focused on the use of the Yarkon Stream as a sewage canal.38 In 1976, Dr. Richard Laster wrote his doctoral dissertation at the Hebrew University in Jerusalem on Israel's water pollution, noting the polluted state of the country's water resources despite the extensive legislative framework containing a plethora of administrative remedies.39 In 1980, Hillel Shuval, former Chief Environmental Health Engineer of the Health Ministry, wrote in the preface to a collection of essays on Israel's water scarcity that:

In the same collection of essays, water engineer Arthur Wiener noted that:

In 1990, the State Comptroller42 published a report on the state of the country's water resources and their increasing deterioration, concluding that it was a result of long-term mismanagement.43 The report was the product of a special investigation of the water crisis; a crisis that had been brought on by the government's failure to control and protect the

country's water resources, compounded by several years of drought.44

In 1998, Dan Zaslavski, a former Water Commissioner, wrote a 46

According to Zaslavski, 60% of the water in the coastal aquifer is unpotable because of the high level of nitrates, industrial chemicals are polluting other aquifers, and pollution is generally so serious that chances of stopping it are doubtful.47 The majority of the aquifers are suffering from both man-made and naturally occurring salinization, while water resources are being polluted not only from salt but also from other inorganic and organic compounds.

The phenomenon of extensive pollution is not due to lack of legal tools. As noted above, Israel has an extensive legislative structure for tackling water pollution.49 The question then is why, in light of the continual degradation of Israel's water resources, has water pollution legislation remained "law on the books," and not become "law in action"? Why had there been no enforcement actions by government institutions until the Environment Ministry developed its water enforcement program during the early 1990s?50 I am not the first to raise this question. Twenty three years ago, Laster noted that:

Prior to work on this dissertation, it was assumed by the author that an adequate legal code would be sufficient to protect Israel's water sources from pollution. Therefore it was asked at the opening of this thesis: if the law is so good, why are the water sources so polluted? At this point, the answer to this question should be obvious. The law has not been executed. Yet in answering the question in this manner only raises a formidable "why?" to which this author has no clear-cut answer.

Laster argued-and I agree-that the lack of government enforcement, as, for example, in the Nazareth-Reina pig farms, is not due to lacking or insufficient legislation, but derives from the institutional structure responsible for water issues: particularly the vesting of major authority over water issues in the hands of both the Agriculture Ministry and the Water Commissioner.52 Laster proposed a reorganization of water in-

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stitutions, removing authority from the Agriculture Ministry and transferring it to a new institution that would centralize all authority and powers regarding water." Others have advocated similar proposals. Israeli political scientist Yitzhak Galnoor recommended establishing a "Water Policy Center" that would centralize the various aspects of water management under one agency.54 Dennis Gouldman, a lawyer specializing in water issues, suggested that regional institutions defined according to watersheds should manage water in its entirety, from production and supply through treatment and use of sewage, inclusive of pollution prevention.5s Israel's State Comptroller, in her 1990 report on the country's water resources, proposed the transfer of responsibility for water to an unbiased, professional governmental institution.16 Zaslavski also advocated incorporating the currently diffuse responsibilities and powers into one entity.57 Thus, institutional reform in the area of water management has long been considered an answer to the prevailing abuse and misuse of the country's water resources.

My argument, discussed in the following section, is that given Israel's multi-party political system, proposals for institutional reform do not have much hope of materializing; this is evident from the fact that these numerous proposals-including that of the State Comptrollerhave been ignored by the government.58 To distinguish this argument

tion) is responsible for the poor state of Israel's water sector).

55.

54.

53. Because of conflicts of interest created by the same institutions being responsible for both agriculture and water, Laster proposed removing the Water Commissioner from the Agriculture Ministry and incorporating it in a new institution that would deal only with issues of natural resources. Consequently, the Water Commissioner would be free of many conflicts of interest. Laster Dissertation, supra note 3, at 329. See Yitzhak Galnoor, Water Policymaking in Israel, in WATER QUALITY MANAGEMENT, supra note 25 at 293, 310-312. "Integrated water management should be adopted. Regional authorities should be responsible for all aspects of the water-systems within their jurisdictions (including prevention of pollution, flood control, drainage, sewage, river and lake management, and the use of water for amenity and recreation)." GOULDMAN, supra note 3, at 55 (English Abstract, § I). "The responsibility [for water] should be transferred to an impartial, professional government institution that will take into account the needs of the entire country...." STATE COMPTROLLER, supra note 43, at 56. See Zaslavski, supra note 3, at 7. In 1996, the Water Commissioner, the primary water institution, was transferred from the Agriculture Ministry to the new National Infrastructure Ministry, apparently heralding a new era in water management. However, the new ministry was created for political reasons and does not reflect a new approach to water management, particularly as it still does not have total responsibility for water issues. See supra note 207 and accompanying text.

57. 58.

56.

from previous works, particularly that of Laster, I will extend my paper-focused solely on enforcement issues-beyond the conclusion suggesting the need for institutional reform and argue that, given the prevailing institutional structure and the difficulty of changing it, we need to look to public enforcement as an alternative to government enforcement. My argument will be based on evidence generated both by the water pollution enforcement program established by the Environment Ministry in 1991 and by the citizen suit litigation that has taken place up through the writing of this paper. Furthermore, I will attempt to explain why citizen suit enforcement for water pollution has been so minimal, and to analyze the phenomenon of apparent public indifference to the deteriorating state of the country's water resources.

This paper uses a thematic approach based on the case of the Tsipori pig farms. Part H1 reviews the institutional structure responsible for enforcement of water pollution legislation and analyzes the various factors involved in the decision-making process that prevent the institutions from taking action. Particular attention will be given to the historical role of the Agriculture Minister and the Water Commissioner in the failure of Israel's water managers to protect its water resources, and to the role of the Environmental Ministry today in water pollution prevention. As discussed in the previous paragraph, reasons as to the unfeasibility of a structural reorganization will be examined and analyzed.

In Part II, I will argue that, in light of the barriers to reform in the institutional enforcement structure, public participation in the enforcement process through citizen suits can address institutional failure. I will further this argument by examining the use of citizen suits in Israel to enforce the Water Law. The legislative framework will be described, examined, and analyzed to determine its efficacy as a basis for citizen suits. Three citizen suit case studies, which illustrate various legal approaches to the problem, the advantages and disadvantages of each, and the relationship between environmental organizations and the Environment Ministry in preparing and filing citizen suits, will be studied in detail.

Despite the conclusion in Part HIT that citizen suits are a potentially effective enforcement mechanism, Part IV will examine why, in reality, so few have been filed. It will also address the apparent lack of public concern about the country's serious water pollution. This section analyzes several possible explanations for this phenomenon, demonstrating its multifarious nature and the difficulties in creating incentives for public participation. Particular emphasis will be placed on viewing water resources in the paradigm of a "tragedy of the commons."

The complexity of the subject, enmeshed in Israel's history, culture, society, and legal system, together with the possible consequences of continued degradation of the country's water resources on basic survival

concerns such as health and security, rules out any one solution.59 This paper should not be viewed as a concrete proposal for solving these problems. Not only do I argue that legislative reform is not absolutely essential, and that changes in the existing institutional structure under the present political system are unlikely, but I also argue that it is necessary that the reader understand the enormous dimensions of the problem, in which enforcement, although indispensable, is only one of many elements in a total water resource management strategy. Hopefully, my contribution to the debate concerning Israel's water resources will be both to set forth the advantages of citizen suits in the present political reality of institutional fragmentation and governmental lack of will to enforce the law, and to attempt to understand the reasons behind public indifference toward its water resources, as demonstrated by the meager number of citizen suits filed so far.

II. THE INSTITUTIONS60

Israel has multiple governmental institutions empowered to control water pollution by virtue of authority derived both from laws that relate specifically to water or sewage and from those in which water pollution issues are incidental to the principal intent of the law. In order to simplify what has resulted in a confusing institutional structure made even more complex by the addition of the Environment Ministry in 1989 and the National Infrastructure Ministry in 1996, this information is displayed in figure 1.

Figure I*

Prior to 1989

1989-1996

From 1996

A. The Interior Ministry

The Interior Ministry,6 as the Ministry in charge of the municipal sector, is empowered by the Local Government Law (Sewage)62 to order cities and towns to install sewage treatment facilities in areas under its jurisdiction. Although use of this authority would have prevented or reduced water pollution caused by local governments that, lacking func-

tional treatment facilities, discharge sewage directly into streams, the In63 The Interior Ministry also terior Ministry has chosen not to exercise it. administers the Planning and Building Law. By regulating all land use in Israel, this law, in theory, is the backbone of environmental policy in Israel.64 Although the Planning and Building Law allows environmental issues to be considered in the decision-making process, the Interior Ministry-whose primary interests are the implementation of national and local policy for development-interprets the law mainly as a mechanism for furthering the development necessary for maximizing the country's growth.65

In theory, then, Interior Ministry officials are authorized to issue and implement condemnation orders against any premises built without a permit pursuant to the Planning and Building Law;66 the Ministry could have used its authority to physically remove the pig farms from the banks of the Tsipori Stream. Furthermore, as the Ministry responsible for the

Prohibition of Pig Raising Law, the Interior Ministry could have shut down the pig farms by enforcing the provision that prohibited this occupation in the town of Reina.67

B. The Health Ministry

The Health Ministry, in its role of protector of the country's drinking water,68 has historically had available various powers to control water pollution. Until the creation of the Environment Ministry, it was authorized to deal with issues of water pollution under Chapter 6 of the Public Health Ordinance, which defines sewage as a "nuisance" and prohibits its discharge into a water resource.69 This ministry was also originally empowered under the Business Licensing Law to regulate industrial health nuisances posed by untreated sewage, using a licensing procedure. However, these powers have subsequently been transferred to the Environment Ministry. Today, the Health Ministry is responsible for the quality and use of recycled sewage in irrigation, and has the authority to condemn and destroy crops irrigated by poor-quality recycled sewage*70 In 1992, it promulgated regulations that require municipalities or industries whose sewage exceeds an amount equivalent to 10,000 residents to install and use sewage treatment facilities that will treat the sewage to standards set out in the regulations,71 but it has not enforced these regulations.

Of the institutions discussed in this paper, historically, the Health Ministry was the only one to take action against water polluters. In 1963, it sued a paper mill that discharged its sewage into the Hadera Stream for

violating conditions attached to its business license.73 In the same year, it brought suit against three kibbutzim for pollution of the lower Jordan River by discharges from their sewage ponds.74 In 1966, it sued a juice producing plant pursuant to the Public Health Ordinance for polluting the Alexander Stream.75 Nonetheless, these were isolated cases; there is no evidence that the Health Ministry has made further use of these powers. Coming back to the Tsipori Stream pig farms, it could have used administrative orders under the Public Health Ordinance to shut down the farms.76 Ironically, the Health Ministry did do so: in 1994, after routine tests revealed that agricultural produce irrigated by water pumped from the stream contained high levels of contaminants-the result of discharges from streamside polluters, including the pig farms-the Ministry issued and enforced a condemnation order of the produce. However, no action was taken by the Ministry against the polluters themselves.77

C. The Justice Ministry

The Justice Ministry, through the State Attorney General and the district attorneys, is another government ministry empowered to act against water polluters. State and district attorneys represent the government in criminal and civil proceedings, and, as such, have prosecutorial discretion to initiate legal proceedings not only pursuant to the Penal Code,78 but also pursuant to other laws including those regulating water pollution. However, government prosecutors did not use these powers. Nor did they respond to requests for litigation by the Environment Ministry, whose early enforcement policy determined that cases would be referred to the Justice Ministry for litigation. Pursuant to this policy, during the years 1991 and 1992, the Ministry's legal office referred five water pollution cases for prosecution to district attorneys. Out of the five cases,

only two were filed within a period of time that allowed for court injunctions which could have effectively stopped or prevented pollution. The other cases were filed after a considerable delay. Furthermore, in two of the cases, both against municipalities, the district attorneys withdrew the charges-despite the Environment Ministry's strong objections-after the defendants abated the pollution.79 Other cases that were referred to the district attorneys were ultimately returned the Environment Ministry, either for lack of evidence or because of what was defined as "no reason to initiate criminal proceedings.8°

On April 1, 1992, the Environment Ministry's legal office referred six cases against the pig farm owners to the District Attorney for the country's northern region.8 1 However, attempts to persuade her and her staff to prosecute the operators on grounds of water pollution were unsuccessful; the legal office's requests were denied on the grounds that, in lieu of litigation, institutions such as the Water Commissioner and the Interior Ministry should use alternative administrative orders against the farm operators, pursuant to the Water Law and the Prohibition of Pig Raising Law.82 Consequently, only in December 1993-after the Environment Ministry began outsourcing litigation to handle problems with under-staffing-were cases filed against the pig farm operators.83

D. The Transportation Ministry

Under the Ports Ordinance, the Transportation Ministry has authority to prevent the pollution of port waters.84 Although the significance of this power is usually only pertinent to marine pollution, it is also relevant to the Sea of Galilee, Israel's only freshwater resource with the capacity for extensive boating--qualifying it as a port.85 Although the Transportation Ministry's powers are extensive, it has not exercised those powers against polluters. The Ports Ordinance was not drafted as a tool for combating water pollution, but was intended as a regulatory mechanism to control the use of ports by the shipping industry and the recreational boating sector.

The Environment Ministry decided to tackle pollution from boating in the Sea of Galilee as a separate issue. This was based on the growing

concern that the ever-increasing levels of pollution threatened its sustainability as a resource.86 Because of the Transportation Ministry's parallel authority over pollution of the Sea of Galilee, the Environment Ministry had no choice but to work together with it on the project.87 This resulted in a joint committee whose meetings demonstrated the conflicts between the Transportation Ministry's major interests and its authority to prevent water pollution.88 The committee was created in May 1998 by a joint decision of the directors of the Environment Ministry and the Transportation Ministry. Its mandate was to propose enforcement mechanisms to control pollution from ships and boats that use Israel's major drinking water resource for business or recreation. The committee's work was to be based on an expert opinion commissioned by the two ministries, which stated that the number of boats and ships presently using the Sea of Galilee should be immediately curtailed, and all recreational motorcraft traffic should be totally banned. While the Environment Ministry supported the findings of the expert opinion, the Transportation Ministry, considering the findings to be exaggerated, refused to consider their implementation.90 The committee disbanded on a note of discord, having accomplished nothing to solve the pollution problem.

E. The Agriculture Ministry

The history of Israel's development and use of its water resources is intertwined with the historical importance of agriculture, and, thus, with the Agriculture Ministry.91 The transformation of agriculture into a national priority led to a water policy that has been dictated by the exigen-

cies of the agricultural lobby. This culminated in 1959 with the enactment of the Water Law under the authority of the Agriculture Minister.93 Prior to 1959, the Agriculture Minister had already entrenched his authority over the country's water resources by receiving ministerial responsibility for two new laws dealing with water issues-the Water Drilling Law94 and the Water Metering Law.95 In 1957, the Agriculture Minister was also granted responsibility for the Drainage and Flood Controt Law.96 By 1959, with the enactment of the comprehensive Water Law, all of Israel's legislation that dealt specifically with water issues was centralized in the Agriculture Ministry. Thus, the sector that consumed the largest quantity of Israel's most precious resource was also the sector that regulated this resource for the rest of the country. The Agriculture Ministry is also empowered, pursuant to the Business Licensing Law, to prevent water pollution from specified agricultural activities by adding conditions to licenses and shutting down those businesses that do not comply with the conditions or do not have licenses.99 Until 1995, the Nature Reserves and National Parks Act, which provided protection for those water resources legally declared as nature reserves, was also under the authority of the Agriculture Ministry. too

The Agriculture Ministry could not fulfill its mandate to prevent water pollution because it simultaneously had to realize its mandate to promote agriculture.'0' Water interests and agricultural interests inherently conflict; although water is of paramount importance to agriculture, its importance is viewed solely in its value to agriculture. Farmers are a strong and coordinated lobby who experience the immediate impacts of water policy, and historically have preferred short-term considerations over long-term interests. °2 Thus, political pressures are liable to dictate

ministry decisions based solely on short-term considerations (i.e. those taking affect prior to the next election).03 In 1990, aware of the inherent conflict between protection of water resources and promotion of agriculture, Israel's State Comptroller recommended that management of Israel's water resources be removed from the Agriculture Ministry. 104 This finally took place in 1996 with the creation of the National Infrastructure Ministry. However, the foundation for this move was based in politics, not on a decision to implement the State Comptroller's recommendations.'05

F. The Water Commissioner

Unlike the other government institutions discussed above, the Water Commission deals exclusively with water issues, and is charged with the management of the country's water resources.06 However, this institution has consistently failed in its statutory mandate of protecting Israel's water resources and preventing their contamination.07 Originally under

the authority of the Agriculture Minister, the Water Commission was transferred for political reasons to the National Infrastructure Ministry in 1996. 18 Even though the Water Commission is equipped with multiple administrative powers for the control, prevention, and abatement of water pollution,'°9 it has chosen not to use them.1l° One apparent reason is that it was originally a department in the Agriculture Ministry."' As a captive agency of the agricultural sector, hierarchically under the minister who managed water for agricultural purposes, it was, as a practical

matter, constrained from using its authority against farmers.12

That would explain the lack of enforcement against the agricultural sector, but not lack of enforcement against the industrial or municipal sectors. The institution of the Water Commissioner was originally created in 1944 by the British during its mandate over Palestine.'13 Environmental considerations were not an issue in 1944, nor were they in 1959, when the Water Commission was incorporated into the then new Water Law.' 14 Historically, the Water Commissioner was not established specifically to deal with issues of water pollution.15 Although he received authority for water pollution prevention pursuant to the 1972 amendment to the Water Law, the Water Commissioner has proven himself unable to enforce it. 6 Despite the contributory failures of other institutions, the deteriorated state of Israel's water resources is directly linked to the Water Commissioner's ongoing failure to exercise his powers under the Water Law, including his authority to regulate water allocations. 117 A crisis emerged in 1990, when three years of drought necessitated the production of even more water from aquifers that were already over-pumped; consequently increasing their deterioration."8 As noted in Part 1,19 the combination of poor rainfall and years of neglect and mismanagement prompted a special inquiry by the State Comptroller.12° She found that, since the 1960s, Israel's water resources have been undergoing a process of degradation and deterioration, resulting in a deficit by November, 1990, of 1.6 billion cubic meters of water in the three major reservoirs-the coastal aquifer, the mountain aquifer, and the Sea of Galilee-an amount equal to Israel's annual consumption. 121 The report's findings indicate that this was a direct result of over-allocations-

particularly to the agricultural sector-exceeding the annual refill from rainwater.122 The overextraction of groundwater is a major contributor to the deterioration of the quality of the water, because the dangerously low water levels allow the penetration of seawater and other pollutants. 13

The report determined that the low price of water for agricultural use-which only partially covers the price of production and distribution-is the primary reason for the water crisis; this creates both an artificial demand in excess of available water and a demand for water for irrigation when the unsubsidized, fair market price of the water used exceeds the market price of the resulting crops.24 The report further criticized the Water Commissioner for ignoring the advice from water experts and his own water advisory boards to reduce extraction as a means of avoiding further damage to the water resources.125

The Water Commissioner was censured by the State Comptroller for failing to protect and sustainably use the country's water resources.126 Among its recommendations, the Report suggested that the Water Commissioner should immediately start using his powers for water pollution

prevention and control pursuant to the Water Law.27

G. The Environment Ministry

Although the Environment Ministry was originally established for political reasons, it has, to a certain degree, solved institutional dysfunction concerning water pollution enforcement. For example, at the time of its establishment in 1989, only two water pollution regulations existed. 128 Similarly, as argued in this paper, enforcement was non-existent. Since then, the Environment Ministry has promulgated regulations on a wide array of issues,129 and has established an enforcement mechanism consisting of prosecutors and specially trained ministry investigators.130 Thus, within the governmental institutional structure in Israel today, an institution has finally been created whose exclusive mandate is the responsibility for environmental issues, including water pollution.

However, the Environment Ministry was not created out of any deep-seated conviction of the government or of the public that the time had come for the country to deal with its serious environmental problems.13 The trigger for the Ministry's creation was the stalemate following the 1988 elections, in which neither of the two leading parties could form a majority government. This led to the decision to form a national 132 unity government based on an equal number of ministerial positions.

But, since one would-be minister had not yet been placed, the politicians had no choice but to form a new ministry for him.33 A ministry for sports was almost created, but, with the application of political pressure from a few well-connected environmentalists, it was decided that a ministry for the environment might be more popular with the public.34 Authorities were squeezed out under protest from other ministries; the Health Minister and the Agriculture Minister refused to appear before the committee appointed to determine the new ministry's powers and responsibilities.35 And, although this committee decided that the new ministry should be given responsibility for the subject of water in its entirety, the Agriculture Minister refused to comply. It instead acted to narrow the Environment Ministry's share of authorities over water issues solely to water pollution prevention. This already diminished authority was further whittled down; authorities for water pollution and control were not transferred in their entirety to the Environment Minister.136 The most significant power in the field of water pollution-the authority to issue adminorders istrative the Water Commissioner. 137

against polluters-remained with

Despite its political beginnings, the Ministry is staffed primarily by a highly trained team of professionals, who have succeeded in keeping environmental considerations afloat upon a sea of heavy, and often opposing, political pressures. The Ministry has also been lucky that, during its early years, it enjoyed environmentally-oriented ministers who created and strengthened ministry departments for inspection and enforcement, and have established policies and strategies for these purposes.138 The Ministry has long recognized that enforcement-including enforcement by the public-is the weakest area of Israeli environmental policy. To counter this problem, it has, supported legislation promoting public participation by means of citizen suits.139 The 1991 amendment to the

Water Law, with its provision for citizen suits, was drafted by the Ministry's legal staff and presented as a government bill. 140 The Prevention of Environmental Nuisances Law (Citizen Suits), introduced as a private member's bill,'41 was supported by Ministry officials.42 The Ministry also supported the bill's original provision authorizing the courts to award attorney fees as an incentive for plaintiffs-a provision removed from the final draft due to fears that it would lead to misuse of the law.143 In addition, the Ministry supported the Freedom of Information Act because it recognized the Act's significance for the preparation and litigation of citizen suits.144

But, the Ministry's efforts to increase enforcement are in many instances frustrated by clashes with other ministries.45 The creation of the Environment Ministry was not meant to repair the institutional fragmentation of laws and powers concerning water pollution issues, nor have

these institutional difficulties disappeared. The opposite is true; since other institutions are still responsible for a substantial amount of legal authority dealing with the issue, there are a great number of possible conflicting actions. For example, the Environment Ministry's enforcement measures against municipalities, Israel's most problematic water polluters, causes a great deal of intra-governmental opposition.146 Due to years of neglect and ignorance, and as a result of intense, poorly planned development, local governments' sewage has become the country's major source of pollution.147 During the 1950s, 1960s, and 1970s, most of Israel's streams-convenient and cost-free sites for sewage disposalwere turned into sewage canals.148 When the country finally started developing environmental awareness in the 1980s, the task of stream restoration-consisting of the construction by local governments of multi-million dollar sewage treatment facilities-became an almost insurmountable challenge.149 The Environmental Ministry staff realized that the country's huge water pollution problems could not be solved without tackling local governments. Accordingly, they devised a policy of enforcement against polluting cities, towns, and local and regional councils. By 1998, seventeen lawsuits had been filed against various local governments for violations of the Water Law.50

A major drawback for the government in these lawsuits is the exposure of internal strife among the various government institutions. These public demonstrations of discord and confusion embarrass the government and irritate the courts, and are evidence of the conflicts within the government institutional structure that constrain it from acting. For example, in 1998, the Environment Ministry sued the Town of Or Akiba for ongoing discharges of sewage into the Taninim Stream.'5' During the hearing for the Ministry's motion for an injunction, the defendants raised the argument that the town's dysfunctional oxidation ponds-which served as its sewage treatment facilities-had been financed and constructed by the Housing Ministry.152 Their lawyer argued that the lawsuit filed by the Environment Ministry created a ridiculous situation in which the government was charging that it, the government, had committed an illegal act by constructing the ponds which were now causing the pollution:

The ponds that the prosecutor refers to in the charge-sheet are ponds that were legally built. They were not built by the town of Or Akiba but by the Housing Ministry and from the budget of the Housing Ministry and received all the permits required by the law because it is unthinkable that the State would do something illegal. What's going on here? ... We're talking about something that was built a long time ago by the State, the State received all the necessary permits.... [A]nother arm of the State comes along and sues the other, and it seems like a story out of Kafka....153

In 1991, Ministry officials discovered a leaking sewage pipe that was discharging raw sewage into the Sea of Galilee, Israel's major surface drinking water resource.54 An investigation revealed that the pipe had been leaking for several months, a fact known to the city's officials, including the mayor, who had failed to take action.55 The Ministry referred the case to the district attorney requesting immediate action in light of the danger to public health, but to no avail.56 The case was filed

in court after it had been referred by the Environment Ministry, but only after a four month delay; the district attorney and her staff demonstrating a lack of will to prosecute.157 After the city finally complied with the court injunction and fixed the pipe (following a two month delay), the district attorney, despite the Environment's Ministry's protests, moved to dismiss the criminal case against the mayor and against the city, ignoring considerations of future deterrence and-despite the fact that the defendants had knowingly allowed sewage to pollute a major drinking resource for close to a year-considerations of punishment. 58

{tc" " l 4}In 1996, the Environment Ministry filed an action against the city of Safed for violations of the Water Law, along with a motion for an injunction preventing occupancy of a new residential subdivision lacking sewage treatment facilities. 159 During the court hearings, the defense moved that the motion be summarily dismissed, arguing that while one government institution (the Environment Ministry) was suing the city for water pollution violations and requesting a moratorium order, another government institution (the Housing Ministry) was building in the same subdivision under issue.'60 The judge became extremely irritated at this disclosure, and issued a decision requesting direct response from the State Attorney General to the defendant's argument. The conflict of interests between the two ministries stemming from their clashing mandates became apparent during a particularly stormy meeting at the -the Environment Ministry's interest was to prevent Justice Ministry water pollution while that of the Housing Ministry was to build the maximum amount of housing in the minimum amount of time. As a result, the Justice Ministry insisted on litigating the case instead of the

Ministry's prosecutor-an action in sharp contrast to the refusals of the district attorneys to prosecute cases referred to them by the Environment Ministry during the early 1990s-and transferred it to the district attorney for the northern region.

H. Discussion

Based on the above "map" of Israel's institutions in the area of water pollution, and as Laster argued in 1976, it is clear that the government's failure to apply the enforcement provisions of legislation dealing with water pollution is rooted in the underlying institutional structure.

First of all, there are too many institutions. 163 The high number of institutions creates a lack of cooperation and coordination and results in non-action. For instance, the seemingly most obvious authority to use in closing the pig farms was the Interior Ministry's authority pursuant to the Prohibition of Pig Raising Law.164 The evidence was clear: the law prohibited raising pigs in Reina, and pigs were being raised there. The law also had a seemingly easy-to-use administrative implementation process by which the law's administrator, an Interior Ministry official, was au-

thorized to issue and implement closure orders against violators.65 In hopes of utilizing this mechanism as a means of ending the pollution of the Tsipori Stream, the Environment Ministry, prior to litigation, attempted to persuade the Interior Ministry to use the law to shut down the farms.166 Yielding to this pressure, the law's administrator did issue a closure order. However, it was never enforced.167 After failing to persuade the Interior Ministry to act, the Environment Ministry then urged the district attorney to file charges against the farms' operators on grounds of water pollution. The request was denied, claiming a heavy workload, understaffing, and, most significant of all for my argument, the existence of other institutions who could act more efficiently by the use of their administrative powers.'68 The Agriculture Ministry and the Water Commissioner did not take action against the pig farms, even.. 169 though they held primary responsibility for water pollution prevention. As mentioned above,70 the Health Ministry took a narrow form of action, by issuing and enforcing a condemnation order against agricultural produce that had been irrigated with water from the Tsipori Stream, but did not take any action against the polluters. 171

As demonstrated by the example of the pig farms, the existence of a large number of institutions all empowered with similar authorities cre-

ates a situation of "passing the buck" in which each institution justifies its own inaction by indicating others as more appropriate, resulting in institutional unaccountability.172 For example, the Environment Ministry considers the area of hazardous substances as its primary sphere of concern, a calculation reflected by the generous budget and large staff allot3 The reasoning behind this policy was ted to the department in charge. 1 that no other ministry shared responsibility for this area-in contrast to water pollution which as demonstrated above is shared by a large number of government institutions-and thus the ultimate accountability regarding hazardous substances rests on the Environment Ministry. 174

Another reason explaining the institutional failure is either that the subject, pollution, is not the primary responsibility of any of these institutions, or it is one of several conflicting mandates imposed upon them. For both political and professional considerations, each institution advances its own interests. Under these circumstances, "institutional self interest" leads to a lack of will to take action.175 As noted by environmental legal expert Joseph Sax:

From the inside perspective of a government agency, hard choices must be made. An agency has its own priorities and legislative program; it has conflicting constituencies among which it must mediate, and in whose ees it must-for its own good-appear to have a balanced position.

In the pig farm example, the Interior Ministry lacked the institutional will to enforce the Prohibition of Pig Raising Law since it was not

one of the Ministry's primary interests."' Furthermore, closing down a business would have forced the Interior Ministry-primarily responsible for the management of municipalities-to balance the benefit of such an action against the resulting economic harm to the business owner and the community together with the consequent political harm to the Ministry.'78 As for the Attorney General and the district attorneys, a heavy workload precluded litigating cases that were not considered of high priority, and up until two years ago, environmental issues were low on the list. Israeli society's low awareness of water pollution issues dictated that they would not be among the institution's major interests. Only when a water pollution case gained international notoriety and resulted in multimillion dollar lawsuits against the government, as did the cases surrounding the collapse of a footbridge into the polluted Yarkon Stream, did it sufficiently serve the Attorney General's interest to litigate water pollution cases.

The Water Commissioner, on the other hand, is responsible not only for water pollution prevention, but also for water allocation. He allocates water at a low price to farmers without taking into consideration the pol°80 Furtherlution externalities caused by intensive agricultural activity. more, while under the Agriculture Minister, he was constrained from us-

the Business Licensing Law. Or, alternatively,

ing his extensive administrative powers against the agricultural sector since this would harm his self-interest in promoting agriculture.18' The Agriculture Ministry may have been similarly constrained from enforcing its authority regulating livestock raising facilities-including pig the farms-under Agriculture Ministry's lack of response to the water pollution created by the pig farms might have been to prevent the claims of discrimination182 that would have arisen if the Ministry had acted against the pig farms and not against polluting cowsheds or other livestock facilities located within kibbutzim and moshavim83 along the Tsipori Stream. Evidence of this can be found in the charge of discrimination raised by the defendant pig farms against the Environment Ministry, that downstream animal raising facilities also pollute the stream. 184 As mentioned above,185 the Health Ministry was the only ministry, besides the Environment Ministry, that did take action concerning the pollution of the Tsipori Stream, albeit indirectly.186 However, the Ministry did not act against the actual causes of the contaminated produce, i.e., the pig farms, and limited itself instead to measures that would prevent the food from directly endangering public

health, its primary interest.18

Agency capture, intertwined with institutional self interest, is another factor in the failure of the government enforcement mechanism. The regulating agency tends to become dominated by those entities that it regulates, leading to policy and decision-making dictated by their interests. Problems of agency capture are of course not endemic to Israel. Richard Lazarus argues that congressional mistrust of the Environmental Protection Agency (EPA) was based on fears of agency capture by the regulated community, thus leading to the enactment of citizen suits as a means of ensuring an alternative enforcement mechanism.188 He bases his argument on three theories of agency capture: (1) as a result of the natural process of work, an agency tends to identify itself with those it regulates, which can lead to that institution's domination by the regulated; (2) the continual political pressures exerted on the agency weaken its position in negotiations with the regulated community and can lead to compromises beneficial to the regulated community; and (3) an agency can suffer from capture by its own bureaucracy and ignore the needs of the regulated community.

The first two arguments illustrate the process of agency capture in the institutional structure for water pollution in Israel. For example, the Agriculture Ministry needs staff experienced in farming to promote its primary concern-agriculture. This naturally leads to an identification of shared interests between the regulators (Ministry staff with farming experience) and the regulated (the farmers), and to a Ministry preference for farming considerations over environmental ones. Furthermore, the steady stream of the farming lobby's political demands on the Agriculture Ministry and, in turn, on the Water Commissioner dictated their decisions and prevented them from adopting those that would have a deleterious effect on the agricultural sector, such as eliminating water subsidies.19 Thus, the Agriculture Ministry and the Water Commissioner can be defined as captive agencies of the agricultural lobby,'9' and, in the context of the argument presented here, this would lead to lack of institutional will to enforce water pollution legislation against polluters.

Lazarus' argument, that the US EPA is less susceptible to agency capture than other agencies, also holds true for Israel's Environment

Ministry. The EPA's "social mission" is to protect the environment, while its interests are so diametrically opposed to those of the regulated community that there is small danger of agency capture.192 The Environment Ministry also has a mission to protect the environment, and its interests are similarly opposed to the community it regulates. Consethe Ministry was able to undertake enforcement measures quently, against the pig farms, eventually bringing about their closure, while the Agriculture Minister and the Water Commissioner were constrained from doing so; both had become captive agencies of the agricultural sector.

Government institutions base themselves on strategies that are politically programmed to operate over a period of four years or less-until the next elections-resulting in institutional policy decisions based on strategies for obtaining the largest amount of benefits for the public in the shortest period of time. The dilemma is that, given the nature of environmental problems, the benefits that will accrue as a result of policies devised to improve environmental quality will only emerge after an extended period of time, thus reducing their electoral value. 193 For example, no Agriculture Minister would take enforcement action against members of the farming lobby that could endanger his or his party's re-election, particularly if the action concerned an issue that was not amongst the Ministry's primary interests (e.g., water pollution).

With the exception of the Environment Ministry, these institutions were not created for environmental purposes.194 Instead of being modeled specifically to deal with problems of water pollution prevention, existing institutions that were originally structured to serve other purposes had these issues imposed upon them.195 Furthermore, as pointed out by Israeli political scientist Yitzhak Galnoor, Israel's water institutions are "aging" and are less receptive to new ideas in water management, mostly due to the agricultural lobby's disproportional influence on Israel's political structure.

L Summary

The Reina-Nazareth pig farms discharged their wastes into the Tsipori Stream for over twenty years before action was taken against them

by a government institution.197 During this time, the Agriculture Minister was empowered to act against them within the framework of the Business Licensing Law, while both he and the Water Commissioner could have used their authority pursuant to the Water Law and the Drainage and Flood Protection Law to combat the continuous discharge.198 The Health Minister was empowered to act under the Public Health Ordinance,199 while the Interior Minister was authorized to physically remove the pig farms from the vicinity of the stream pursuant to both the Planning and Building Law (since the farms had been erected without the necessary permits) and the Prohibition of Pig Raising Law.2 00 The State Attorney General's Office could have initiated legal proceedings against the polluters based on any of this legislation and the Penal Code, but chose not to.201 The result of this multi-institutional, over-legislated, and overlapping government structure for water pollution enforcement has

been fragmentation of laws and authorities.

The most obvious solution would be to centralize all legislation dealing with water pollution under the authority of one institution, as suggested by Laster, Zaslavski, Galnoor, and the State Comptroller.2°3 However, this move would necessitate changes in the existing institutional structure, which would lead to turf battles and power struggles between the various ministers and their staffs, both at the political and professional levels. For, even though the problem is failure to act-as demonstrated by the Tsipori Stream case study-rather than competition among too many institutions to exercise their powers, institutions would resist any changes that would decrease their influence and strength. The subject at issue is power arrangements, which are extremely difficult to change. Assembling a government under a multi-party political system is a sensitive, demanding task, requiring exhausting and nerve-wracking negotiations and the accompanying hand-out of political favors.24 No prime minister would risk putting his government into a precarious position and upsetting his ministers by transferring the powers and authorities under them to the lowly Environment Ministry, or any other agency, unless it was for significant political value.

Not only does Israel's multi-party political structure prevent a reduction in the number of institutions, it has been responsible for an increase in their number. As discussed above, the Environment Ministry was created not as a means for addressing environmental concerns, but as a place-holder for a would-be minister in search of a ministry after the 1988 elections. Another example is the addition of the National Infrastructure Ministry, the result of political scrabbling to form a government 7 Thus, in light of Israel's multi-party sysfollowing the 1996 elections.2

tem and the accompanying political considerations, solutions for increased enforcement that will not mandate difficult-to-achieve political changes in the existing institutional structure are clearly preferable.

While it is argued that an institutional reorganization centralizing the various powers over water in one institution would improve the management of Israel's water resources,2 08 I argue that institutional reform is unlikely in Israel's present political reality. Furthermore, centralization of powers would not overcome obstacles to enforcement created by institutions outside the organizational structure dealing with water issues, whose primary interests conflict with protection of the country's water resources. For example, the Housing Ministry-whose interest in rapid development clashes with considerations of water pollution prevention from untreated sewage-perceives enforcement actions of the Environment Ministry as threats to its spheres of interest.2°9 In light of these barriers, we should look to public participation in enforcement as an alternative to the traditional government paradigm, as discussed below.

III. CITIZEN SUITS210

A. Introduction

As an alternative to the commonly held viewpoint, which perceives enforcement as a prerogative enjoyed only by government institutions, enforcement should be recognized as a public right, essential in protectPublic paring the water resources defined by law as public property. ticipation in the form of citizen suits can be a supplemental enforcement mechanism for violations of water pollution legislation when government institutions will not or cannot perform their legal responsibilities. Support for my argument is found in Joseph Sax's book, DEFENDING THE

ENVIRONMENT,212 in which he claims that citizens searching for solutions to environmental problems do not need government institutions to enforce environmental legislation on their behalf. He argues that, given the appropriate legal tools, the public should be able to undertake effective enforcement measures against polluters without government interference.

The power of citizen suits is that they are free of those restrictions on government institutions discussed in the previous chapter. Generally, their greatest advantage is that private citizens and environmental organizations are less shackled by the political demands exerted on government agencies and can take action in those instances when government is prevented from acting. Plaintiffs in citizen suits, whether private individuals or environmental organizations, are not captive of any regulated community. Consequently, they are unfettered by those constraints imposed by a regulated community on a government agency. Nor do these plaintiffs experience conflicts of interest, for their purpose in litigating is eliminating pollution. Citizen suits can also serve as incentives to push government institutions to take action; the threat of being brought under judicial review by means of a citizen suit could be an incentive for intransigent bureaucrats to become accountable for their fail-

ure to act. A citizen suit would reveal before the court and the public the failures of that particular institution in taking action, and could result in an injunction compelling it to act.217 On a practical level, citizen participation makes the enforcement process more efficient-local residents are more likely to discover and monitor instances of water pollution if they have the opportunity to effect change.218 Citizen suits can also be a means of "harnessing self-interests through individual incentives." Based on a fundamental tenet of the doctrine of "free market environmentalism,''219 that individuals act only to promote their own self interest, citizen suits capture these interests by serving as a means of attaining personal rewards. For example, a citizen derives a great personal benefit from a court injunction ordering the abatement of pollution that causes injury to the citizen.

Citizen enforcement is good public policy. It is part of the democratic process, involving the public in issues that concern it directly-use of its natural resources and prevention of environmental pollution. As noted by Sax, "[t]he enforcement of public rights, at the behest of members of the public, is thus the application of democratic theory to the al-

location of natural resources.221 Sax argues that natural resources have been treated as public goods, overused and abused, due to the lack of a "public-rights consciousness parallel to our concepts of private-rights consciousness.222 The development of a theory of public rights and their enforcement is a prerequisite to the restoration and protection of natural resources, for their protection should be in the hands of the public rather than those of bureaucrats, whose interests are not always identical.223 However, government institutions are considered, both by the courts and the legislature, as the major stakeholders in environmental issues, ignoring the public's interests in protecting its natural resources. Members of the public are regarded as "outsiders" by government institutions and the courts, and are not considered major players in the decision-making process concerning environmental policy.225 Yet this status as outsiders is precisely what gives the public its advantage in environmental enforcement, freeing it of those political pressures to which government bureaucrats are prone. From the perspective of Sax, the citizens' use of the courts as a means of enforcing environmental legislation is a guarantee of public participation in determining environmental policy.227

In Israeli reality, the government institutions described in Part II are political institutions, often headed by a political figure with no professional knowledge in his or her area of responsibility.228 Based in part upon Israel's multi-party political system, which results in fragile coalition governments composed of a large number of parties, a minister is susceptible to a wide range of influences. The case studies discussed below will demonstrate how political considerations can constrain ministries from taking enforcement measures against polluters, while in many of the same instances citizen suits can serve as independent mechanisms in bringing these issues before the courts. A private citizen or an environmental organization differs from an elected official wanting to be reelected four years later. Unfettered by political considerations, they are, in theory, at liberty to act without having to consider the political reper-

cussions. In light of government failure over an extended period of time to enforce water pollution legislation against the pig farm owners, the public would have been expected to file a citizen suit against the government for failure to take action.229 The reasons why no use was made of this option will be discussed in Part IV.

B. Citizen Suits in Israel-General Background

Israel has the necessary prerequisites for effective and efficient public participation in environmental enforcement. 23 It has a substantial body of environmental legislation that clearly defines environmental violations and recognizes the public's right to the conservation of the country's natural resources and to a clean environment,231 as well as the right to participate in the enforcement process under a broad definition of standing by means of citizen suits.232 These laws authorize the courts to impose substantial fines and prison sentences on violators and issue prevention and abatement orders. The country also enjoys a strong, independent judiciary dedicated to the rule of law.234 Judges and professionals are appointed by professional boards235 and are thus free of political leverage wielded by an electorate.

Access to government-held information has been guaranteed by the enactment in 1998 of the Freedom of Information Act.237 This law, by

determining the public's right to government held information, enables private citizens and public organizations preparing environmental citizen suits to access the vast amount of information held by government agencies.238 Although many government agencies have adopted citizen access to information as standard policy, the lack of specific legislation left the decision whether or not to allow access to the discretion of the individual bureaucrat. With the law's enactment, the right to information has been guaranteed and will greatly ease the most difficult obstacle in preparing citizen suits-acquiring the necessary information. In addition to granting access to information, government institutions will have to report on their activities, internal guidelines, and directives, which will create additional sources of information.

C. Citizen Suit Provisions in Israeli Environmental Legislation

Most of Israel's environmental legislation contains citizen suit provisions.24 The earliest provisions are the marine pollution prevention laws from the 1980s, based on the Barcelona Convention for the Protection of the Mediterranean 242: the Prevention of Marine Pollution by Oil Ordinance (New Version), the Prevention of Marine Pollution Law (Dumping of Waste),244 and the Prevention of Marine Pollution from In 1997, an umbrella amendment to five enLand Based Sources Law.

vironmental laws246 added various enforcement provisions, providing for higher fines, corporate liability, and injunctions to the Anti-Litter Law, the Prevention of Nuisances Law, the Roads Law (Signs), the HazardIt also added citizen ous Substances Law, and the Health Ordinance. suits to three environmental laws: the Anti-Litter Law, the Hazardous Substance Law, and the Prevention of Nuisances Law.249

As for water pollution, a citizen suit provision was added to the Water Law in 1991250 which, together with the Prevention of Environmental Nuisances Law (Citizen Suits), forms the legislative basis for public enforcement against water polluters. Both laws are discussed below.

D. The Prevention of Environmental Nuisances Law (Citizen Suits)

The Prevention of Environmental Nuisances Law (Citizen Suits Law) was enacted in 1992 with the express purpose of enabling both public organizations and private individuals to participate in the enforcement of environmental legislation.251 In contrast to other environmental laws whose enactment preceded awareness of the public right to participate in enforcement, and to which, consequently, citizen suit provisions were added as amendments at a later stage, the Citizen Suits Law was enacted specifically for public enforcement.252

The law's legislative history refers to strengthening environmental enforcement by adding a citizen suit mechanism to the existing public

criminal enforcement system. Legislators found this provision necessary "due to the lack of resources of the government authorities responsible for enforcement.,,253 The intent was to encourage grass-roots activities for environmental protection by empowering the public to sue polluters directly for prevention or abatement of environmental pollution.254

The Citizen Suits Law focuses only on prevention and abatement; the law does not contain provisions for damages to redress injury to the plaintiff deriving from the environmental nuisance.255 The law is based on the principle that, although environmental pollution often causes long term injury to the general public and not to one specific person, this should not prevent enforcement by the individualY6 The law grants standing to three categories of plaintiffs: 1) individuals who have suffered injury or are liable to suffer injury from an environmental nuisance;257 2) organizations listed in the addendum to the law;258 and 3) any environmental organization of which at least one member has been injured or is liable to be injured by an environmental nuisance.259 The law also allows for class actions, enabling large groups of people in which each individual suffers only minor injury from an environmental nuisance that would not justify a separate lawsuit, or by itself is not a sufficient incentive for an individual to take action, to sue jointly for a preventive order or a restoration order.26° Another reason behind the wide

standing provisions is the Knesset's awareness that an individual's lack of resources could prevent him from pursuing legal remedies to injurious environmental nuisances.26' The assumption was that granting standing to environmental organizations and providing for class actions will remedy environmental injury to the individual, while redressing the harm to society as a whole.262 The legislative history explains that the broad standing provided by the law is based on the United States' experience, which found it to be a significant factor in increasing citizen enforcement.263

The original bill proposed authorizing the courts to award litigation expenses and attorney fees to the plaintiff.264 This provision's purpose was to create an incentive for potential plaintiffs to file citizen suits by eliminating the disincentive of the high costs involved in filing the suit, and particularly to allay fears of court-imposed expenses if the defenIt was based on the assumption that the threat of finandants prevail. cial liability as a consequence of losing the lawsuit was liable to constrain individuals with limited financial resources from taking action, and that the polluter is better able to bear legal expenses than individual plaintiffs. However, this section of the bill was deleted due to the opposition of the Justice Ministry who felt that it had too strong a potential for misuse.267

The law deals with all categories of environmental pollution-air, noise, marine, solid waste, hazardous waste including radioactive waste, and water-as defined by corresponding law.268 Section 2 enables individuals injured or likely to be injured by an environmental nuisance to petition the court for an injunction. The court is authorized to order the person causing the environmental nuisance, or about to cause an environmental nuisance, to do one or more of the following: refrain from the act causing or liable to cause the environmental nuisance; repair damage caused by the nuisance or restore the polluted site to its state prior to the creation of the nuisance;269 and/or take all necessary actions in order to prevent re-occurrence of the environmental nuisance. In other words, the polluter must stop polluting, restore the situation to its condition prior to the pollution, and prevent its recurrence.

The Citizen Suits Law establishes criteria for the court in using its discretion to grant an injunction pursuant to Section 2. The court will balance injury caused or liable to be caused to the plaintiff or to the public against the injury that the party responsible for the nuisance or the public is likely to suffer pursuant to the injunction.70 This provision did not appear in the original version of the bill when it was introduced into the Knesset, but was added after the Justice Ministry expressed fears that courts would issue injunctions without taking into consideration other legitimate interests, such as national and public interests in continuing the polluting activity, or the significance of the injunction on employment issues.27' Concern for public welfare consequent to an injunction is reflected in Section 7. This section protects those who may suffer injury from an injunction against a water supplier by making the Water Commissioner ensure a constant supply of water for those likely to be affected as a condition precedent to an injunction.272

The law gives special attention to both recurring environmental nuisances,273 defined as the repetition of a certain environmental nuisance by the same party, and the failure to finish previously ordered clean-up and restoration work.74 If the nuisance from which the original action arose recurs within two years of the issuance of the injunction, the plaintiff is entitled to file an additional action without being required to give notification and wait sixty days before initiating action.275 Furthermore,

the court is authorized to award monetary compensation to the plaintiff for the injury he suffered from the recurring nuisance.276 This is the single instance in the law in which the plaintiff is entitled to receive damages; the only other remedy available being an injunction.

The Citizen Suits Law follows the rule of strict liability,

removing the need to prove the negligence of the party causing the nuisance. The legislative history of the law explains that this section was designed to remove any doubt concerning the question of intent on the part of the polluter to commit the act of pollution, stressing that since the polluter usually profits from the polluting activity, he is presumably better able to take the necessary measures to prevent the pollution and to absorb the costs of prevention.278 Thus, it is more desirable for the cost of restoration to fall on the polluter and not on the victim, regardless of the intent of the polluter.279

Section 8(b) of the Citizen Suits Law provides for limited government intervention. Even if the Environment Minister decides not to use his option pursuant to Section 5, which allows him to take action within sixty days following notification, 28 he is entitled to intervene concerning restoration orders.28 The law's legislative history explains that this sec-

tion's purpose is to defer to the Ministry's professional expertise to ensure the effectiveness of actions undertaken for restoration purposes.

The law passed despite the opposition of the Chief Justice of the Supreme Court, who, while not addressing the substantive issues of citizen suits, charged that the courts would not be able to cope with the addiIt met similar resistance tional workload that the law would create. from the Justice Ministry, which objected that the new law was superfluous since existing legislation already provided similar remedies284 and that the enactment of the Citizen Suits Law would adversely affect the economy. The Justice Ministry's assessment that existing legislation was sufficient was not completely accurate. It was based on provisions in the Torts Ordinance for both public and private nuisance torts.286 That law codifies the common law torts inherited from the British Mandate legal system, but ignores both the difficulty in proving cause of action in environmental nuisance cases and the fundamental role of environmental groups in litigation of citizen suits.287 While arguing that the new law was unnecessary, the Justice Ministry criticized basing the bill on United States legislation, claiming that, statistically, the average Israeli files a higher number of lawsuits than the average American, and there is no need to create new incentives for environmental lawsuits.

The objections of the Supreme Court and the Justice Ministry to the Citizen Suits Law are better understood in light of Israeli society's low awareness of environmental issues. The Supreme Court, an Israeli icon noted for its proactiveness in taking on cutting-edge issues affecting Israeli society as a whole,289 did not view the new law from the perspective of the country's need for creative legal approaches in the face of its serious environmental problems. Rather, it was viewed as a nuisance, creating additional work for the already over-worked courts while not guaranteeing the necessary supplemental budgetary resources.290 The Justice Ministry also did not realize the potential contribution of the Citizen Suits Law to the country's environmental issues, and instead was more concerned with the possibilities for the law's misuse.291 The law that the Knesset finally enacted represents a compromise between those promoting citizen suits as a supplemental enforcement mechanism and those afraid of granting non-governmental entities the power to do what is traditionally considered an exclusively governmental function.

The Water Law, which completes the legislative basis for public enforcement of water pollution issues by adding criminal enforcement, is discussed next.

E. The Water Law

In order to meet its most vital environmental challenge-the protection of Israeli water resources-Israel's legislature designed a law specifically geared toward the management of water resources in semi-arid climatic conditions.293 Section 1 of the Water Law provides for the centralization of all the water resources in the hands of the government.294 Section 4 states that property rights do not confer on the property owner rights to any water resource situated on, under, or adjoining the land. After declaring a person's right to receive water in Section 3, Section 5 narrows this right and makes it conditional to considerations of water conservation and prevention of overextraction.296 Section 6 links rights to receive water to specific purposes.297 Section 9 deals with water conservation-a fundamental principle in a water-scarce country-and sets out rules of behavior in dealing with water.298 If these rules are violated, the Water Commissioner is authorized to order the violator to comply with Section 20A them and to remedy any damage caused by the violation. defines sewage and storm water as water resources accorded full protecSection 20B(a) prohibits any action of the law, equal to freshwater. tion that may cause water pollution, as well as action that does cause pol-

lution.30 Section 20B(b) goes even further; the section prohibits the discharge of any material into any water source, without mentioning the word pollution.302

In 1991, after receiving ministerial responsibility for water pollution prevention, the Environment Ministry initiated an amendment to the Water Law that addressed enforcement of Article Al, which was passed as an amendment to the law in 1972. It contained provisions for substantial fines and imprisonment,3°3 corporate liability, injunctions to prevent or stop pollution,05 and citizen suits in the form of private criminal com plaints. The citizen suit provision states:

(a) The following may file a complaint as defined in the Criminal Procedures (Consolidated Version) Law, 1982, regarding a violation of Article Al:

(1)Any person who has been directly injured as a result of the violation;

(2)A local authority in whose jurisdiction an offense has been committed.

(3)The public and professional organizations as listed in the addendum as to any offense pursuant to this chapter; The Environment Minister, in consultation with the Justice Minister and with the approval of the Economics Committee of the Knesset, may change this list.3"7

(b) A complaint pursuant to subsection (a) will not be filed unless he has notified the Environment Minister of his intention to do so and an indictment in the name of the State Attorney General is not filed

The legislative history of this section is short:

In 1995, the citizen suits section of the Water Law was amended in order to grant standing to environmental organizations.3°

F. Summary

The 1972 and the 1991 amendments to the Water Law serve as the legal basis for water pollution prevention, and together with the Citizens Suit Law, provide a strong legislative basis for public participation in water pollution enforcement. However, notwithstanding the existence of these provisions, currently only seven citizen suits have been filed on issues of water pollution. Three of the suits have been filed as petitions for judicial review and three as private criminal actions.310 Only one has been filed according to the Citizen Suits Law.311 All except two-the Polag Stream case and the Ramat Hasharon case-were filed by Israel Un-

ion for Environmental Defense (LUED), a leading Israeli environmental organization which today dominates environmental litigation.313 Founded in 1991, the UED has modeled itself on the American paradigm of "adversarial environmentalism" by focusing on litigation of environmental issues. In order to guarantee itself freedom of action, the IUED does not accept government funding, but is instead funded by private foundations such as Ford, Nathan Cummings, Bronfman, and the New Israel Fund, an organization which focuses on the development of grass-roots movements.315 The IED has changed the course of public involvement in environmental issues by using large-scale litigation as a means of settling environmental disputes, a paradigm previously almost unknown the only Israeli environmental organization that consistently uses the courts as a means of both challenging governmental policy (or lack of policy) on environmental issues and addressing environmental injury caused to individuals and to society at large. The IUED employs a staff of twenty, including lawyers, scientists, an architect, and an economist, all assisted by volunteers.317

in Israel. It

is presently

G. Case Studies

The following three citizen suit case studies, all filed by the IUED, exhibit various aspects of the Israeli citizen suit mechanism. They demonstrate the possible legal options available, as well as the advantages and disadvantages of each. Similarly, they exhibit possible methods of coordination and cooperation between government institutions and environmental organizations. They will be examined and analyzed in order to evaluate their contribution to water pollution enforcement and to attempt to understand why so few have been filed, the issue addressed in Part IV.

Haifa Chemicals Industries Case Study

The Kishon Stream,

the third largest in Israel, is also its most pol-

luted.319 Sixty-three kilometers in length, its source is located in the pastoral lands of the Jezreael Valley, while its mouth is Haifa Bay's indus0 The heavy pollution of the Kishon Stream, from a variety of trial area.32 poisonous pollutants, including hazardous chemical substances and occurs at the stream's last segment before emptying into heavy metals, the Mediterranean. Here the Kishon flows through Haifa's heaviest industrial area, the location of some of Israel's most polluting industries: petrochemical, pesticides, and fertilizer plants, as well as oil refineries. Each of these industries have historically discharged their sewage into the Kishon Stream, transforming it into a hazardous waste site. There is no life in the lower stretch of the Kishon.24 In addition to polluting the stream, hazardous wastes are also washed out into the Mediterranean and Haifa Bay area.

Despite the immense environmental damage to the freshwater and as well as the ongoing danger to the safety marine habitats of the area, and well-being of the public from the discharge of the sewage into the stream and bay, the government has not taken enforcement measures It has not, however, remained unaware against the polluting industries. of the situation. For over twenty years, the Nature Reserves Authority, a government agency, has been monitoring the quality of the Kishon and publishing the results in documented reports.329

In 1971, the Health Ministry undertook a survey of the stream resulting in a detailed report of the sources of the Kishon's pollution, the categories of pollutants, and the amounts of wastes discharged into it.330 The report concluded that, due to the continual discharges of industrial waste, the Kishon at its mouth is extremely high in acidity and lacking in oxygen, incapable of sustaining life. In addition, it is a source of unpleasant smells and contains huge amounts of sludge.331 Despite this evidence, which not only indicated the stream's pollution but identified its polluters, the Health Ministry took no enforcement action against the industries polluting the stream.

In 1978, the Interior and Environment Committee of the Knesset raised the issue of the Kishon Stream, demanding that the Water Commissioner act immediately to reduce the pollution.333 In the same year, and probably as a result of the Interior and Environment Committee's action, the Water Commissioner issued a restoration order against the Haifa Chemicals Industry,334 the largest and most polluting of the industries.335

Haifa Chemicals is a subsidiary of the US company Trans Resources Inc., and is the world's major producer of potassium nitrate, made from one of Israel's few natural resources, potash.336 The order's deadline was extended twice, the last time until March 1980, after which the Water Commissioner apparently decided to let the matter rest; no more was heard about enforcing the order.337

With the creation of the Environment Ministry and its objective to restore the country's streams,338 the extent of the injury to the environment from pollution and the neglect of the government in taking measures to stop it began to receive more public attention.339 The Ministry demanded that Haifa Chemicals address the pollution it was causing through discharges to the stream.340 Haifa Chemicals' proposal, which consisted of a plan to dispose of pollution into the sea through a three kilometer long pipe,34' was rejected. The Ministry refused to allow the release of industrial sewage into the marine environment, and instead inIn response to the indussisted that the industry find another method.

try's arguments that no other solution would be economically feasible,343 the Environment Minister stated that he would not hesitate to close down the entire company if it continued to pollute, even if it meant putting several hundred people out of work.344 As public interest and awareness of the extremely degraded state of the Kishon Stream developed, the Environment Ministry and the industry continued to bicker over methods of treatment. Meanwhile, the IUED started an investigation of the plant's environmental offenses.345

Based on its investigation, the UED decided to take legal action against the industry. It operated with the cooperation and coordination of ministry officials, who felt that the chances of government litigation against Haifa Chemicals were fairly small, and thus were interested in the IUED pursuing the case.346 On May 30, 1994, the UED sent a formal notification letter to the Environment Minister concerning its intention to file a private criminal complaint against Haifa Chemicals and the D'shanim factory347-manufacturers of agricultural fertilizers who also discharged into the Kishon-for violations of the Water Law and the

Prevention of Marine Pollution from Land Based Sources Law.348 On May 31, 1994, a notification letter was also sent to the polluting industries.349 Haifa Chemicals officials denied neither the damage caused to the aquatic and marine environment by the discharge of the industry's sewage into the stream, nor the consequent violations of the Water Law and the Prevention of Marine Pollution Law.35° The industry argued, however, that it was cooperating with the Environment Ministry and other government agencies on a project to stop the discharge of sewage into the Kishon Stream. In addition, it asserted that a steering committee appointed by the Environment Minister was presently checking the viability of the proposal.351

Industry officials were correct in their description of the relations between the industry and the government. Despite undisputed violations of environmental laws as a result of the sewage discharge into the Kishon Stream, the government chose not to bring legal proceedings against Haifa Chemicals but instead attempted to stop the pollution through negotiation and coordinated action.352 By non-action, the government had tacitly given the plant its approval to continue dumping sewage into the stream.353 A major obstacle to government enforcement against the Kis-

hon petrochemical industrial complex, other than the fact that it is among the largest industries in the country, employing thousands of workers and bringing in foreign currency,354 is that it also supplies and manufactures essential goods and services.355 Obviously, the government had no intention of closing them.356 The industries are aware of their strong negotiating powers, a major disincentive for them to come into compliance.

Part of the perplexing enforcement dynamics were the close ties between government and polluting industries. Indeed, the biggest polluters-the oil refineries, electric, Israel Chemicals-were government-owned corporations. Their directors frequently were highly respected, retired, senior, military officers. They brought their singleminded commitment to state security to the pursuit of state profits. Naturally, they felt quite confident in the support they received from 357 the highest levels of government.

This is an example of institutional lack of will to act, a result of economic and political considerations that prevent effective action against the polluting industry.358

Into this quagmire entered the IJED. Since the State Attorney General did not serve an indictment against the two polluting industries within sixty days following notification, the UED was free to proceed by itself. It did so by serving a private criminal action against Haifa 359 Chemicals, Deshanim Fertilizers, and the directors of both companies. The litigation proved difficult. The UED was confronted by a mass of technological and scientific data with which it had to contend, together with one of Israel's largest and most prestigious law firms representing

0 The trial dragged on for two years, until the judge the defendants.36 pushed both sides into negotiating a settlement.361 In November 1996 the IUED reached a consent decree with Haifa Chemicals that defined a time schedule for the termination of sewage discharges into the stream and imposed monitoring and reporting duties on the industry.362

The high penalties imposed on Haifa Chemicals as a result of the consent decree constituted a precedent for environmental litigation in Israel. Each fishing company that had joined the action as a complainant received awards ranging from NS9,100 (approximately US$2,000) up to NS30,250 (approximately US$7,000) as compensation for injury incurred as a result of the pollution.363 Haifa Chemicals also agreed to establish a fund for environmentally beneficial activities in the area of the Kishon Stream and Haifa that includes monitoring and educational environmental programs and transferred US$250,000 into the fund to finance its activities.64 In addition, the industry consented to pay the IUED US$475,000 in attorneys' fees.365 The consent decree left the case in the hands of the Environment Ministry, the institution considered by all parties to be the most professionally capable of dealing with it.

Lessons from Haifa Chemicals

The IUED's citizen suit against Haifa Chemicals served as the incentive for the industry to finally stop its enduring but illegal procedure of dumping hazardous wastes into the Kishon Stream. While efforts made by the Environment Minister and his staff to persuade the industry to stop its polluting practices proved unsuccessful, the Haifa Chemicals case study demonstrates the effectiveness of public enforcement, even when the polluter is powerful and politically well insulated. In addition, it helped that the management of Haifa Chemicals, a U.S.-owned company, was desperate to rid itself of the pending criminal action, due to the possible consequences on its international trade:

The roots of IUED's success in the case may well lie in the shared American sensibilities of the primary protagonists in this dispute. The in the Israeli context, followed a wellsettlement, while novel recognized model of environmental dispute resolution in the United

States, and the benefits that the company derived from its concessions in the case lay, in the large part, outside of Israel. The lawsuit threatened both the personal reputation of the American company's directors and the standing of its stock offerings on Wall Street. Furthermore, protracted entanglements in an Israeli court case concerning the pollution of Mediterranean seawater could have significant

repercussions for the Company's operations worldwide.367

Although at the time the Ministry had a forceful, outspoken minister who threatened the industry with closure, Haifa Chemicals probably saw these threats as fairly empty. The company's strong political connections, its contribution to Israel's foreign trade, as well as the high number of workers the industry employed made it confident that the Minister would never get government backing for carrying out his threats, no matter how serious the damage to the environment.369 It was the citizen suit that convinced Haifa Chemicals that it was not worth their while to pollute.37°

The Haifa Chemicals case is an example of an environmental organization doing the work that the government should have done. For years the industry had been polluting the stream and the sea without opposition from the responsible government institutions, who preferred political and economic interests over environmental ones and feared fierce political resistance to any attempted enforcement measures.37' The citizen suit, as exercised in this case, can be viewed as an alternative enforcement method to be used in instances where the institutional will to act is lacking.

367. Morag-Levine, supra note 143, at 14. 368. See supra note 344. 369. This is solely the opinion of the author. 370. See Telephone Interview with Shoshanna Zeisel-Perry, supra note 337; Telephone Interview with Elik Adler, supra note 344; see also Bitter Waters, supra note 179. But note must also be taken of the positive relations between the IUED and the Ministry. The litigation had been initiated after consultation with the Ministry who gave it its total support, it was based on evidence supplied by the Ministry, its main witness was a ministry official while the technical-scientific aspects of the case, inclusive of proposed solutions for treatment of the industry's sewage, had been examined and approved by the Ministry professional staff. Telephone Interview with Elik Adler, supra note 344.

371. For example, the major stockholder of Haifa Chemicals, Aryeh Genger (who had bought the company from the government), is a close friend of Ariel Sharon (who has held various ministerial positions, including that of the Commerce and Industry Minister). Sommer, supra note 336, at 12.

Safed Case Study

The city of Safed, situated on one of the highest points of the Upper Galilee Mountain Range in northern Israel, is located in a hydrologically sensitive watershed area. Any untreated sewage eventually finds its way into the Sea of Galilee, Israel's major surface drinking water resource. Along the way, the sewage will pollute a large number of streams, some For years of which are located in legally declared nature reserves. Safed's sewage has done just this, flowing downhill by way of the Amud and Achbara Streams and eventually reaching the Sea of Galilee via the Rosh Pina Stream and the Jordan River.373 Due to its sensitive location and the consequences of its untreated sewage on the entire country,374 Safed received substantial government funding in the early 1980s that enabled it to construct a state of the art treatment plant based on the activated sludge method.375 However, due to a fast population growth and industrial development, the treatment plant was soon operating in an overload capacity, unable to treat the sewage to the quality necessary to prevent environmental and ecological damage.376 Furthermore, the city, while establishing rapid development as its overall policy, did not grant sewage infrastructure the same priority.377 Thus, new homes were completed and occupied without the appropriate sewage facilities, resulting In the case under discussion here, Nof in additional water pollution. Kinneret, a new residential subdivision of approximately 1000 units, was nearing completion and would be ready for occupancy without a sewage treatment and purifying infrastructure.379

Ministry officials had become involved in the case in 1992 when a sewage plan for the new housing development was brought before the regional sewage board for its approval. Ministry representatives rejected the proposal linking the neighborhood, located too far from the city's treatment plant to make hooking up to it practical, to a dysfunc-

tional sewage treatment plant located outside the city's boundaries.38 Consequently, Ministry officials also opposed the building plans until the planning board agreed to stipulate that occupancy of the new housing development would be conditional to building a local treatment plant that would guarantee protection of water resources.382 Furthermore, the city's mayor, in answer to a letter from the Environment Minister expressing trepidation as to the use of the new homes, personally promised that no one would be allowed to move into the new subdivision until the completion of sewage treatment facilities.383 The mayor, however, was defeated in the next city elections, and the newly elected mayor hedged on his predecessor's pledge, arguing that the issue of occupancy of the new homes is not the responsibility of the city, but rather of the Housing Ministry.384

The new mayor's unwillingness to cooperate forced Ministry officials to consider legal action to prevent occupancy. The pressure exerted on the Environment Minister by the city's mayor was the primary obstacle to ministry litigation against the city.385 After receiving official notification of the Ministry's intention to file suit against the city,386 the mayor started negotiating first with the Ministry's general director and then with the Minister himself in an attempt to avoid litigation while simultaneously persuading the Minister to allow occupancy of the new housing development.387 The strategy succeeded. The mayor was allowed to issue occupancy permits for eighty homes in exchange for a promise that this would be the maximum amount that the city would grant until a solution for the sewage was found.388

Ministry officials' fears were not assuaged by the mayor's promises.

They were convinced that the only way to minimize the ongoing damage from the sewage discharge was to initiate court proceedings against the city. However, the political echelons of the Environment Ministry were hesitant; they feared a political backlash from government prosecution of the city and its mayor, who was affiliated with a coalition-member party.

Another obstacle preventing litigation was the involvement of the Housing Ministry. The Housing Ministry had initiated most of the new development in Safed, contracting out the actual building to government corporations.390 Faced with these barriers to litigation and fearful that the mayor would not withstand the demands of would-be residents to enter their homes, the Environment Ministry staff turned to other government institutions for help. The director of the Ministry's northern office wrote to the Water Commissioner requesting, in light of the severe threat to water resources posed by the occupancy of Nof Kinneret, that he use administrative authorities pursuant to the Water Law to prevent access to a water supply for the new neighborhood.39' He also tried to persuade the Interior Ministry's administrator for the northern region (who was also chairman of the Northern Region Planning and Building Committee) to use his powers pursuant to the Planning and Building Law to order the city to refrain from issuing occupancy permits for Nof Kinneret until sewage treatment facilities were installed.392 The district attorney for Israel's northern region was requested to file for a moratorium on occupancy of Nof Kinneret. She replied that the issue under discussion was not justiciable since another government institution, the Housing Ministry, was responsible for the construction and use of the new neighborhood.393 The Environment Minister wrote to the Housing Minister asking

him to use his authority to prevent occupation of the new subdivision.394 Finally, the Environment Minister requested the intervention of the State Attorney General in light of the inter-institutional conflicts concerning Safed's sewage in a letter that illustrates the barriers to efficient enforcement created by a multi-institutional structure:

The new neighborhood Nof Kinneret, located in the city of Safed, was built by the Housing Ministry without any suitable sewage treatment, despite warnings issued by our ministry. The Housing Ministry is presently marketing these homes without sewage facilities. Use of the neighborhood will cause the discharge of sewage by way of the Rosh Pinah Stream and the Jordan Stream into the Sea of Galilee, and will pollute it.... Our ministry, responsible pursuant to the Water Law for preventing the pollution of the country's water resources, is presently trying to prevent Safed from allowing occupation of the neighborhood.... Since the mayor of Safed will not commit himself to this end, and in order to prevent pollution of the Sea of Galilee, we asked the Haifa District Attorney to request a court order prohibiting use of Nof Kinneret until the completion of sewage treatment facilities. The District Attorney's reply was that the issue is not justiciable: the Housing Minister is the contractor here and therefore [instead of litigation] the government must determine as policy that homes cannot be built without the simultaneous construction of sewage facilities, and of course homes cannot be occupied as long as there is no sewage solution.

The Housing Ministry, when it builds and allows occupation of homes that are lacking solutions for sewage treatment, violates the Water Law-which applies also to the State-that prohibits any action that will cause, or is even liable to cause, water pollution. Since the issue under discussion is the commitment of a crime by a government ministry, I am requesting your intervention in order to prohibit occupation of the neighborhood.... 395

The Attorney General did not intervene. The Environment Ministry had failed in its attempt to coordinate inter-ministerial government action to address a problem of national proportions. Meanwhile, the Ministry's distrust of the mayor's promise not to grant occupation permits to the more than eighty families waiting to move in were well founded. In Sep-

the litigation. Despite the initial refusal discussed above, and as a result of later complications in the litigation resulting from the Housing Ministry's involvement, the Justice Ministry eventually-and ironically-insisted on taking over the case. See supra text accompanying notes 159-163.

394. See Letter from Yossi Sarid to Benyamin Ben Eliezer (Apr. 25, 1994) as quoted in

and attached to Petition to the High Court of Justice, supra note 383, para. 4.13.

395. Letter from Yossi Sarid to the State Attorney General, supra note 394.

tember 1995 officials discovered that over one hundred families were living in the new neighborhood. Despite this evidence of violation of the agreement between the Minister and the Mayor, the Ministry still did not initiate litigation. Another obstacle had arisen: delays in completion of the investigation by the Ministry's enforcement branch was preventing initiation of criminal proceedings.397 The resultant non-action frustrated and demoralized the professional ministry staff involved in Safed's pollution problems. Not only was their professional prestige on the line, but there was a more important issue at stake: protection of Israel's drinking water resources was the legal responsibility of the Ministry, and Safed's untreated sewage constituted a very real threat to their purity.

The IUED had been following the Safed sewage controversy since 1992.399 In light of the Ministry's non-action, IUED representatives approached officials from the Environment Ministry's northern region office with the suggestion that the environmental organization file a lawsuit against the city of Safed.400 The proposal was greeted enthusiastically by Ministry officials, but because of the ambiguous nature of Ministry policy as to cooperation with environmental organizations in enforcement issues, there was no formal recognition of the proposed strategy. The proposal was developed through the personal connections of officials of the Ministry's northern office and the IUED. The Ministry staff supplied the UED with the necessary data and information, including a substantial amount of inter-institutional correspondence, and took representatives of its legal staff on a field trip to the areas under controversy in order to explain the scientific and technical pollution issues.

The 1UED chose to act by filing a petition to the High Court of Justice against the city of Safed and its mayor, the Interior Minister, the Agriculture Minister, and the Environment Minister402 for failure to take action against Safed.403 The IUED filed a twenty-one page petition describing in detail the environmental nuisances arising from the city's improperly treated sewage and the efforts of the Environment Ministry over the years to make the city undertake the necessary actions to abate the pollution.404 The petition was two-pronged, challenging the city's failure to upgrade its sewage treatment plant and correct its deficiencies, as well as its authorization of Nof Kinneret's occupancy prior to installation of sewage infrastructure. The petition was based on the multifarious reports and letters that had been written since 1991 on Safed's sewage problems by Ministry officials and that served as the petition's

backbone, thus creating an unusual situation, in which a petition against the government was based on evidence generated by government officials.

The petitioners requested that the city immediately take action to prevent pollution of water resources by installing appropriate sewage infrastructure throughout the city, purifying the water to the required legal levels, as well as finding solutions for proper disposal.°7 The city was also challenged for its failure in both preventing occupation of the city's new neighborhoods until construction of suitable sewage facilities and in legislating a municipal by-law on pretreatment of industrial sewage, a condition for receiving government funding.4°8 The High Court of Justice accepted the IUED's petition and ordered the city and the government, respectively, to explain why, in light of the uncontested ongoing environmental and ecological damage caused by the sewage discharge, the city had not taken action and the government had not enforced the Water Law against Safed.4°9

The High Court's decision, in contrast to the consent decree of the Haifa Chemicals case, was not intrinsically interesting or creative from an environmental perspective, nor did it grant the moratorium requested It was a stanby the petitioners on further occupancy of Nof Kinneret. dard judicial review decision, ordering the government to answer the petitioners' charges within forty-five days.412 However, the decision did serve as an incentive for the government to take action. Subsequent to the High Court's decision, the government completed the criminal investigations that had been dragging on for several years and initiated court proceedings.413 In February 1996, the Environment Minister served an indictment for crimes of water pollution against the city of Safed, the mayor, and the head of the city's sewage department.4t4 Together with the indictment, the Ministry filed a request for a moratorium order

against the use of structures lacking sewage treatment infrastructure.45 In granting the moratorium, the court's judgment became a landmark decision in Israel's environmental case law, emphasizing the connection between lack of sewage infrastructure and pollution of water resources, and determining the responsibility of municipalities to ensure that local development is conditional to construction of commensurate sewage infrastructure.416 The original court-ordered moratorium remained in effect until the city constructed a local sewage treatment facility that treats the sewage before its discharge into the Tsachar treatment plant. The moratorium still exists in a modified form, limiting occupancy of Nof Kinneret to the capacity of the present facilities. In addition, after years of delay by the city despite the litigation, an upgrade of the city's principal sewage treatment facility has finally gotten underway.47

As for the citizen suit, although the Ministry declared to the High Court of Justice that it had taken the required action against Safed, the court did not dismiss the UED's petition. Instead, the court has remained in a quasi-monitoring position to ensure that enforcement will be continuous and effective.418

Lessons From Safed

The case of Safed exemplifies the use of a citizen suit as an incentive for government action. As described above, different government institutions refused to cooperate over the growing problem of Safed's sewage; the Housing Ministry built new neighborhoods in Safed without the commensurate construction of sewage infrastructure. The Interior Ministry did not demand that the city erect sewage infrastructure nor did it use its authority to prevent possession of the new homes. The Water Commissioner could have used his extensive administrative authorities to stop or minimize the pollution-for example, by refusing to allocate water for the new neighborhood-but chose not to. The district attorney refused the Environment Ministry's appeal to file a request for a court order to prevent occupation of the new neighborhood. The State Attorney General, who has both the legal and administrative power to call these recalcitrant institutions into order and force them to work collaboratively to end the environmental nuisance posed by Safed's sewage, failed to take up the challenge. Faced with the inter-institutional confusion as to proper government policy in an issue involving several government institutions, and the lack of institutional will (of the Environment Ministry) to enforce the law,419 the Ministry's professional staff came to the conclusion that a citizen suit could trigger the Ministry into action.

Similar to Haifa Chemicals, the citizen suit in the case of Safed is marked by ongoing cooperation between Ministry officials and the UED, encouraged by the then Minister. The contribution of these officials to the entire process also demonstrates that, even in cases of insufficient institutional will to enforce the law, or, when governmental policy is simply lacking, individuals can have a significant impact on the system. Although in the case of Safed this contribution was positive in nature, it would be all too easy to create the opposite situation: e.g., because of the failings of the institutional structure, individuals can acquire and abuse a substantial amount of power. Thus, it would not be correct to build a model for cooperation between government and environmental organizations based on the good will of a few officials or an enlightened, albeit temporary, minister who succeed in working around the system; cooperation must be based on official Ministry policy.

Or Akiba Case Study

The previous case studies demonstrate the potential for citizen suits as either an alternative enforcement mechanism when government agencies do not exercise their authorities, or as an incentive to prod them into action. The following case study illustrates a situation in which both the government and the citizen want to file a suit on the same issue.

The town of Or Akiba is located near Israel's Mediterranean coastline not far from Haifa. The town discharges its sewage into the Ada Stream, a tributary of the Taninim Stream,42' one of Israel's less polluted Raw sewage coastal streams and a legally declared nature reserve. flows into the town's small, dysfunctional oxidation ponds, from which an overflow pipe discharges the low quality effluent directly into the strearnflow.43 In addition, the ponds occasionally overflow, creating a danger of groundwater pollution through seepage.424 The discharge, a violation of the Water Law that has continued over an extended period of time, persists despite the construction of a sewage treatment plant in the nearby town of Hadera that was designed to receive and treat sewage from several local towns, including Or Akiba.42 ' The city claimed its inability to hook up to the new treatment plant was due to a lack of funding. On the basis of this argument, Or Akiba rejected responsibility for any resulting pollution.426

The Environment Ministry, aware of the massive environmental damage and keen on cleaning up Israel's polluted streams, has not ignored the situation. The Ministry has initiated a new project, entitled

"Life for Israel's Streams," with the purpose of rehabilitating the counSince Or Akiba is the major polluter of try's polluted coastal streams. the Taninim Stream, the Ministry's enforcement measures have concentrated on the town-particularly in light of the fact that the town has, as mentioned above, an existing solution for its sewage.

In most cases, Ministry policy concerning ongoing violations occurring over a long period of time is to negotiate a compliance deadline with the offender, rather than initiate legal action immediately.48 This is out of recognition of the complexity-from a technical and a financial viewpoint-of planning and constructing the multi-million dollar sewage treatment plants necessary to contain and treat sewage.429 As for Or Akiba, prior to the completion of the regional sewage treatment plant, the Ministry did not see much point in litigation since the town would cor430 rectly argue that it was lacking an end-of-line solution for its sewage. However, when the plant did become operational in 1996, the Ministry started pressuring the town to connect its sewage line to the new facilities. Officials in the Ministry's Haifa office sent the town and its mayor both official and unofficial warnings, sat together in numerous meetings in an attempt to negotiate a time schedule for compliance, and served as go-betweens with other government institutions. In September 1997, after none of these actions produced any results, the Ministry served official notice pursuant to Section 20V of the Water Law that it would start formal legal proceedings.433 In addition, it initiated an inves-

tigation with the purpose of filing criminal charges.434 However, demonstrating the Ministry's difficulties in enforcement against local governments, political considerations intervened. The Environment Minister, after a visit from the mayor of Or Akiba, ordered a three-month moratorium on any criminal action against the town435 in exchange for the mayor's promise to connect up to the regional sewage plant during this period .

Meanwhile, the IUED had decided to become involved. It requested and received a meeting with ministry officials in the Water Quality and Streams Department regarding cooperation in water pollution enforcement. The IUED's representative at the meeting explained that the organization's purpose was to coordinate water pollution enforcement with the Ministry. He therefore requested information on instances of water pollution by Or Akiba regarding which the Ministry was not planning to In other words, the proposal was to "divide up" cases retake action. quiring litigation in order to conserve resources and avoid duplicate work. In light of the stalemate reached in the Ministry's attempt to sue Or Akiba,439 and as a means of circumventing political deals between the mayor and the Minister, Ministry officials recommended that the UED file a citizen suit against Or Akiba.440

On January 13, 1998, the IUED sent formal notification to the Environment Minister, the town of Or Akiba, and its mayor, pursuant to the Water Law and the Citizen Suits Law, regarding its intentions to sue the town if it did not connect to the regional sewage plant.441 On March 13, 1998, the organization served an additional Letter of Notification to each party, and also to the board of directors of the company managing the sewage treatment plant. The Environment Ministry allowed the statutory sixty-day response period to expire without taking any legal action against any of the parties.443 However, this was not because the Ministry did not intend to act. Ministry officials were already in the midst of a criminal investigation with the intention of filing the case in court.444 However, officials feared that the heavy political pressure being exerted on the Minister by the town's mayor might lead to an extension of the ministerial moratorium; they were wary of barring the IUED from action if politics prevailed and the Ministry was coerced into abandoning the case.445 The 1UED, through the open communication channels it held with several ministry officials, was aware of the difficulties the Ministry was experiencing. However, it was made clear to them that, notwithstanding the earlier recommendation that the IUED handle the case against Or Akiba, at this stage the Ministry intended to take action. As a consequence, the 1UED adopted a double strategy: continue to prod the Ministry in an effort to have it file its own lawsuit, while at the same time pursue a separate case with the intention of filing in the event that the Ministry did not. In other words, IUED's strategy was to serve as an incentive for Ministry enforcement while simultaneously preparing the base for alternative enforcement."7 As part of this strategy, IUED officials were in constant telephone contact with Ministry officials, requesting information on the state of the investigation and the estimated target date to filing the lawsuit in court."8 The organization's attorney handling

the case explained that the JUED was not in "competition" with the Ministry to see who could file first in court, and if the Ministry completed the investigation and went ahead and filed, the IUED would stop pursuing its own case.449 However, she clarified that the degraded state of the Taninim Stream was a public issue of great concern to lUED's members, and furthermore, the organization had invested substantial amounts of money in preparing the case. She explained that this expense could only be justified by either the UJED continuing with the litigation or the government filing as soon as possible.45 0 Thus, the IUED saw itself as a watchdog, guaranteeing that the case would reach the courts either through the government or the IUED citizen suit.451

By the end of April, the IUED decided to delay no longer and filed a private criminal action in Haifa's magistrate court pursuant to Section 20Y of the Water Law, together with a motion for an injunction against Or Akiba and against its mayor.452 The action requested that the court

issue an injunction ordering the defendants to immediately take action in order to prevent, stop, or minimize the pollution to the Ada Stream... by taking any action necessary to connect Or Akiba with the sewage treatment plant in Hadera and to transport Or Akiba's wastes to the treatment plant, and/or refraining from any action which will prevent Or Akiba's hooking up to the treatment plant.... In addition and/or alternatively-to discharging all their debts to the company managing the treatment plant....

The plaintiffs also requested an injunction preventing the occupation of new homes in the town and/or the issuance of building permits until the completion of the hook up.454 No substantive decision was given regarding the request for the temporary order, as the case was transferred to the Hadera court for procedural reasons with no date set for a hearing.455 Meanwhile, Ministry investigators had completed their work and, in accordance with Ministry practice, transferred the file to the legal of-

fice.456 The file was forwarded to the State Attorney General for his approval457 on May 21, and was returned approved to the Ministry on June 16.458

On June 18, the IUED's attorney formally notified the Ministry's legal office that the hearing on the motion for an injunction had been set for July 15 in Hadera. The Ministry's legal office was in a quandary. The IUED had fulfilled all its preliminary obligations prior to filing the citizen suit and had served notification of its intended action months earlier.459 On the other hand, the Ministry wanted to pursue its own case against Or Akiba.460 The issue was a precedent. A citizen suit had been filed following the proper notification period of sixty days, after which time the government decided to file its own lawsuit against the polluter. Faced with this apparent dilemma, the legal office decided to request directives from the State Attorney General.

In a letter dated June 29, the Ministry expressed its appreciation of the IED's work and the importance of continuing the present cooperation between it and the Ministry.461 The legal office emphasized that it wanted to allow the IUED to litigate its own case while permitting the government the opportunity to present its position.462 Three solutions were proposed: (1) The government would file its indictment against the town while requesting the court to join the IUED's criminal action with the government's case; the litigation would be handled jointly by the government and the IED; (2) instead of filing criminal charges against

the polluters, the government would sue the town in a civil action for a public nuisance together with a request for an injunction, allowing both for the IUED action and any future ministry criminal action, if necessary; (3) for the present, the government would take no action, but would In the future, the government would conmonitor the IUED's case. sider indicting the town for water pollution on dates later than those specified in the IUED's charge sheet.464 Another problem raised in the letter was that the UED had invested time and money in preparing the citizen suit, and since the government had not filed within the sixty-day notification period had rightly assumed that it would not be prevented from litigating it in court. In a telephone conservation, the IUED's director informed the legal office that if the State Attorney General decided to go ahead with the government's case and litigate without the IUED, the organization would consider petitioning the High Court of Justice, challenging the State Attorney General for misuse of his prosecutorial discretion.465

Before any answer was received from the State Attorney General, the magistrate court in Hadera summarily dismissed the LUED's lawsuit.466 Immediately upon receiving notice of the court's decision, and after discussing the issue with the UED, the legal office notified the State Attorney General's office that in light of the new developments the Ministry would proceed with its the case and the IUED would not refile.467 The Environment Ministry then filed a criminal action together

with a motion for an injunction against the town and against the mayor for violations of the Water Law. Despite repeated court hearings, no injunction was granted.469 During one session in court, the court suggested that the two sides reach a compromise.47 0 Turning to the government's attorney, the judge questioned the effectiveness of the injunction request, if the town had no means of financing the hook-up to the sewage treatment plant, anyway.47' Continuing this line of reasoning, he further explained that if the town violated the court order because of lack of funds, the resulting contempt of court order would also not succeed in connecting the town to the treatment plant.472 Eventually, the two sides took the judge's advice and reached a compromise; the town received funding from various sources, enabling it to hook up to the sewage treatment plant in Hadera in May 1999.7

Lessons From Or Akiba

The Or Akiba case study is an example of good intentions gone awry. It demonstrates the possibilities for cooperation between a government institution and an environmental organization on enforcement issues--e.g., in order to improve enforcement against water polluters, the IUED and the Ministry decided to divide up the workload between the two institutions. Or Akiba is a good example-the town had been discharging its sewage for years into the stream despite the Ministry's warn-

ings and an existing solution for the sewage.474 Notwithstanding its efforts, the Ministry had not succeeded in making headway: the town's mayor was exerting political pressure on the Minister while the criminal investigation was advancing at a snail's pace.475 The fact that the investigation was allowed to continue after the meeting between the IUED and Ministry officials is a result of the Ministry being a large bureaucratic in476 stitution with multiple departments. Although one department agreed to the IUED litigating the Or Akiba case, other departments were intent on the Ministry handling the case (and getting both credit and media coverage for doing so) and would not have agreed to stop the investigations. Thus, although in one aspect the case serves as an example of coordination between the government and a non-governmental environmental organization, in another aspect the coordination was only partial and not particularly effective.

Ministry officials had suggested that the IUED intervene in the Or Akiba case more out of desperation than out of intention to coordinate efforts to benefit enforcement generally. In addition, the request was not that of the Ministry as a whole, and could not be considered an expression of Ministry policy.477 It was primarily a decision of a few officials, the result of the demoralization created by the slow workings of the Ministry bureaucracy and the political pressures exerted on the Minister.478

With the benefit of hindsight, the results might have been avoided if the strategy between the IUED and the Ministry had been clearer. When Ministry officials recommended that the IUED litigate the case, all further Ministry work in pursuing it should have stopped. This would have both conserved Ministry resources, allowing it to pursue investigations against other polluters, while avoiding the conflicts created by two paral-

lel investigations. Conversely, the UED could have insisted that its litigation of the case was conditional to the Ministry's agreement that all further work would be the IUED's alone, rather than threaten its own litigation as an incentive to get the Ministry to file its lawsuit faster.

The confusion illustrated by the Or Akiba case study reflects the Ministry's ambivalent feelings toward citizen suits. While supporting their use as a supplemental source of enforcement, individual ministry officials tend to regard citizen suits as an encroachment on their turf and a threat to their power and authority. Therefore, as in the Safed case study, contacts with the IUED tend to assume a "behind the scenes" veneer; the outcome of meetings are considered only quasi-official and are liable to change. An official ministry policy on cooperation with environmental organizations would improve the effectiveness of citizen suits and avoid the duplicate work demonstrated by the Or Akiba case.

H. Summary

The case studies discussed above demonstrate the possibility of integrating citizen suits with water pollution enforcement issues in Israel today. The Safed case study demonstrates the use of a citizen suit as a petition for judicial review of the government's failure to take action against a city for polluting water resources. This form of citizen suit is a paradigm of the use of the Supreme Court, sitting as the High Court of Justice, as the protector of the individual's rights against the government, an absolute necessity in light of the fact that Israel is still lacking a constitution.479 Citizens have long used their legal right to judicial review by the High Court of Justice "to order State and local authorities and the officials and bodies thereof, and other persons carrying out public functions under law, to do or to refrain from doing any act in the lawful exercise of their functions or, if they were improperly elected or appointed, to refrain from acting.'480 Israel's Supreme Court is an activist court, and has traditionally and historically granted wide standing to petitioners as well as readily regarding almost all issues brought before it as justiciable.481 Environmental citizen suits expand this use of the court's authori-

ties, using them to solve a problem common to the entire publicprotection of natural resources.

This form of citizen suit is the most traditional in Israel's short environmental legal history, and as shown in the Safed example, is a successful means of prodding the government into action. The High Court of Justice, Israel's highest court, has the added advantage of holding both the public's immense respect and reverence for its decisions, and the government's obligation to uphold them.4a2 A disadvantage is the Court's apparent hesitation in issuing injunctions, as demonstrated by the Safed case.483 Another disadvantage is that the High Court's power is limited to government actions484-no punishment is meted out to the common polluter, as in a criminal citizen suit.485 Timing is also an issue, for the overburdened court has a very full schedule and intervals between hearings can be months, if not years. However, a petition to the High Court of Justice does succeed in transforming the court into a watchdog over government action, a role which it is apparently, as demonstrated in the Safed example, ready and willing to fill.487

In contrast, the form of citizen suit used in Haifa Chemicals and Or Akiba was that of private criminal actions. The vast majority of Israeli environmental legislation is criminal, which is considered preferable to civil actions by both the Ministry and the UED because of its efficacy as a deterrent against future violations. It is particularly effective in a small

country such as Israel, not only against the defendant, but also potential future polluters.48 8 As demonstrated by Haifa Chemicals, a criminal action against a corporation can be also be a significant economic deterrent, especially if it threatens the corporation's international trade.

Generally, criminalizing environmental misdeeds also has social value in that it conveys to the public the value of a clean environment; declaring water pollution a crime subject to a prison sentence exemplifies the damage to society as a whole if its water resources become polluted. Thus, the effect is greater than if the action was relegated to a tort nuisance.

Nonetheless, as shown in the Or Akiba case study, criminal citizen actions also have disadvantages. Due to the harsh consequences to which the defendant is liable if found guilty, such as high punitive penalties, imprisonment, and the stigma of a criminal conviction, the courts stringently interpret criminal procedure.491 The Ministry directive to interrogate suspects as part of the investigation procedures is without question procedurally and ethically correct. However, as demonstrated, this requirement is open to manipulation and misuse by the suspect-e.g., by not reporting for the interrogation, he can succeed in delaying legal action against himself.492 Another disadvantage is that the burden of proof is on the prosecutor, which requires a great amount of work and time to build a tight case. The time factor is of particular importance in cases when there is a need for immediate action. A procedural disadvantage of criminal citizen suits is Section 71 of the Criminal Procedure Act,493 which requires the court to forward a copy of the action to the District Attorney prior to the hearing, to allow him to consider litigating the action instead of the private prosecutor.494 The Act grants him fifteen days

to inform the court of his decision.495 Thus, in addition to the sixty-day notification period required pursuant to Section 20Y of the Water Law, the citizen will also have to wait an additional fifteen days following the filing of the suit. The court in Or Akiba interpreted this provision strictly, delaying the initial hearing until this provision had been complied with by the complainant.496.

It should be noted that despite the efforts invested in its enactment, the Citizen Suits Law has only been used once for water pollution enforcement.497 This does not seem particularly incongruous considering the current small number of water pollution citizen suits in general, although it is ironic considering the trepidation expressed by the Supreme Court and the Justice Ministry regarding the anticipated deluge of citizen suits with the enactment of the law.498

Interwoven throughout the three case studies is the high degree of cooperation and coordination exhibited between the Ministry personnel and the HJED. In each instance, the Ministry supported the IUED's efforts, allowing it access to correspondence, data, ministry reports, and documents regarding the pollution.499 Joint on-site visits were held,°° while in the case of Haifa Chemicals the director of a ministry department served as one of the main witnesses for the plaintiffs.50' However, in these three case studies, Ministry staff support of alternative UED action was a result of government failure to act, due mostly to political considerations. In Safed, the municipality exerted pressure on the Ministry, obtaining permission to allow occupancy of the homes under dispute, and successfully delaying the initiation of legal proceedings.'s° In Haifa Chemicals, the lack of government enforcement against the industry was due to fear of the potential political and economic repercussions.503 The Ministry's legal proceedings against Or Akiba were delayed by the

mayor's successful campaign for reprieves.5°4 Nonetheless, since the pollution issues in all three case studies have either been solved or are on the way to being solved, it can be concluded that citizen suits are beneficial as a means of enforcement--even in cases such as Safed or Or Akiba where the suits only served as spurs for government enforcement. This conclusion then inevitably leads to the question: why have so few been filed?

IV. PUBLIC INDIFFERENCE TO WATER RESOURCES

A. Introduction

In the preceding chapters, I have argued that public participation in the form of citizen suits can address governmental institutional failure to enforce water pollution legislation: Israel's environmental laws provide the necessary legal basis,5°5 the country possesses a proactive, politically independent judiciary,56 and the severe pollution of the country's water

resources and the implications for Israel's present and future generations should serve as sufficient incentives.5 7 The enigma, then, is the minimal public outcry in light of the "impending water crisis"'508 that threatens Israel's most precious resource. It is reflected by the fact that only seven citizen suits for water pollution have been litigated during the country's fifty-year history.509 The enigma deepens with the realization that the IUED-the plaintiff in all but one of the suits-has litigated and won over forty court cases,510 while only five have dealt with water pollution issues.51 Public indifference to water pollution, as exemplified in the case of the Tsipori Stream pig farms, is the prevailing norm in Israel.

The concept of citizen suits as a positive element in water pollution enforcement is still unfamiliar to the dominant players in the enforcement mechanism. Government institutions regard the suits with trepidation, superfluous and open to misuse. They consider citizen plaintiffs

as interlopers encroaching on government turf, a threat to their power and authority.513 As noted above, the public hardly uses the suits.

As for the Tsipori Stream pig farms, not only did the government fail to act, but the public ignored the polluted stream, the media did not report on it, and no private lawsuits were filed against the polluters.514 If Israel's water resources are the property of the public held in trust by the State, what accounts for the lack of public response to the total breach of trust that is liable to profoundly affect the country's future?

Finding an answer to this question requires not only examining the policy of the relevant government institutions, but also deconstructing public behavior and attitudes toward natural resources in general and water in particular. The answers will raise a myriad of issues: deficiencies in the law, the history, and the culture of the country; political and economic influences on the society; and the legal status-or lack of legal status-of Israel's water resources.

B. Lack of Information and Transparency

In a 1996 survey of environmental organizations in Israel, difficul-

ties in accessing information relevant to specific environmental problems was reported as the third most common obstacle in realizing each organization's goals.515 Lack of information and transparency are not only a major obstacle to successful environmental litigation, but they can also be a cause for public indifference in general-people cannot react to facts of which they are not aware. The two are intertwined; a scarcity of information results in government nontransparency. Israel's extensive water pollution has historically remained unknown to the public, a consequence of the Water Commissioner's failure to use the plethora of administrative powers available under the Water Law.516 For example, the Water Commissioner has steadfastly refused to issue discharge permits, arguing that formally allowing polluters to discharge into water resources would result in legalization of an undesirable action-an argument that totally ignores the reality of sewage filled streams.517 By not issuing permits, the Water Commissioner has succeeded in preventing documentation of the condition of the country's water resources, as well as documentation of the details of the pollution and identity of the pollutersrelevant information for a citizen wishing to take action. Furthermore, the Commissioner has also avoided compliance with Section 20K to the Water Law, which mandates the publication of permit discharges as well 518 as reporting on them to the Knesset.

An analogous situation in the United States is the 1982 initiative by the Natural Resources Defense Council (NRDC) to increase enforcement against industries in non-compliance with water regulations, spurred on by the perceived reduction in enforcement by the EPA.519 The NRDC chose the Clean Water Act as the most suitable vehicle for filing lawsuits

against polluters, due to the relative ease in proving violations.52 ' The Clean Water Act requires a permit for discharges into a water resource in accordance with the National Pollutant Discharge Elimination System, a system set up in the framework of the act.52' These permits are convenient enforcement tools, since any discharge into a water body without a permit is a federal offense, as is a violation of the permit's conditions. Pursuant to the statute, companies are required to monitor their emissions and file reports that are open to the public.52 After collecting a large number of these reports filed by various industries, the NRDC sued those found to be in extreme violation, creating a momentum that led to a large number of citizen lawsuits against industries on the basis of violations of monitoring reports.523 The courts upheld these suits and rejected the defense argument that violation of these reports does not and cannot constitute a basis for violations of the Clean Water Act.524 The NRDC's initiative would not have been possible without the discharge permits issued by the EPA.525

In the case of Tsipori Stream pig farms, if the Water Commissioner had required the operators to obtain discharge permits instead of ignoring the discharges into the stream, information about the pollution would have become a public document. Because no documentation was generated on this issue, no written information was available to the public. It was thus constrained from acting against the violators. Similar to the refusal to issue discharge permits, the Water Commissioner has only partially used his authority to issue restoration orders under Section 20G to the Water Law.526 Consequently, pollution abatement failed again, thus avoiding documentation of water pollution.

The Haifa Chemicals case study is one of the few instances in which

the Water Commissioner issued a restoration order.527 Even though the order was never enforced,528 it still constitutes information upon which the public can assess the government's handling of polluters. In addition, it can serve as evidence if the public decides to undertake enforcement measures. In the case of Haifa Chemicals, the restoration order specified standards for sewage discharges to the stream that served later as the basis for the consent decree.529

The correlation between the need for government-held information and citizen litigation is also demonstrated in the other two case studies. While the Water Commissioner did not issue administrative restoration orders against any municipalities, including Safed and Or Akiba, the citizen suits in these two cases were based on information given to the IUED by another institution, the Environment Ministry.530 This is particularly evident in the Safed case study, in which the citizen suit was based upon reports, correspondence, and scientific data compiled by Ministry officials in charge of the case.53' In the Or Akiba case, the private criminal action was based on Ministry documents, primarily correspondence of the Ministry's Haifa office with the town's officials, as well as letters with other government agencies.

The technical-scientific nature of water pollution also affects public enforcement; these issues being complex and difficult to comprehend both for the public and the judiciary. In many instances, the suits require scientific data as evidence in proving the act of pollution. As a result, experts on issues of water pollution are frequently a necessary component of citizen suits, raising litigation costs and imposing an extra burden on underfunded environmental organizations and private individuals. For example, the UED invested a large sum of money in the Or Akiba citizen suit in order to prove the extent of the pollution in the Taninim Stream.533 These costs became a major consideration when the organization deliberated whether to continue the suit or allow the Environment Ministry to take it over.534

The issue of access to information should undergo a radical transformation now that the Freedom of Information Act has come into effect.535 Government agencies will be required to disclose information to the public and issue reports on their activities, thus expediting the information-gathering process necessary for litigation.536 Consequently, while issues of lack of information and transparency are significant as historical reasons for meager public enforcement, they will hopefully be less valid in the future as explanations for this phenomenon.

C. Lack of Legislative Incentives

Although Israel's citizen suits legislation is both comprehensive and extensive,537 deeper scrutiny reveals that it lacks certain provisions that could serve as incentives for citizen suits. For example, the Citizen Suits Law does not provide for attorney fees or for damages.538 The only remedy the law offers is injunctions to stop pollution, since this is its primary goal.539 The high cost of litigation, the lack of a provision guaranteeing attorney fees and other litigation expenses-or conversely, a provision preventing the imposition of these costs on the plaintiffs if they failserves as a constraint on potential plaintiffs who are not only apprehensive about financing the litigation, but also fear being held liable for the defendants' court expenses.54° In reality, the failure to guarantee the recovery of legal costs or other damages for injury incurred as a result of water pollution has worked as a disincentive for action.54' A citizen suit

under the Water Law would also not allow for court-awarded damagescriminal laws in Israel do not provide for damages to the injured party, and any fines imposed on polluters go into the State Treasury.

The Haifa Chemicals case study illustrates the use of alternative mechanisms to circumvent the lack of statutory provisions for monetary damages: the two sides to the lawsuit signed a consent decree under which the fishers who had joined the case received monetary reparations for damage incurred to their boats, while the IUED received legal CoStS.542 The defendants also set up a fund for monitoring the stream's water quality, and for educational projects on issues about the Kishon Stream.543

However, despite the lack of these provisions it should be noted that the most significant incentive that the legislation offers plaintiffs is in the form of a court order requiring the abatement or prevention of water pollution. This is for many plaintiffs a sufficient reward.5

D. Zionist Ideology: Development Versus Water

Theodor Herzl, the founder of modem Zionism, regarded development of the country's water resources as one of the pillars in the reestablishment of the Jewish state.545 In his book Altneuland, published in 1902, Herzl mapped out strategies for utilization of the northern water resources for irrigation of the rest of the country, while he envisioned a source of hydroelectric power in seawater flowing from the Mediterranean to the Dead Sea. This early vision of intense water development evolved out of the Zionist movement's recognition that attainment of its goal in rebuilding the Jewish homeland-which one hundred years ago was a rural backwater of the Ottoman empire, devoid of any economic development 47-was dependent on rapid development as a critical necessity in building homes and work-places, and creating employment.548

As described by Yishai, "[d]evelopment became a magic word which predominated over all other objectives," focusing on economic growth In this context, water was regarded by the and population expansion. ubiquitous Zionist ideology as the basis for achieving its objectives of a strong economy, massive development, and extensive and intensive agriculture. It was considered a critical component in the realization of the Zionist dream.550 This was particularly true in light of the elevated status awarded to agriculture in the national hierarchy, together with the goal of intensive irrigation of the Negev-the so-called "flowering of the desert."55' Environmental concerns generally and water quality in particular were secondary to these national ideals during Israel's early history.552 Water was viewed from the quantitative perspective, its qualitative aspect subjugated to the objective of pumping out enough to supply the country's needs.3 Prices for water were not determined by real costs of production and supply or its true value as a scarce good in an arid land, but by the rank of the consumer in the national hierarchy. Thus, farmers have long been a subsidized sector, receiving water for a very small amount of its actual cost of production.554

This is not to say that the country's political leaders were unaware

of the country's water scarcity.

For example, in the 1960s, Prime Minister Ben Gurion first espoused the idea of desalinization as the solution to the problem of scarcity.555 Alon Tal, in his forthcoming book on the history of the environment in Israel, notes the following quote from Prime Minister Ben

Gurion on the state of the country's water resources in 1956:

the groundwaters, springs, rivers and brooks of our country are limited and scanty. Even these have not been fully exploited: the water of the Jordan flows down to the Dead Sea, and the Yarkon water falls into the Mediterranean: a considerable proportion of the water of Lake Kinneret evaporates and even the rains, plentiful in the north and minimal in the south, flow wasted.... 556

There was no awareness of the ecological value of water, of the need of aquatic ecosystems for a steady supply of unpolluted water in order to maintain their biodiversity.7 Water was viewed from an anthropocentric perspective, its only value being supplying the needs of human society.558 Thus, water that flowed in a stream and eventually discharged into the sea "without fully benefiting the thirsty soil'559 was considered wasteful. In order to avoid this, Israel's first major water project was the Yarkon-Negev pipeline, which captured the headwaters of the Yarkon River at the Rosh Ha'ain Springs and transferred them to the Negev for agricultural irrigation. 56 The completion of this project in 1955, while realizing the Zionist dream of "making the desert bloom[]," signaled the end of the Yarkon River.56

Without the flow from the Rosh Ha'ain Springs, the Yarkon turned into a disposal site for the sewage of the municipalities and industries located in its vicinity, the loss of its headwaters transforming it from an unique and biodiversity-rich aquatic ecosystem into a foul-smelling, health-threatening sewage canal.562 The full significance of this transformation finally became apparent to the public in July 1997 during the Maccabiah Games, when a bridge constructed for the event collapsed into the stream, taking with it about thirty Australian athletes.56 ' The resulting fatalities and injuries could be traced primarily to the long-

standing pollution of the Yarkon.54

To have criticized the Negev-Yarkon pipeline at the time of its construction would have been unthinkable. It was considered a national project, directed toward the fulfillment of national Zionist goals which the vast majority of the country shared. Criticism of development which was considered essential to the country's well-being was considered unpatriotic and socially unacceptable, particularly in the light of the country's efforts in absorbing refugees from both post-war Europe and Arab countries, as well as its extremely sensitive security problems. Furthermore, the public itself, as the recipient of the services provided by the implementation of these priorities, was a staunch proponent of the Zionist emphasis on fast development that was ultimately proven to be ecologically and environmentally damaging.566

Linked to the Zionist emphasis on development was the goal to return the widely dispersed Jewish people to their homeland.567 Zionist ideology emphasized both saving Jews from Europe's urban ghettos and restoring the ancient land of Israel to its former biblical glory, a goal in which agriculture played a major part. Agriculture had become a national icon, viewed not only as a catalyst for economic growth,569 but as one for social change, as well. The Zionist dream of an "ingathering of exiles" envisioned the liberation of the returning people from the physical and mental shackles of European urban ghettos by transforming them into farmers.570 Thus, building a nation and reclaiming the land are intertwined ideals. The Zionist dream was to develop the "wilderness" that they discovered upon their arrival from Europe.571 Used to Europe's urban cities and pastoral countryside, the new immigrants considered what

was then Israel a barren wilderness that had to be tamed. The ideal was "to reclaim the land by a sheath of cement and gardens.572

After Israel was declared a state in 1948, unfettered at last from British constraints of the Mandate period, it was immediately confronted by the huge waves of immigration finally allowed to enter the country.573 As a homeland for the Jewish people, it absorbed Holocaust survivors and refugees from war-torn Europe, and then in the 1950s, a substantial immigration from North Africa and Asia.574 The first priority for the new state was to build homes and industries.5 The emphasis on swift and intense development to accommodate the massive influx in population resulted in the transformation of Israel's streams into sewage conduits. They became the most convenient and cost-efficient (zero cost) means For example, towns for disposal of industrial and municipal waste. such as Or Akiba and Safed, and industries such as Haifa Chemicals, discharged their waste into streams with the knowledge and sometimes the formal permission of the government.577 Sewage treatment was minimal, if it existed at all.578 The heritage of viewing water from an anthropocentric perspective-of human development vindicating the destruction of natural resources-has left its imprints on Israel today. Many municipalities and industries continue to discharge their sewage into streams, justifying the action on past government approval.579

The huge waves of immigration did not end in the 1950s. In the early 1990s, hundreds of thousands of former citizens of the collapsed Soviet Union entered the country, finally free from the communist regime's restraints on immigration.58 0 Again, the country had to build homes and create jobs.58 1 However, the difference between the frenzied development of the 1950s and that of the 1990s is that today the country is more aware of its environmental problems and the consequences of illplanned development.582 Thus, this last wave of development has been accompanied by commensurate environmental safeguards in the framework of the Planning and Building Law.

E. A Paternalistic, Social Welfare Form of Government

Linked to the previous issue is the relation between the state and the people. Attaining independent statehood was the overriding goal of the Zionist movement.584 The culmination of the hopes and aspirations of Zionists585 also served as partial compensation for the extreme suffering the Jewish people had undergone at the hands of the Nazis, including the loss of one third of its entire population. Achieving statehood had thus been a collective objective of the Jewish society living under the British mandate for Palestine.58 ' During the formative period of Israel (from 1948 on), the state, as the embodiment of Zionist ideology, was perceived by society as representing those ideals upon which the previous fifty years of settlement had been based.588 The state fortified this link between itself and its citizens by adopting a socialist form of government and a strong public sector. In addition, the government was made the dominant player in the economic arena and the major caregiver regarding social welfare.589 Placing the government as the focal point in Israeli society was considered a necessary requirement for the successful integration of the politically and culturally diverse immigrants that arrived in

Israel during its early years pursuant to the Zionist goal of "the ingathering of the exiles."590

However, the paternalistic form of government has resulted in a societal dependence on it for many services. Israeli society had fast become accustomed to a social welfare state in which the government assumed responsibility for its citizens' economic and social well-being, including environmental concerns.59 The Israeli propensity to litter, based on the belief that cleaning up public places is the government's job, is a strong example.592 Further, Israeli society regarded the responsibility for preventing and remedying instances of water pollution as being placed squarely on the government's shoulders. Given this as background, society could not conceive of taking on the government's traditional role of enforcer. Thus, cultural constraints helped prevent the development of grassroots organizations in general, including those with an environmental foCUS.

Modern Israeli society has undergone changes, signaled by the 1977 elections, in which the established Labor Party, symbol of the country's national-socialist ideology, lost to the Likud Party, which represented a different set of social and economic values and ideals.594 Based on these values and ideals, Yitzhak Galnoor noted that the outcome of the 1977 elections on Israeli society could induce reform in Israeli water policyparticularly in light of the Likud Party's market-based economic platform.595 However, he pointed out that this change might prove difficult to accomplish, due to the continuing power of the Labor Party-affiliated agricultural sector and the opposition from multiple groups to changes in water subsidies.596

On one hand, Galnoor has proven prophetic. Twenty years after the elections, the agricultural lobby is still strong and water is still subsidized. However, water subsidies have decreased substantially, and agriculture no longer enjoys its historically pivotal status in Israeli society.597 Further, the gradual reduction of Israeli society's dependence on gov-

ernment should lead to an increase in grass roots activities that will raise the level of public participation in enforcement. As will be seen in the following discussion, this has not yet occurred.

F. Lack of Will of Environmental Organizations

The history of Israel's environmental organizations is in part a function of the two previous issues. The formation of the environmental organizations is a reflection both of the ubiquitous Zionist ideology of the country's early history, which defined intense development as a national goal, and of the formerly prevailing patriarchal relationship between the government and its citizenry.

The development of the environmental organizations was a long and slow process. In 1978, Yitzhak Galnoor observed that "no environmental pressure groups are counted among the interests represented in the water system.,598 In 1979, there were only four organizations who considered themselves as established in order to engage in environmental activities.59 Israeli political scientist Yael Yishai argues that these early organizations were "elitist" groups when compared to the grass roots organizations of western countries, because they were established either by members of the Knesset interested in environmental issues or by high officials in government institutions.6°° They perceived themselves as part of the establishment, believing that their goals could be better achieved by working with the government instead of opposing it.6°1 Besides ideological explanations, their pro-establishment stance was a pragmatic reflection of their precarious financial state. Since the government constituted their major source of funding, any anti-government initiatives were effectively quelled.

The Society for the Protection of Nature in Israel (SPNI) exemplifies this pattern.6 03 The oldest and largest of Israel's environmental organizations, it was originally founded over forty years ago by scientists and nature enthusiasts to generate an organized public response to the draining of the Hula wetlands for reclamation of agricultural land.6° The ecologists demanded that the government preserve part of the wetlands as a nature reserve.605 Since then, SPNI's major work has been in the area of public education, carried out by a network of field schools and hostels, focusing particularly on encouraging hiking as a popular sport and as a means of becoming familiar with Israel's natural environment.6°6

Until 1987, the SPNI concentrated exclusively in the area of education, refraining from litigation against the government primarily because of its hesitancy to oppose the government on issues conflicting with the realization of national Zionist goals-even when they collided with the conservation of nature.6 7 The SPNI regarded itself as part of the government establishment, and as such aligned itself with government policy.6°8 Among the organization's founders were highly-placed government officials and former army officers who regarded the SPNI as a vehicle for integrating the government's Zionist ideals with nature conservation. They did not in anyway view it as an opponent of the government.609

Political scientist Morag-Levine defines the SPNI as a "corporatist, insider organization" that was thus self-constrained from taking legal action against other insiders.6 Its reluctance to use litigation as a means of fulfilling the organization's goals could also be interpreted from an

agency capture perspective: the SPNI, as the captive agency, is dependent on the government, its captor, for both financing and recognition of its legitimacy.611 Generally, this aversion to litigation against the government should be viewed from the perspective of Israeli culture of the 1950s and 1960s, when Zionist-socialist ideology was still an extremely pervasive unifying factor amongst society.612 At that time, society frowned generally on those who dared challenge government policy, which was then based on that ideology.613

Despite this tame beginning, the SPNI became involved in a politically charged environmental issue concerning the Voice of America transmitter in the Negev in 1987.614 The VOA transmitter was considered a threat to migrating birds. The SPNI's successful petition against the government challenging the construction of the transmitter was followed and a peby others: e.g., a petition for restoration of the Hula wetlands tition challenging the government's failure to stop the encroachment of Druze villages into nature reserves. The legal tool employed by the SPNI in litigation has been the petition to the High Court of Justice, challenging the government for what it perceives as illegal actions endangering the environment.617

This change in strategy was due to the societal changes that facilitated the slowly increasing awareness of the Israeli public to environmental issues.618 Ideologically, Israel evolved from a socialist-orientated society based on Zionist ideas to a society that started to question historical and cultural icons-including, for example, the heritage of Zionist ideals, the place of agriculture in the economy, and the country's relations with its Arab minority.619 Economically, the country started enjoying a higher standard of living, 62 creating the resources necessary for natotal tional environmental awareness. The Israeli public's almost

ignorance of environmental issues during the 1970s and early 1980s-a period during which other countries, particularly the U.S., were fast developing environmental agendas and policy-has been attributed to several factors. The most prevalent explanation is that most Israelis, resembling populations of other developing countries, were too immersed in satisfying their basic social, economic, and oft-trumped national security needs to find the resources to develop environmental awareness.

Until the creation of the Israel Union for Environmental Defense in 1990, the SPNI was the only public environmental organization using litigation as a major tool for environmental protection.622 However, while the SPNI does not focus on litigation, which it uses both infrequently and the IUED's exclusively for nature conservation and land use issues, raison d'etre is environmental litigation.624 The UED is at present the only organization that consistently uses citizen suits as an enforcement Its emergence has had an unparalleled tool to combat water pollution. effect on environmental issues; they have acquired new dimensions as a result of the focus on litigation. As demonstrated by the case studies, the Israeli experience of citizen suits in water pollution enforcement is largely limited to the IUED's work.

In comparison to the years 1948-1990, the past decade has been a fertile period for the growth of environmental organizations. Today there are close to one hundred national and local organizations engaging in ena sign of a more environmentally aware public vironmental activities,

that should be more open to filing citizen suits.627 However, the 1995 survey of environmental organizations concluded that "there is no shortage of environmental organizations and public interest campaigns in Israel. Notwithstanding their sincerity and the quality of their work, the deterioration in Israel's air, water and landscape belies the adequacy of existing efforts.628

The survey attributes the ineffectiveness of these organizations to several factors, including a lack of funding and a lack of legal incentives, that lead to dependency on government funding and resulting in conflicts of interest.629 Further, there are problems of staff professionalism.630 "Inadequate utilization of new political and legal opportunities" is also considered a factor,631 for the survey revealed that only two organizations undertook litigation "frequently," twenty-four, "sometimes," and twelve, "rarely.632 Thus, lack of will by Israel's environmental organizations to litigate still exists, despite the large increase in their number. Needless to say, public participation in water pollution enforcement cannot happen without a substantial amount of environmental organizations willing to litigate.

G. What Water? Scarcity of Water Resources

Public indifference to water is fundamentally an issue of water scarcity.633 Two thirds of Israel's land area is arid. Precipitation occurs only

during the winter months.634 Of its surface water resources, the majority are located in the north, while the south is totally lacking in surface water except during seasonal heavy winter rains.635 As a result of the scarcity, the Israeli public is not accustomed to water as part of the country's natural landscape. Of the surface resources, most of Israel's streams are not 637 perennial and are therefore lacking instream flow for most of the year.

This returns us to the pollution issue, because the majority of these streams are carriers for municipal and industrial sewage.638 The Tsipori Stream transported sewage from the pig farms in the direction of the sea;639 the Kishon Stream has served as an industrial sewage canal for the Haifa Chemicals plant and other petro-chemical plants located along its banks;64° the streams flowing from Safed into the Sea of Galilee have carried the city's sewage since the early 1970s, when the cess pits that served individual homes were eliminated;641 the Taninim Stream carried Or Akiba's sewage to the sea.642 The majority of the public today regards polluted streams as part of the natural vista, perhaps part of the price of living in a country that had to undergo intensive, accelerated development in order to cope with massive influxes of immigrants.6 Although Israelis who grew up in the 1950s still remember being able to swim in these streams,644 the majority of the public views the polluted streams as

simply part of the status quo. The current conditions of the streams does not create reactions of shock and anger.

Due to the scarcity of water resources, Israel has not developed a culture of freshwater recreation.645 The coastal streams, where the majority of the population is located, are too polluted for swimming, fishing or boating.646 Although a certain amount of these sports are allowed in the less-polluted northern streams, they have not achieved the same level of popularity as other sports.647

If the public lack of concern for polluted streams stems from its being accustomed to them, its lack of concern for polluted groundwater stems from the perspective that groundwater, being indiscernible to the public, is beneath notice. Although groundwater pollution is a much more serious issue than the polluted streams, since the groundwater serves as the country's major source of drinking water648 it is not a readily visible occurrence. Thus, the pollution process is not a phenomenon with which the public can identify. This would explain why all three case studies presented here dealt with stream pollution and not underground pollution, as do the remaining three out of four citizen suits that have been filed regarding water pollution.649

Not a part of the natural landscape, not used for recreation, polluted

navigable waterways, with the primary goal being promotion of national commerce and economic growth. While in most countries public trust is a common law doctrine, in Israel the public trust doctrine has been legislated into Section 1 of the Water Law.654 As explained below, the improper implementation of the public trust doctrine, when combined with the absence of private ownership of water resources, could perhaps serve as an explanation for Israel's extensive water pollution.

The centralization and regulation of Israel's water resources was intended to protect and control the country's water resources. However, the Israeli institutional structure, in failing to properly implement the policy, has breached the public trust, creating a "tragedy of the commons" situation, in which access and use of water resources at no cost to the user has resulted in degradation of the resource. The practice of sewage disposal in Israel is an example. The large growth in Israel's population during the country's early years of statehood655 resulted in the need to find means to dispose of the commensurate amounts of sewage. The cheapest and most accessible means were discharging it into the closest stream. As the population kept on growing, so did the amount of sewage and pollution.

The pig farm owners along the Tsipori Stream used the stream as a commonly-held sewage canal. Totally accessible and free of any cost to the farm owners, the stream must have played a part in the owners' decision regarding the farms' location. Being able to discharge the waste into the stream decreased their cost of production. Since the water downstream also did not belong to a private individual, no one demanded that the dischargers cover the costs of the resulting externalities. Israel's water belongs to the general public, and consequently there are few incentives for public or private enforcement against its polluters. However, this comparison of the state of Israel's water resources to a "tragedy of the commons" requires a certain modification from the paradigm constructed by Garret Hardin in his 1968 article.656 While Hardin referred to

a "tragedy of the commons" as one in which unconstrained use and access caused depletion of the resource-for example, overgrazing of the commons, or, overfishing of the fisheries-use of Israel's streams did not cause depletion of the streams as a sewage canal. Once streams are turned into sewage canals, larger quantities of sewage would not affect its capabilities to absorb more (up to the point where the quantities were so large that they caused flooding). Nonetheless, Hardin's theory does serve as a useful paradigm for understanding the public's indifference to its water resources.657

The correlation between public ownership of Israel's water resources and the water's present degradation has been noted by Richard Laster in his dissertation on water pollution in Israel:658

law

ironies of Israel water

is that in its One of the supreme to protect Israel's water resources by abrogating determination riparian rights, the Knesset may have succeeded in doing just the opposite.... Under Israeli water law, as codified and interpreted by the Supreme Court, no one has the right to receive water of a certain quality from a certain source. If the source of one's supply is polluted, he has the right to request an alternate source of supply. He has no right to demand that the pollution be stopped due to the fact that "his" source of water is becoming polluted because he has no source of water that is "his." The lack of a class of riparians may have been a significant factor allowing Israel's streams and wadis to reach their state of pollution.659

In a complaint to the Health Ministry from 1994 addressing the pollution caused by the pig farms, a group of farmers who used water from the Tsipori Stream for irrigation protested the confiscation and destruction of their crops following the discovery of high levels of contaminants in the produce.66 0 They complained that instead of taking enforcement measures against the owners of the pig farms, the Health Ministry preferred to simply deal with the symptoms of the problem by destroying

the farmers' crops. stream:

hi

In their letter, the farmers asserted their bond to the

We have continuously worked our lands since the British Mandate. Then the water was clean and also served as drinking water for all the inhabitants living along the stream ... we are sorry to inform you that we will take legal action in order to realize our rights to the streamwater.

In October 1994, a lawyer representing the farmers wrote to the Environment Ministry's northern office demanding Ministry action and threatening legal action against the pig farms' owners and against the Ministry for the confiscation and destruction of the contaminated The threatened action did not materialize because the farmers crops. were loath to pay litigation costs, and, apparently, had received an alternative allocation of water.664 The farmers were mistaken in their complaint, thinking that they had rights to the streamwater. However, they were entitled to an alternative source of water; Section 4 to the Water Law establishes that property rights to land do not confer on the owner rights to water located on the land, underneath it, or flowing through it, nor is a water consumer entitled to receive water from a specific water resource, but Section 3 to the Water Law guarantees a general right to receive water, and Section 6 links the right to water to a specific purpose, such as agriculture.665 Thus, a possible explanation for why the farmers did not sue for an injunction or damages from the pig farms is because they were entitled to receive an alternative allocation of water from another source. If instead the farmers had held property rights to water that were confined to the Tsipori Stream with no option of receiving an alternative allocation, they would have had no choice but to sue both for pollution abatement and injury incurred. Furthermore, it could be argued that property rights to the stream's water would have created an incentive for the farmers to maintain its quality and manage it in a sustainable manner as a safekeeping of their investment. Consequently, from the perspective of protection of property rights and investments, and faced with the government failure to take action, the farmers would have had no choice but to litigate.666

Applying the tragedy of the commons model to Israel's water resources can also explain the reasoning behind those private law suits that have been filed against polluters of water resources. For example, several of the plaintiffs in the Haifa Chemicals lawsuit were six fishers who had 667 traditionally anchored their boats at the mouth of the Kishon Stream. They claimed injury to their source of livelihood since Haifa Chemical's sewage had corroded their boats, making them less fit for use.668 Consequently, although the fishers had no property rights to the water in the stream, the fact that their livelihood was threatened by the stream's waters was an incentive to join the lawsuit as plaintiffs. As users in common of the publicly-held water resources, the fishers felt entitled to exercise their rights to a certain minimum level of quality for the natural resource. Similarly, in Salzman v. The State Attorney General,669 a plaintiff sued a city located upstream for polluting the Polag Stream, since the pollution affected his property rights. The plaintiff's home was situated on the coast close to the mouth of the stream, at the point where it discharges into the sea.670 The pollution interfered with his enjoyment of the local beach-closed by the Health Ministry as a health hazard-and threatened the re-sale value of his home.

The Safed case illustrates another category of stream beneficiary who is liable to suffer damage from its pollution-the hiker.671 Safed's sewage, which flows in the direction of the Sea of Galilee, passes 672 through a declared nature reserve used by the SPNI for nature hikes. The Environment Ministry became aware of the severity of the pollution created by the city's sewage through complaints from the SPNI, itself responding to reports from hikers on the pollution's effects on the Amud It was a recreational user of Stream and the surrounding environment. the stream who found it worthwhile to complain about the stream's pollution, demonstrating that for the public to respond to the degraded state of its water resources, a use linked to the water resource is usually necessary.

These case studies demonstrate the link between self-maximization of private interests and protection of water resources.674 Injury, or the threat of injury, to self-interests creates an incentive for individuals to

undertake enforcement action to protect those interests. However, by creating a public property right in water resources, there are few opportunities in Israel for self-maximization through the use of water, resulting The tragedy of Israel's water resources, as in its present degradation. based in the model of a tragedy of the commons, is a result of a lack of private property rights to water.

V. CONCLUSION

The decision to write this paper was motivated by the steadily worsening condition of Israel's water resources. Natural conditions of scarcity, exacerbated by a high salinity level as a result of over-pumping, a plethora of pollutants from agriculture, industry, and municipalities, a high immigration rate with a naturally fast growing population, demands for a higher standard of living, water subsidization, and peace agreements that entail water transfers to its neighbors are all causes of "the impending water crisis" that Israel's water experts have been prophesizing for years.676 The sources used in this paper-Laster, Galnoor, Gouldman, the State Ombudswoman, Zaslavski, and Tal-point a blaming finger at the government institutions for their failure to protect Israel's water. In particular, they look at the Water Commissioner, who never succeeded in developing a quality paradigm for water management from the already existing quantity paradigm. Thus, water has been historically managed for quantity alone.

Although institutional change has been recognized by many authorities as a prerequisite for solving Israel's water problems,677 the various proposals put forth on the subject have been ignored.678 Thus, the natural government monopoly for institutional restructuring has in effect blocked any changes to the status quo regarding water management. With the purpose of finding ways around this governmental quagmire, this paper proposes public participation in enforcement as an alternative solution that does not involve political decisions.

Given the ongoing destruction of the country's water resources, this paper asks, why has there not been a public outcry against the government's long-term mismanagement? Why hasn't the citizen suit emerged as an alternative enforcement mechanism in the face of government's lack of will? The issues addressed above attempt to grapple with this

question-the lack of public participation can be traced to the lack of access to government-held information, the lack of incentives in the legislation, or historical and cultural factors that affect the way Israeli society regards its water resources. Furthermore, a "tragedy of the commons" paradigm also contributes to understanding the lack of public outrage; since the water belongs to everyone, it ends up belonging to no one.

Where do we go from here? Do the factors governing the behavior of the Israeli public bar any hope for change? There are signs of a public awakening to the necessity of action. For the first time in Israeli history, a "green" party ran in the national elections, proof that at least some segments of the Israeli public view environmental issues as nationally significant. These private citizens have become motivated and capable of organizing politically to address environmental issues.679 Further evidence of change in society's attitude toward the environment is found in the evolutionary character of the issues discussed in the previous chapter. For example, with the enactment of the Freedom of Information Act, the public has finally acquired the right of access to government-held information. Thus, the inner workings of government should become more transparent. In addition, the Israeli public's hesitancy to question national icons is slowly eroding. As the country ages and the Zionist emphasis on rapid development evolves from what was once a cutting-edge issue to a chapter in the country's history, there could develop a commensurate amount of public willingness to question the correctness of government policy that sacrificed water quality to quick development. This has already been demonstrated by the lawsuits examined in the case studies, which, although still miniscule in number, did not exist at all less than a decade ago.

Further evidence is found in the wave of development that took place in the early 1990s to accommodate the immigrants arriving in Israel following the break up of the Soviet Union. As opposed to past waves of development, this time around the government was restrained from employing the injurious development methods that had been the source of the country's environmental degradation in previous decades. In response to proposals for new legislation designed to speed up the planning process, environmental organizations, with the support of the

Environment Ministry, succeeded in adding provisions that made approval of building plans conditional to the construction of commensurate sewage treatment facilities.68 0 This may signal a beginning of the end of the use of Israel's streams for sewage disposal.

Changes have also taken place in the country's environmental organizations. In contrast to the four environmental organizations existing in Israel in 1979, there are now close to one hundred, a sign of increasing public awareness.61 Thus, while many of the factors that this paper has attributed to the phenomenon of public indifference are useful in understanding it historically, they may gradually become less pertinent. What remains relevant is the lack of legislative incentives tied to changes in society, because the political will needed for legislative reform will have to come from an aware and organized public.

Thus, changes are occurring that bode well for increased and more effective public involvement in environmental issues. The case studies have demonstrated that citizen suits can be a successful means of goading the government into enforcing the law against polluters. The citizen suits filed against Haifa Chemicals, Safed, and Or Akiba achieved their objectives. Even the Or Akiba citizen suit, which was technically a defeat for the IJED, was beneficial in that it demonstrated to the Environment Ministry that failure to enforce the law against polluters would result in a non-government institution doing it instead. This case too has had a successful ending. The town has finally hooked up to the sewage treatment facility in Hadera.682 Common to all three case studies is the substantial amount of cooperation between the IUED and the Environment Ministry, especially relevant in the context of the evidence-seeking process necessary for building the suit.

However, a caveat must be issued: it would of course be disadvantageous for environmental organizations to design enforcement policies based solely on government cooperation, due to the political nature of

Enforcement is more than punishment or deterrence. By undertaking enforcement procedures, environmental organizations would not only utilize the democratic process to influence water policy, but in the face of government failure, would also be using the process to create their own policy. Through litigation, the court becomes a public forum, which may be used to reveal the state of Israel's deteriorated water resources and the failure of the government to protect them. Enforcement by way of the courts guarantees government transparency and disclosure of facts, and thus has an intrinsic value that is not related to either punishment or deterrence. Even if the plaintiff does not prevail in a specific case, the enforcement action still accomplishes one if its purposes, by getting the message to the public. The bottom line is to prevent catastrophes like the Tsipori Stream pig farms, and to encourage public action when the government demonstrates a lack of the will to enforce pollution prevention laws, jeopardizing precious Israeli natural resources.**

--- FOOTNOTES ---

Part of the Environmental Law Commons

"When God created the first man, He took him aside and warned him about all the trees of the Garden of Eden, saying, see My works, how beautiful and perfect they are, and all I created-I created for you. Beware lest you spoil and destroy My world, for if you will spoil it, there is no one to repair it after you. "I

On a typically hot summer day in 1990, a group of officials from Israel's fledgling Environment Ministry participated in a field trip to the Tsipori Stream near the municipalities of Reina and Nazareth, in north-

Rachelle Adam is an attorney working in the legal department of Israel's Environ-

ment Ministry. Besides her major concentration in the area of water pollution prevention, she serves as legal coordinator for international conventions and agreements concerning conservation of natural resources and protection of biological diversity, particularly wildlife. She was appointed as Israel's Focal Point for the Convention on Biological Diversity and the Convention on Wetlands of International Importance (Ramsar Convention), serves on Israel's steering committee for the World Heritage Convention, and was appointed as an expert on environmental law to the technical committee of the Agreement for the Conservation of AfricanEurasian Migratory Waterbirds (AEWA). She is also a member of the interministerial focal group on biodiversity in the framework of the strategic plan for sustainable development. She has a B.A. and a M.A. degree, magna cum laude, in Judaic Studies from Brandeis University, an LL.B. degree from the Faculty of Law, Hebrew University, Jerusalem, Israel, and a J.S.M. degree from Stanford University Law School for which the following article was written, while a Fellow in the Stanford Program for International Legal Studies. Commentary on the Book of Ecclesiastes: Midrash Rabbah, 7:28, as quoted in SHOSHANA GABBAY, THE ENVIRONMENT IN ISRAEL 369 (State of Israel, Ministry of the Environment, 1998).

2.

3.

4.

5.

6.

The author participated in this fact-finding field trip as legal advisor for the Ministry's Department of Water and Streams. The following account is based on her personal experience. For general information on the pollution of Israel's streams and other water resources, see GABBAY, supra note 1, at 17-56; SHOSHANNA GABAI, CONSERVATION AND SUSTAINABLE USE OF THE BIOLOGICAL DIVERSITY IN ISRAEL, REPORT OF THE STATE OF ISRAEL TO THE CONVENTION ON BIODIVERSITY 61-68 (State of Israel, Ministry of the Environment, 1997); M. DENNIS GOULDMAN, MANAGEMENT OF WATER SYSTEMS IN ISRAEL (1996) (Hebrew); Richard Laster, The Legal Framework for the Prevention and Control of Water Pollution in Israel (1976) (unpublished Ph.D. dissertation, Hebrew University, Jerusalem) (on file with the Faculty of Law library, Hebrew University)[hereinafter Laster Dissertation]; Dan Zaslavski, Sustainable Development of the Water and Agricultural Sector (1998) (unpublished manuscript on file with author) (Hebrew). In 1988, 14 pig farms were operating in this area. See LEN ARONSON & RON FRUMKIN, THE TSIPORI STREAM: AN ECOLOGICAL-ENVIRONMENTAL SURVEY 43 (The Administration for the Rehabilitation of Israel's Streams, 1995) (Hebrew); see also Moni Ben Yakir, Pig Corpses Float in the Tsipori Stream, YEDIOT B'GALLL, January 1, 1993. Today none remain, a result of the Environment Ministry's enforcement measures. See infra note 197. In this paper the pig farms will be referred to by the interchangeable terms "Reina-Nazareth pig farms" or "Tsipori Stream pig farms." Each pig farm had a separate containing pond, with individual outlets to the stream. See ARONSON & FRUMKIN, supra note 4, at 8, 43; see also Shenhar Aff., § 2, Cr.C. (Nz.) 120/96, Bargut v. The State of Israel [hereinafter Shenhar Aff.]. In addition to the overflow, the ponds were not sealed and consequently the sewage leached into the stream from underground. See id. Based on an expert opinion introduced by the government as evidence. See Cr.C.

(Nz.) 3783/95, The State of Israel v. Bargut. The names of the springs are the Tsipori Springs, the Yiftachel Springs, and the Yivka'a Springs. The name of the drinking well is Alonei Aba. See ARONSON & FRUMKIN, supra note 4, at 34, 43. For general information on the ecological state of the Tsipori Stream, see id. See id. at 34. An English alliteration of their names is as follows: Parushit Meshalshelet; Siah Avraham; Madad Zohel; Dohan Zohel. See id. at 34, 38.

7.

8.

9.

10. Based on the author's personal experience.

11.

See H.C. 6810/96, Bargut v. The City of Nazareth [hereinafter High Court Petition]. However, anecdotal verbal communications trace their existence to the 1960s. Due to illegal and unlicensed construction and use, ascertaining a definite start-up date is difficult.

12.

The Business Licensing Law, 1968, S.H. 204, § 4. The farms were eventually

closed down by the Environment Ministry's authority pursuant to this law. See infra note 197.

13.

See Bargut Aff., § 7, Cr.C. (Nz.) 120/96, Bargut v. the State of Israel [hereinafter

Bargut Aff.].

14.

15.

See The Planning and Building Law, 1968, S.H. 307, § 156.

See The Prohibition of Pig Raising Law, 1963, S.H. 90 (Addendum).

16. The Drainage and Flood Protection Law, 1957, S.H. 4, § 5.

17.

See The Health Ordinance, 1940, P.G. 1065, §§ 52-56 (Supp. I at 239).

18.

19.

"A person shall refrain from any act which directly or indirectly causes, or may cause, immediate or subsequent water pollution; and it shall be immaterial whether or not the water resource was polluted before the act. A person shall not throw, or cause to flow, into or near a water resource any liquid, solid, or gaseous substance or deposit any such substance in or near it." The Water Law, 1959, S.H 288, § 20B. This would have allowed the pig farms to remain on site, which theoretically would have required the pig farm owners to comply with those laws mentioned in supra notes 14-18. The author uses the term "theoretically" because, in actuality, these laws were not enforced against water polluters. See infra discussion in Part II. This statement is made while assuming that the Prohibition of Pig Raising Law, supra note 15, which enjoined their presence in the town of Reina, also continued to be "law on the books."

20. This was a controversial stand. One owner denied the Ministry's right to shut down his pig raising operations, claiming the most it could do was to require the installation of sewage treatment facilities. However, throughout the many legal proceedings that evolved concerning the pig farms, the Ministry did not change its original position that only removal could guarantee the restoration of the stream. See ShenharAff., supra note 5, § 14; High Court Petition, supra note 11, §§ 55-57; Bargut Aff., supra note 13, §§ 23 & 25.

21. 22.

See supra text accompanying notes 14-18. It should be noted that Chapter 5 of the Public Health Ordinance, which deals with environmental nuisances, is also under the Environment Ministry's authority. However, due to its complicated procedural provisions it is not considered an effective enforcement tool.

23. The amendment was completed in 1991. See infra text to accompanying notes 264269. Although the Ministry originally intended to use the Water Law to shut down the pig farms, in actuality the provision for court orders that was amended to the law did not prove to be an effective tool for shutting down the polluting businesses in this particular case. A 1993 Ministry request for an injunction to stop pollution from the pig farms resulted in a laconic court decision that ordered the respondents to take all necessary measures in order to stop polluting, without determining a time schedule. See Cr.C. (Nz.) 2959/93, The State of Israel v. Bargut. The pig farms were eventually shut down by both administrative orders and court injunctions, pursuant to the Business Licensing Law, supra note 14, after these powers were transferred from the Health Ministry to the Environment Ministry in 1994. For a review of the Ministry's subsequent actions concerning the pig farms, see infra note 197.

25.

24. This did not mean that the Environment Ministry refrained from taking any action against the pig farm operators until the legislative base was completed. The Ministry was continually issuing written warnings to the pig farms' operators requiring abatement of pollution. On-site visits were frequent during which the pig farms operators were repeatedly warned as to the legal implications of the sewage discharges to the stream. For a general description of ministry action prior to litigation, see ARONSON & FRUMKIN, supra note 4, at 43, and High Court Petition, supra note 11. In addition, the Ministry attempted unsuccessfully to persuade other government ministries to act against the pig farms. See infra text accompanying notes 166-168. See GABBAY, supra note 1, at 17; see also STATE OF ISRAEL, THE WATER COMMISSION: THE WATER LAWS OF ISRAEL 1, at preface (M. Virshuvski ed., circa 1964)[hereinafter THE WATER COMMISSION]. See generally WATER QUALITY MANAGEMENT UNDER CONDITIONS OF SCARCITY: ISRAEL AS A CASE STUDY 17, 288, (Hillel I. Shuval ed., 1980)[hereinafter WATER QUALITY 290-293, 296-304 MANAGEMENT]; Zaslavski, supra note 3, at 4, 10. See Zaslavski, supra note 3, at 5, 13-16, 20-21; WATER QUALITY MANAGEMENT, supra note 25, at 12-14, 93-94, 171-176. For general information on water pollutants see GABBAY, supra note 1, at 17-54; on solid wastes, see id. at 88-96; on hazardous wastes, see id. at 128-147; on water pollution deriving from agriculture, see id. at 157-168. See also Zaslavski, supra note 3, at 32-33 ("For decades sewage has been discharged into streams as well as leaching down into groundwater. All the country's landfills are leaking polluting

26.

27.

and saline leachates that percolate down into the aquifers. Chlorinization of the water creates carcinogens, already found in water in worrisome quantities." Id.). See WATER QUALITY MANAGEMENT, supra note 25, at 11-1 3. See infra text accompanying notes 545-579. See ALON TAL, WASTED PROMISE-AN ENVIRONMENTAL HISTORY OF ISRAEL, ch. 6, at 5 (forthcoming Feb. 2000)(manuscript on file with author)[hereinafter TAL]. See id. See Aaron Wiener, Levels of Control in Water Quality Under Conditions of Scarcity, in WATER QUALITY MANAGEMENT, supra note 25, at 18; WATER QUALITY

MANAGEMENT, supra note 25, at 315. The present population of Israel is approximately 5.5 million. By the year 2020, it is expected to reach 8 million. See Zaslavski, supra note 3, at 4.

28. 29.

30.

31. 32.

33.

34. Archeologists estimate that during the Second Temple Period (approximately two thousand years ago) the average annual consumption of water was seven cubic meters per person. In Israel today the annual municipal consumption per person is 100 cubic meters per year. It is expected to go up to 120 cubic meters annually by the year 2020. See id. at 4, 10; see also Jehoshua Schwarz, Management of Israel's Water Resources, in WATER AND PEACE IN THE MIDDLE EAST 69, 71 (Jad Isaac & Hillel Shuval eds., 1992). For general information on stream pollution as a result of sewage disposal, see

35.

At the time of writing this book, Israel is, essentially, utilizing 100% of its replenishable water resources ... its thriving agricultural economy, coupled with its rapid industrial development and population growth, has been dependent on the maximal utilization of the available water supplies. In the process the threat of serious water quality has come to dominate the scene to such an extent that today the long term continued utility of much of the country's water resources are at risk. Israel is on the verge of a grave water crisis. By the year 2000, with an estimated population of 5,600,000, there will be insufficient water to meet the annual requirements from natural sources. In addition, if groundwater pollution by natural salts and nitrates continues unabated, some 80% of the wells in the coastal aquifer will have to be abandoned for municipal use and their utility for agriculture will be severely diminished.... 40

36.

ThE, supra note 30, ch. 6, at 29, GOULDMAN, supra note 3, at 14, and Laster Dissertation, supra note 3, at 205, 240. "It is estimated that if nitrate levels follow current trends, increasing at the rate of 1.3 ppm per year, a major portion of the water supply wells of the coastal aquifer will by the 2000 pass the maximum allowable drinking water standard...." Abraham Mercado, Some Quality Aspects of Groundwater Management, in WATER QUALITY MANAGEMENT, supra note 25,at 39; see also Laster Dissertation, supra note 3, at 4. See Laster Dissertation, supra note 3, at 215. See id. See id. at 1-2.

37. 38. 39. 40. WATER QUALITY MANAGEMENT, supra note 25, at xi.

[T]he intensive exploitation of the coastal aquifer, the importation of water of higher salinity from other aquifers and from the Jordan river for the irrigation of the areas overlying the coastal aquifer, and the pollution through sewage and wastewater are liable to result in pollution levels which may ultimately exceed most use tolerances, unless countered by appropriate preventive and remedial measures.41

The report was harshly critical of government water policy, noting that the abuse and exploitation of Israel's water resources has been a continu-

ous process extending over a period of decades. The report stated:

The irresponsible management of the water sector over the past twenty-five years has destroyed Israel's future water reserves and has caused extreme damage to their quality.... Today there is a real danger of lack of water of the required quantity and quality even in the short run. There is no conservation of water resources for future generations.... Water quality is constantly decreasing. Part of the damage is possibly irreversible. Restoration of reversible damage will be drawn out, expensive and difficult....

scathing criticism of the mismanagement of Israel's water resources.

41. Wiener, supra note 32, p.14. 42.

For a description of the role of the State Comptroller in the Israeli government, see MARVER BERNSTEIN, THE POLITICS OF ISRAEL ch. 11 (1957): "One of the most interesting features of politics and administration of governmental affairs during the first decade of statehood has been the Office of the State Comptroller. Independent of the Government and responsible to the Knesset and public opinion, the State Comptroller has become the conscience of the public and its chief critic and analyst of public administration." Id. at 266. "The management of the water sector is a tangible example of shortsightedness or of an exaggerated focus on present needs, often from impertinent considerations. Ignoring the long-term effects and failure to take necessary action in time, will without doubt lead to serious difficulties and to mortgaging the future without any justification. Ignoring a crisis that is waiting in the corner, despite the warnings of experts and the State Comptroller, is a phenomenon that must under no terms be accepted." THE STATE COMPTROL.ER REPORT ON THE MANAGEMENT OF THE WATER SECTOR IN ISRAEL 53 (1990) (Hebrew)[hereinafter STATE COMPTROLLER]. See infra text accompanying notes 120-127. STATE COMPTROLLER, supra note 43, at 53. See Zaslavski, supra note 3.

43.

44.

45. 46.

47. 48. 49. 50.

51. 52.

See id. at 4. See id. at 13. See supra notes 14-18 and accompanying text. Five cases filed by the Health Ministry in the 1960s are a rare exception. See infra text accompanying notes 73-75. Laster Dissertation, supra note 3, at 328. In addition to arguing that Israel's water pollution is a result of the Water Commissioner not enforcing his authority to prevent pollution, Laster claimed that the institutional structure is also at fault. He claims that the Water Commissioner does not have total authority over long term water planning, supply, and distribution, which are controlled by two government corporations. See id. at 328-330; see also GOULDMAN, supra note 3, at 40 (arguing that the multiple number of water institutions (and not only those institutions empowered to address issues of water pollu-

59. Although this paper deals solely with the domestic aspects of Israel's water pollution problems, and particularly in light of the correlation between water quantity and quality, mention should be made of the peace agreements signed with Jordan and Palestinians requiring Israel to transfer close to 150 million cubic meters of water annually. See Zaslavski, supra note 3, at 4, 48. See generally WATER AND PEACE IN THE MIDDLE EAST, supra note 37; Michelle Sachs, What Money Can Buy: Conceptualizing a Palestinian-Israeli Water Market (unpublished paper on file with author) (hereinafter Sachs); Eyal Benvenisti & Haim Gvirtzman, Harnessing International Law to Determine Israeli-Palestinian Water Rights: The Mountain Aquifer, 33 NAT. RESOURCES J. 543; Avraham Katz-Oz, Water Issues in the Peace Agreement with Jordan and in the Oslo Agreement, in WATER FOR ISRAEL" SOURCES, USES AND PROBLEMS 30-39 (1997)(a collection of essays in memory of Ze'ev Tsur).

60.

In order to narrow the scope of this paper, I am referring exclusively to ministerial level institutions that are legally empowered either directly or indirectly to control water pollution. However, local governments also have legal authority for water pollution prevention that could be used within their jurisdictions pursuant to the Public Health Ordinance, supra note 17, the Business Licensing Law, supra note 14, and the Local Authorities Law (Sewage) 1962, S.H.307. Furthermore, two Stream Authorities have been set up in the past ten years in accordance with the Streams and Springs Authorities Law for the Kishon and Yarkon streams, which have authority similar to that of local governments regarding their respective streams. Mention must also be made of two national water institutions, TAHAL, which is an acronym for Water Planning for Israel Ltd., a government corporation responsible for long-term water planning, and MEKOROT, the national water supplier. Laster devotes a large part of his work to the interrelationship between these two institutions and the Water Commissioner, arguing that separating the powers of planning and supply from the Water Commissioner's other powers and vesting them in separate institutions is in part responsible for the Water Commissioner's failure in protecting the country's water resources. This argument is a recurring theme throughout his dissertation. See Laster Dissertation, supra note 3, at 328330. However, neither TAHAL nor MEKOROT have authority for water pollution control and consequently are not relevant to the arguments put forth in this paper.

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As can be seen from Figure 1, at the national level Israel has ten laws that can be used to control water pollution, divided among seven ministries. Although centralization of these institutions and laws would appear a logical approach to efficient control of the country's water re-sources, in actuality the reverse has happened; since 1989 two additional institutions have joined the ranks of this multi -i nstituti onal structure, both for political reasons. See supra text accompanying notes 176-177.

" The Water Commissioner is not a separate ministry. It was under the authority of the Agriculture Ministry until 1996, when it was transferred to the National Infrastructure Ministry. The role of the latter in the institutional structure will not be discussed since it would be difficult to draw conclusions based on the work of only three years.

61. Until 1996, the Interior Ministry was responsible for the National Sewage Administration, which allocates government funding for the planning and building of municipal sewage treatment facilities. As a result of the early elections following the assassination of Prime Minister Yitzhak Rabin in 1995, coal ition-forming demands created a new ministry, the National Infrastructure Ministry. The National Sewage Administration was among the departments of other ministries that were transferred to it. See also infra note 207.

62. The Local Government Law (Sewage).

63. This was the answer to the author's question to the legal advisor of the Interior Ministry concerning this issue. See also Laster Dissertation, supra note 3, at 146; TAL, supra note 30, ch. 6, at 46. Furthermore, the Interior Minister has been challenged in two citizen suits for his failure to use this authority. See H.C. 1131/93, The Israel Union for Environmental Defense v. The Interior Minister et al; H.C. 1582/95, The Israel Union for Environmental Defense v. The City of Safed et al. Despite the Interior Ministry not using this power, there are an increasing number of functioning sewage treatment systems in Israel, while others are in various stages of planning and building. These systems are mainly a result of increased environmental awareness in the last decade, together with pressure from the Environment Ministry in the form of both threatened and actual legal action pursuant to the Water Law. See infra text accompanying notes 146-162, and Safed and Or Akiba case studies in Part III. However, none are a result of the Interior Ministry's enforcement of the Local Government Law (Sewage). Since this law has been in effect since 1962, it can be assumed that its enforcement would have prevented or reduced, at least partially, pollution from municipal sewage. For general information on The Building and Planning Law from an environmental perspective, see generally GABBAY, supra note 1.

64.

65. During a Knesset committee hearing of new regulations proposed by the Environment Ministry on prohibiting new development in municipalities lacking sewage treatment facilities, the Interior Ministry's representative objected to the proposed regulations, claiming that they would bring development to a standstill, since almost all municipalities lacked functioning sewage treatment facilities. The committee's chairwoman responded that that was precisely the purpose. The incident was unusual in that a representative of one government ministry openly opposed proposed regulations of another in a Knesset hearing, illustrating the lack of coordinated government policy regarding water pollution. See also Y. Yishai, Environment and Development: The Case of Israel, 14 INT'L J. ENVTL. STUD. 205 (1979)("the wide legal authority given to planning agencies regarding the environmental concerns is not fully utilized." Id. at 213.). Planning and Building Law, supra note 14, § 156.

66.

67.

68.

The Prohibition of the Pig Raising Law, supra note 15, regulates this occupation by prohibiting it in specified municipalities, pigs being a sensitive subject in a Jewish state with a large Muslim population. From authority delegated to him pursuant to the Public Health Ordinance, supra note 17, §§ 52D-52G, and the Public Health Regulations (Drinking Water Quality), K.T. 1970.

70.

69. The Public Health Ordinance, supra note 17, §§ 53 et al. These sections were transferred to the Environment Ministry in 1989. See Government Decision Number 526 Regarding Transfer of Authorities from the Health Minister to the Environment Minister from May 5, 1989. See Public Health Rules (Treatment of Sewage Designated for Irrigation), K.T. 1981. See Public Health Regulations (Sewage Standards), K.T. 1992.

71. 72. The Health Ministry once considered enforcing these regulations against the City of Eilat for discharging untreated sewage and made an initial inquiry as to the possibility of assistance from the Environment Ministry in preparing the case. However, the Health Ministry did not pursue the matter. (Based on personal information.).

[Vol. 1 1:2

73.

74.

75.

76. 77. 78.

See Laster Dissertation, supra note 3, at 221-223. The government lost both in the lower court and on appeal in the district court, both the courts deciding that as the Hadera stream was essentially a sewage canal, anyway, the additional sewage discharge from the paper mill could not be considered pollution. See id. at 222-223. See id. at 321 n.72. In one case no verdict was given, while in the others the violators were fined ten and twenty-five Israeli pounds, respectively. See id. See id. at 224. The violators were fined fifty Israeli pounds and agreed to hook up to a sewage treatment system. See id. These five cases were apparently the work of a Health Ministry official who demonstrated both unusual dedication to his job and an awareness of the hazards of water pollution. See The Public Health Ordinance, supra note 17, § 53. See infra text accompanying notes 170-171, 660-662. Section 221 of The Penal Code imposes a three-year prison term for water pollution. The Penal Code, 1977, S.H. 266.

79. The cases were as follows: Cr.C.(Jm.) 492/91, The State of Israel v. Kenig (a Jerusalem building contractor that transferred possession of new homes to owners without any solution for sewage); Cr.C. (B.S.) 338/92, The State of Israel v. City of Tiberias (discharge of untreated sewage into the Sea of Galilee: see infra text accompanying notes 154-158); Cr.C.(B.S.) 200/93, The State of Israel v. Mateh Yehudah Reg'l Council (discharge of untreated sewage); C.C. (T.A.) 6788/91, The State of Israel v. The Jewish Agency (to prevent the use of a cowshed lacking sewage treatment facilities); a case brought against the Modi'in Regional Council for the use of a landfill that was causing both groundwater and surface water pollution (1992). Of the five, only two (the cowshed incident and the Jerusalem contractor) were brought to court within a reasonable and effective time period. The other cases were filed in court months after their referral to the state prosecutor. As to the cases against Tiberias and the Mateh Yehuda Regional Council, the district attorneys withdrew charges against the municipalities and against their mayors after they undertook measures that stopped the pollution. Ministry officials opposed the withdrawal, but they were ignored. (Documentation in Environment Ministry archives). See also THE ENVIRONMENT MINISTRY, DEPARTMENT OF WATER QUALITY, 1995)[hereinafter CONSERVATION

OF WATER

RESOURCES

77-79

(Jan.

CONSERVATION OF WATER RESOURCES].

80. For example, the Ministry requested litigation against the towns of Kfar Yonah, Even Yehudah, and Tel Mond for both discharge of sewage into the Alexander and Polag streams and for groundwater pollution. See Letter of Notification from the Director, Central Region Office of the Environment Ministry, to the Mayors of Tel Mond and Even Yehudah (May 5, 1992)(on file with the author). The district attorney's office returned the files, having decided that there was no need to prosecute, arguing that evidence showed that the towns were apparently close to coming into compliance. See Letter from the Deputy District Attorney, Central Region, to Rachelle Adam (Aug. 7, 1994)(on file with the author) (concerning Tel Mond and Even Yehuda); Letter from the Deputy District Attorney, Central Region, to Rachelle Adam (Aug. 26, 1994)(on file with the author)(concerning Kfar Yonah). As of this writing, the towns have not yet hooked up to functioning sewage treatment plants. In another case, the Ministry referred a case concerning pollution of the Yarkon Stream which was returned due to lack of clear evidence as to the polluter (relevant documents in Environment Ministry archives in its Jerusalem office). See also CONSERVATION OF WATER RESOURCES, supra note 79, at 78: "The district attorneys' treatment of these cases was faulty and dragged out-even those cases that were finally filed in court had been referred to the district attorney months before.... Despite the Water Act's indisputably clear meaning, the district attorney did not treat incidents of water pollution deriving from the acts or omissions of

sions of municipalities, as crimes." Id. See Letter from Rachelle Adam to the District Attorney, Northern Region (Apr. 1, 1992); Eli Elad, Pig Farm Sewage near Nazareth Pollutes Drinking Water, HA'ARETZ, April 8, 1992; see also Letter to the Solicitor General (Feb. 7, 1993)(documents on file with the author). See Letter from Deputy Attorney General, Northern Region, to Rachelle Adam (November 4 1992). Also based on the author's conversations with the assistant district attorney for Israel's northern region. Author was the staff attorney handling the pig farm cases. See also infra text accompanying note 168. See Letter from Rachelle Adam, to Ministry officials (Nov. 9, 1993) (on file with the author). However, it should be pointed out that the district attorney did handle the State's appeal on the light sentences given by the magistrates court to the pig farm owners. See Letter from Rachelle Adam, to District Attorney, Northern Region (Jun. 7, 1994); C.Cr. (Nz.) 164/94, The State of Israel v. Bargut. See Ports Ordinance, 2 L.S.I. (N.V.) 247, § 60(11). See also Richard Laster, Lake Kinneret and the Law, 12 Is. L. REV. 288, 304 [hereinafter Lake Kinneret]. See Order for the Port of Tiberias, 1942, 883.

81.

82.

83.

84.

85.

86.

87.

See TOM BERMAN ET AL., THE CARRYING CAPACITY OF THE SEA OF GALILEE (1997) (Hebrew); Lake Kinneret, supra note 84, at 314-315. This was in order to guarantee the Transportation Ministry's approval of any regulations ensuing from the committee's work: The Water Law, in § 20D(4), stipulates that regulations promulgated by the Environment Minister on boating issues must receive the prior approval of the Transportation Ministry.

88. The following is based on my personal experience as representative for the Environment Ministry on the committee. Along with officials from the Environment and Transportation Ministries, the committee included representatives from the Tourist Ministry, who sided with the Transportation Ministry, and from the Administration for the Sea of Galilee, who supported the views of the Environment Ministry.

See BERMAN, supra note 86.

89. 90. Transportation Ministry officials, fearing a strong public outcry, held that the total prohibition of motorboats and skijets would be an unfair punishment of the public. They also disputed data presented by Environment Ministry officials regarding oil spills from these recreational craft. See ISRAEL-A COUNTRY STUDY 190 (Richard F. Nyrop ed., 1978).

91.

92.

See STATE COMPTROLLER, supra note 43, at 33, 36, 44, 51, and 54-56. See also infra text accompanying notes 545-572; TAL, supra note 30, ch. 6, at 1, 39-40. See TAL, supra note 30, ch. 6, at 23. 93. 94. The Water Drilling Law, 1955, S.H. 182. 95. The Water Metering Law, 1955, S.H. 182 (enacted on the same day as the Water

96. 97.

Drilling Law, supra note 94.). See The Drainage and Flood Control Law, supra note 16. See also Richard Laster, Legal Aspects of Water Quality in Israel, in WATER QUALITY MANAGEMENT, supra note 25, at 263, 268; TAL, supra note 30, ch. 6. See infra note 104. See Business Licensing Law, supra note 14, § 1.

98. 99. 100. See Government Decision No. 6014 (Aug. 20, 1995) (transferring authority for the Nature Reserves Authority from the Agriculture Minister to the Environment Minister).

101. See also STATE COMPTROLLER, supra note 43 at 56. 102. See id.; see also TAL, supra note 30, ch. 6 at 1, 39-40, 57.

103. For more information on pressure groups, special interests, and government, see JAMES BUCHANAN & GORDON TULLOCK, THE CALCULUS OF CONSENT 283-295 (1965). For an analysis of government failure in managing the water sector as a result of the domination of the Agriculture Minister and the Water Commissioner by the agricultural sector, see STATE COMPTROLLER, supra note 43, at 55 and supra text accompanying notes 180-181.

104. "Water management was conferred on the Agriculture Ministry, who is heavily influenced by the farmers-the major consumers of water. There might be an advantage in this, for it could be assumed that large consumers will take extra care to conserve water in order to guarantee long term supply. However, experience teaches us that water managers preferred 'living for now' over conservation of water resources and protecting public interests for the present and the future. In managing a natural resource, such as land or water, conflicts are created between the needs of various sectors requiring the resource. Therefore, there is a necessity for a national policy that does not favor one particular sector and that enjoys a wide view of the future needs of the country and society. In order to sustainably manage the water sector, the responsibility for its management should be given to a professional impartial government institution that will consider national needs...." STATE COMPTROLLER, supra note 43, at 56.

105. See infra text accompanying notes 108, 207. 106. See The Water Law, supra note 18, § 138. 107. See generally Zaslavski, supra note 3: "He [the Water Commissioner] claims that water is not lacking in Israel. Sometimes he claims that water will not be scarce until 2010. Recently he has retreated from this position and has determined that water won't be scarce until 2005. In the newspaper 'Yediot Aharonot' of 2.10.98, he is quoted as saying in the Finance Committee of the Knesset; that 'during the next decade a scarcity of water is not expected, but in the year 2010 there will be a serious lack of drinking water and the State will be forced to start massive desalinization. In the light of the above data, this position is more than questionable."' Id. at

22. Dan Zaslavski was the Water Commissioner during the early 1990s and was replaced because of his support for reform in the water and agricultural sector as presented in this policy paper. See also STATE COMPTROLLER, supra note 43, at 5253.

108. As a result of the early elections in 1996 following the assassination of Prime Minister Yitzhak Rabin in 1995, coalition-forming demands created the new National Infrastructure Ministry. Its new minister (Ariel Sharon) insisted on having the Water Commission transferred to his ministry. See supra text accompanying note 207.

109. The intention to create a legal mechanism that would handle instances of water pollution swiftly and efficiently is reflected in the administrative authorities that the Water Law provides the Water Commissioner. Section 20E enables him to request the preparation and execution of sewage plans for polluting industries. Section 20G authorizes him to issue restoration orders against polluters. If the polluter did not comply with the order and with its conditions and limitations, the Water Commissioner has the authority to carry out the restoration of the polluted site and to compel the polluter to return the costs. Section 20J empowers the Water Commissioner with emergency authority to stop a severe act of pollution, or to prevent one, and is even authorized to use force if necessary. These administrative powers remained in the hands of the Water Commissioner even though the other sections of Article Al, the Water Law's chapter on water pollution, were transferred to Environment Ministry in 1989.

110. See Government Decision Number 525 Regarding Transfer of Authorities from the Agriculture Minister to the Environment Minister (May 5, 1989). Ironically, although today the Environment Ministry has ministerial responsibility for water pollution, the Water Commissioner, by retaining these administrative powers, is legally better equipped to tackle water pollution. "If the law granted the Water Commissioner such extensive authorities for stopping the pollution of water, why has the country's streams turned into sewage canals and why is the quality of the underground water resources deteriorating? A partial answer to the question is that the granting of authorities is not enough, they have to be used courageously and assertively. Until now the authorities for water pollution prevention have not been used aggressively against powerful polluters: farmers, industries and municipalities-that discharge their sewage into streams close to their areas. Furthermore: the Water Commissioner-empowered to prevent water pollution-decided himself that the springs, sources of water for the streams, will be diverted in order to supplement water supplies, while the streams will serve as canals for drainage and sewage water." GOULDMAN, supra note 3, at 14.

111. See generally STATE COMPTROLLER, supra text accompanying note 43.

112. See the discussion below on institutional self-interests and captive agencies, infra

text accompanying notes 188-196.

113. See TAL, supra note 30, ch.2, at 30. 114. See id., ch. 6, at 23-24. 115. The chapter dealing with water pollution was not part of the original Water Law from 1959, but was added to the law in 1971. See Amendment to the Water Law H.H., which gave the Water Commissioner wide authority regarding water pollution. See also TAL, supra note 30, ch. 6, at 24, 40.

116. The following discussion is based on STATE COMPTROLLER, supra note 43. 117. "[T]he management of the water resources over a long period of time is the cause for the serious condition of the water resources. The situation at the beginning of 1990 did not derive from uncontrollable causes and is not the result of one or even two consecutive years of drought, but from the mismanagement of the water sector over the years." Id. at 13.

118. See id. at 11. See also TAL, supra note 30, ch. 6, at 50-51. 119. See supra text accompanying notes 42-45. 120. See STATE COMPTROLLER, supra note 43, at 6. 121. See id. at 7.

122. See id. at7,21. 123. See id. The report emphasized the serious deterioration of the quality of Israel's water resources. In the past twenty-five years, the level of chlorides in the coastal aquifer that serve as an indicator of water quality for irrigation rose on average from 100 milligrams per liter to 155. The nitrate content, which indicates the pollution level of groundwater and its use for drinking water, was doubled during this same period. See id. at 8. Despite the deficit in the mountain aquifer, the Water Commissioner authorized extractions that lowered the level to beneath the red danger line. The water level of the Sea of Galilee had reached a record low, a few centimeters above the lowest permitted level, endangering its biological-chemical balance. Despite these record low levels and the recommendations of professional advisory agencies, the Water Commissioner continued the policy of overextracting. See id. at 27. See generally Zaslavski, supra note 3, at 13-22 (a detailed description and analysis of overpumping).

124. See STATE COMPTROLLFR, supra note 43, at 15-16, 37-45 (chapter on the cost of

water and pricing), 48-51.

125. "[T]he decision makers were aware throughout the years of the difficult problems facing the water sector. But despite the findings of this report and report number 37 from 1987, as well as the findings from the State Comptroller reports 24, 27, 29 and 36, the overpumping and the overallocations continue." STATE COMPTROLLER, supra note 43, at 52.

126. The Water Commissioner in office at that time resigned soon after the publication of the report. See Tal, supra note 30, ch. 8, at 20. However, as part of the "old boys network," he was brought back in 1996 by the minister for the new National Infrastructure Ministry, where he served as head of the National Sewage Administration until December 1999. On the National Sewage Administration, see also supra text accompanying note 61.

127. See STATE COMPTROLLER, supra note 43, at 25. 128. See Water Regulations (Prevention of Pollution of the Sea of Galilee by Livestock), 1973, K.T. 3020, 1490; Water Regulations (Prohibition of Use of Hard Detergents), 1974, K.T. 3208, 1621.

129. See Water Regulations (Prevention of Water Pollution) (Spraying near Water Sources), K.T. 1991, 776 (restrictions on pesticide use near streams); Water Regulations (Prevention of Water Pollution)(Rinsing Spraying Apparatus), K.T. 1991, 1268 (restrictions on rinsing out pesticide sprayers after use); Water Regulations (Prevention of Water Pollution) (Septic Pits and Septic Tanks) K.T. 1992, 784 (restrictions on the use of septic pits); Water Regulations (Prevention of Water Pollution) (Restrictions on the Use of Salt in [Industry]), K.T. 1994, 801; Water Regulations (Prevention of Water Pollution)(Evaporation Ponds), K.T. 1997, 1118 (restrictions on the use of evaporation ponds); Water Regulations (Prevention of Water Pollution) (Fuel Stations), K.T. 1997, 1121 (underground fuel tanks); Water Regulations (Prevention of Water Pollution) (Boats in the Sea of Galilee), K.T. 1998, 82 (sewage treatment facilities for boats in the Sea of Galilee); Water Regulations (Prevention of Water Pollution) (Discharge of Brine), K.T. 1998, 897 (restrictions on discharge of industrial brine).

130. See also CONSERVATION OF WATER RESOURCES, supra note 79, at 79. 131. The following description of the creation of the Environment Ministry is based on

TAL, supra note 30, ch. 8.

132. See id.

133. See id. 134. See id. 135. This was not only opposition to any change in the prevailing power arrangements; both these ministers were from the Labor party, and did not want to help out a minister from the Likud party, particularly one that neither liked personally. See id.

136. See id., ch. 8, at 9; see also Government Decision Number 525 Regarding Transfer of Authorities from the Agriculture Minister to the Environment Minister (May 5, 1989).

137. See id. For a description of the Water Commissioner's administrative powers con-

cerning water pollution, see supra note 109.

138. For example, Ministers Ronnie Miloh and Yossi Sarid. See TAL, supra note 30, ch.

8, at 10 and 26.

139. "Although environmental litigation has been minimal for years, efforts have been made in recent years to encourage citizens to bring private criminal proceedings

and to initiate civil proceedings in environmental matters under various civil and environmental laws. One important development saw the passage of the Citizen Suits Law in order to ease the way for citizens to bring civil claims and secure injunctions against potential and actual polluters.... When the Law was first passed, its main opponents claimed that the courts would be flooded by claims by aggrieved citizens and environmental organizations. In actual fact, few citizen claims were presented. Experience has demonstrated that the process has not been abused ...can be most effective against polluters of the enviand that, on the contrary ronment.... Despite these positive developments, the public's role in pursuing court litigation remains the weakest link in the Israeli system of environmental enforcement." GABBAY, supra note 1, at 250-251. However, this pro-citizen suits statement tends more to represent the Ministry's official position than the actual situation, and must be countered by evidence of the Ministry's sometimes ambivalent attitude toward citizen suits, along with the tendency of ministry officials to regard citizen suits as power battles and turf wars. See infra pp. 172-173.

140. See infra text accompanying note 303. 141. By Knesset Member Dedi Zucker. 142. See infra note 271; see also Letter from Legal Staff, to Environment Minister (Nov. 14, 1994)(recommending ministry support for an amendment to the Citizen Suits Law that broadened the section on standing and added a provision for public access to information, and subsequent hearings of the Knesset committee on the amendment from Nov.16, 1994, testimony of the Environment Minister (on file with the author).

143. Based on information obtained by the author's involvement in the legislative process. See also Noga Morag-Levine, Insiders, Outsiders and Interest Group Litigation: Declining Corporatism and the Rise of Adversarial Environmentalism in Israel, 11 (paper presented at the 1998 annual meeting of the American Political Science Association)[hereinafter Morag-Levine]; GABBAY, supra note 1, at 250251.

144. Information obtained by the author's involvement in the legislative process; see

infra text accompanying notes 237-240. 145. See infra text accompanying notes 147-162.

146. See id. 147. For a discussion of municipal sewage and water pollution, see TAL, supra note 30, at ch. 6, at 28-29, 45-46; GABBAY, supra note 1, at 36; Laster Dissertation supra note 3, at 106-112; CONSERVATION OF WATER RESOURCES, supra note 79, at 18.

148. See CONSERVATION OF WATER RESOURCES, supra note 79, at 18. 149. As demonstrated by the large amount of litigation against municipalities whose main line of defense is lack of sufficient funding. See infra Part IV (case studies Safed and Or Akiba).

150. Lawsuits were filed against the following municipalities: Tiberias, Mateh Yehuda, Bnei Ya'ish, Hof Hacarmel, Lev Hasharon, Be'er Sheva, Kiryat Malachi, Kiryat Ya'arim, Safed, Beit Ge'an, Herzeliah, Hatzor, Rosh Pinah, Menasheh, Um el Fachim, Or Akiba, and Galil Tachton. See Enforcement Report, supra note 82. See also THE ENVIRONMENT IN ISRAEL, ANNUAL REPORT 21/1997 43-45 (Tamar Ben Yeshaya ed., 1998) (Hebrew)[hereinafter ANNUAL REPORT]. In the cases of Mateh Yehudah, Bnei Ya'ish, Kiryat Ya'arim, and Safed, the court issued moratorium orders on additional hook ups to the sewage system until the completion of sewage treatment facilities. As a result, the municipalities responded relatively quickly in constructing sewage treatment facilities. The case against Tiberias was for a defect in a sewage line that spewed raw sewage into the Sea of Galilee. Or Akiba has completed the process of connecting to a regional sewage treatment plant, while the others are in various stages of compliance. Regarding the lawsuit against Beit Ge'an, the court refused to consider requiring the town to construct sewage treatment facilities, expressing anger at the Ministry's demand, which would have required the expenditure of millions of dollars that the town claimed it did not have. C.Cr. (Hi.) 1369/98 The State of Israel v. The Town of Beit Ge'an.

151. See C.C. (B.S.) 2732/98; C.C.(Hadera) 3254/98, The State of Israel v. The Town of Or Akiba.; infra text accompanying notes 420-473 (case study on Or Akiba).

Id.

152. See id. at 5. 153. 154. See CONSERVATION OF WATER RESOURCES, supra note 79, at 14. 155. The following paragraph is based on my personal experience as the lawyer handling the case for the Ministry. See also TAL, supra note 30, ch. 9, at 16-17; CONSERVATION OF WATER RESOURCES, supra note 79, at 79.

156. See TAL, supra note 30, ch. 8 at 16-17; "Raw wastes were pouring into the national the Ministry demanded swift action, but for eight drinking water reservoir.., months had no choice but to swallow the mayor's excuses and apply moral suasion.... [W]hen the Ministry's formal threat and call for action didn't produce re-

sults, its legal staff called for an indictment of the mayor and city officials. They even wrote out the legal documents and put together the list of witnesses for prosecutors ... but the northern region District Attorney refused to file it." Id.

157. See id.; See also Cr.C. (B.S.) 338/92, The State of Israel v. City of Tiberias;

CONSERVATION OF WATER RESOURCES, supra note 79, at 79.

158. See id. Based also on the author's personal experience. See also TAL, supra note

30, ch. 8 at 16-17.

159. See Cr.C. (B.S.) 16/96, The State of Israel v. The City of Safed. See generally infra

text accompanying notes at 372-418 (case study on Safed).

160. See City of Safed, supra note 159 (court hearing from Mar. 28, 1996). 161. "From the facts that were presented today before the court arises a very strange situation, and [I say this] as an understatement. Apparently and according to facts that were presented by the prosecutor and the attorney for the city of Safed, apparently the order that was issued upon request of the Environment Ministry was violated by the Housing Ministry or by some entity representing it." See City of Safed, supra note 159, (decision of the Tiberias magistrate court from March 28 1996). I represented the Environment Ministry in this meeting from April 22, 1996 (documentation on file with author).

162.

163. A similar situation exists in the United States. When considering the various structures of the future EPA, President Nixon rejected the proposal of the conmittee that had been appointed for this purpose that "called for a consolidation into one agency of most of the natural resources and pollution control programs then located in forty-four bureaus and offices within nine different agencies, including the Army Corps of Engineers, Soil Conservation Service, Forest Service, and Rural Electrification Administration. Congress likewise shelved parallel suggestions that it too should foster systematic and coordinated federal environmental and natural resources policy planning by reducing the fragmentation of authority over that subject matter then reflected in its committee structure. Congress took no such action, and President Nixon ultimately proposed only the creation of a non-cabinet-level federal agency that consolidated the federal pollution standard setting functions then located in fifteen offices within four agencies and one interagency council. The reorganization transferred to EPA only nine of approximately fifty federal programs then pertaining to the environment." Richard Lazarus, The Tragedy of Distrust in the Implementation of Federal Environmental Law, 54 LAW & CONTEMP. PROBS. 311, 315-316 (1991); see also WALTER A. ROSENBAUM, ENVIRONMENT POLITICS AND POLICY 24, 117 (1998) (attributes government failure in environmental issues to conflicts created by the large number of institutions who share responsibility for identical environmental issues).

164. See The Prohibition of Pig Raising Law, supra note 15, § 5, which states that "a policeman and whoever has been authorized by the Minister of Police 'is entitled to enter premises in which pigs are being raised in violation of the law, in order to confiscate the pigs ....... Id. The Minister of Police had authorized an Interior Ministry official to enforce the law.

165. See Authorization of Mordechai Davir by the Police Minister Pursuant to § 5 to the

Prohibition on Pig Raising Law (Feb. 25, 1993)(on file with the author).

166. As the staff attorney handling the case, and on the advice of the deputy district attorney for the northern region, I spent months attempting to persuade the Interior Ministry's legal office to order its officials to enforce the Prohibition of Pig Raising Law against the pig farm owners. Perhaps due to my efforts, an order was eventually issued though never enforced. However, since I never received an answer to my letters to the Interior Ministry's legal advisor, this is a matter of conjecture.

167. The reasons for not enforcing the order are unknown, but probably the primary explanation is simply lack of institutional will. See generally ARONSON & FRUMKIN, supra note 4, at 40.

168. No written correspondence exists regarding this exchange between the Environment Ministry and the district attorney, since the requests were made by telephone, as were the refusals. This was in order to encourage cooperation and avoid friction that could have been caused by formal correspondence. The deputy district attorney for the northern region argued that, prior to litigation, it was necessary to exhaust the administrative authorities of other institutions empowered to act against water polluters. See also CONSERVATION OF WATER RESOURCES, supra note 79, at 79; ARONSON & FRUMKIN, supra note 4, at 40.

169. See supra text accompanying notes 91-127 (sections on the Agriculture Ministry

and the Water Commissioner).

170. See supra text accompanying note 77. See also infra text accompanying notes 660-

662.

171. See id.

172. Note Gouldman's observations regarding the large numbers of water institutions generally (and not specifically concerning water pollution): "From the above survey of institutions it is shown that there are too many, and that the water systems are not handled by one primary mechanism. Each institution is occupied with its own affairs and is not obliged to coordinate its actions with others.... [I]t is also possible that some subjects are not taken care of at all, since each institution believes (or hopes) that the next institution is handling it." GoULDMAN, supra note 3, at 40.

173. For example, under the Ministry administrative structure there is a deputy director general for hazardous substances, while the area of water pollution is included under the functions of the deputy director general for infrastructures.

174. As told to me by the Director for the Department of Water and Streams, relaying a conversation with the Ministry's director general that had been spurred by his complaining about budget allocations within the Ministry, in which the Department of Hazardous Wastes received the lion's share.

175. For further discussion of "institutional self interest" in an environmental context, see Jeffrey Keithline, Emergency Planning and Community Right-to-Know Citizen Suits: Should the Supreme Court Extend Gwaltney?, 54 WASH. & LEE L. REV. 1227, 1264 (1997).

176. JOSEPH L. SAX, DEFENDING THE ENVIRONMENT 53 (1970).

177. See supra text accompanying notes 61-67 (section on Interior Ministry).

178. Id.

179. See Liat Collins, Bitter Waters, JERUSALEM POST, May 8, 1998, at 18 [hereinafter Bitter Waters]: "When did we start being truly concerned about the country's fivers? Only after people fell in the water and died from the pollution." The State Attorney General Office's reluctance to litigate water pollution cases changed dramatically after the Yarkon Stream tragedy. During the 1997 Maccabiah athletic events, several Australian athletes died and many more were injured following the collapse of a bridge on which they were standing into the polluted stream. See also GABBAY, supra note l, at 40; ANNUAL REPORT supra note 150, at 34-37; Judy Siegel, Yarkon Pollution Complicates Treatment of lnjured Athletes, JERUSALEM POST, July 16, 1997; Gil Hoffman, Demo at the Yarkon Marks One Year Since Maccabiah Bridge Collapse, JERUSALEM POST, July 15, 1998. As part of its legal strategy in defending the government against the lawsuits brought by the victims and their families, the State Attorney General has decided to sue those municipalities discharging their sewage into the Yarkon Stream (decided in meeting with the Tel Aviv district attorney in which the author participated). This was a total reversal of its previous position during the early 1990s when it refused to assist the Environment Ministry in prosecuting municipalities for violations of the Water Law. See supra text accompanying notes 4.

180. See STATE COMPTROLLER, supra note 43, at 37-46; see also GOULDMAN, supra, note 3, at 40. See generally id. at 39-43. Since 1994, the government has gradually decreased water subsidies, succeeding in eliminating them in the municipal and industrial sectors, while lowering them by 36% in the agricultural sector. See Sachs, supra note 59, at 15.

181. However, there is no evidence that the transfer of the Water Commissioner to the National Infrastructure Ministry has made any difference as to use of his administrative powers (personal knowledge of author).

182. One pig farm owner against whom the Environment Ministry issued an administrative closure order under this law claimed that the pig farm had been established for years without other government institutions requiring it to obtain a license. Thus, his argument went, the Environment Ministry was constrained from requiring it now. See High Court Petition, supra note 11, at 93-96. This argument was raised together with the claim of discrimination when the government (the Environment Ministry) did finally take action. Id. Although the High Court eventually rejected the petition, it was sufficiently disturbed by these arguments to require the Environment Ministry to commit itself before the Court to take action against other polluters situated along the Tsipori Stream. However, after an updated review of polluters along the Tsipori Stream, it turned out that the only remaining polluters were the pig farms.

183. Respectively, cooperative farms and villages: the mainstays of the agricultural

lobby.

184. The defendant argued that the major source of the stream's pollution is "the 12 cowsheds, the 10 chicken coops, the I goose farm and the 3 sheep pens" located downstream in Moshav Tsipori. High Court Petition, supra note 11, at 34, §§ 3436. Again, because the Agriculture Ministry's main interest is the promotion of agriculture, it would not have undertaken enforcement actions against the kibbutzim and moshavim that would have injured this interest, while simultaneously causing political harm.

185. See supra text accompanying notes 77, 170. 186. Id.

187. See id. 188. See Lazarus, supra, note 163, at 334. 189. See id. at 317-318. See also Keithline, supra note 175, at 9. 190. Elimination of subsidies to the industrial and municipal sectors, while subsidies to the agricultural sector has merely been reduced, illustrates this argument. See Sachs, supra note 59, at 15. 191. See Galnoor, supra note 54, at 295.

192. See Lazarus, supra note 163, at 365. A question that arises, but is beyond the scope of this paper, is whether agency capture of an environment institution by a nongovernment environmental organization has occurred.

193. See id. at 364. 194. See GOULDMAN, supra note 3, at 8. 195. See id. 196. See Galnoor, supra note 54, at 307.

197. A brief summary of later actions taken by the Environment Ministry is as follows: in December 1993, the Environment Ministry served indictments against six pig farm owners located on the Tsipori Stream in the location of Reina-Nazareth (Cr.C (Nz). 2959/93 (Magistrate Court), The State of Israel v. Bargut. Together with the indictments, the government requested temporary orders pursuant to § 20W to the Water Law against the defendants to stop polluting the stream. All six were convicted and the requested orders were issued. After the initiation of the criminal proceedings, and as a result, three defendants closed their pig farms. The others, however, ignored the court orders. The Ministry then issued closure orders under the Business Licensing Law, supra note 14, resulting in another shut down (the owner did not voluntarily close the farm and was in violation of the order-Ministry staff, together with the police, entered the premises and confiscated all the livestock). As for the remaining two pig farms: one owner appealed the conviction of the magistrate court to the district court. After losing the appeal, the defendant immediately filed a petition with the High Court of Justice (H.C. 120/96, Bargut v. The Environment Ministry), claiming discrimination in that the government did not take enforcement measures against other polluters located along the Tsipori Stream. The High Court of Justice denied the petition (after ministry officials agreed to initiate similar proceedings against other polluters of the stream) and the farm was meant to close by September 1, 1998. The remaining pig farm owner, while on a trip to a neighboring village to inspect an alternate site for his farm, was shot and critically wounded by a local pig farm owner who wanted to prevent extra competition. For humanitarian reasons, the Ministry decided to postpone closure proceedings against the owner until his recovery from his injuries. By January 1999, these two remaining farms had also closed, bringing to an end the saga of the pig farms on the Tsipori Stream (telephone conservation with Att. Smadar Ze'evi, ministry prosecutor handling the case (March 3, 1999 . For general information updated to July 1995, see ARONSON & FRUMKIN, supra note 4, at 40-41.

198. See supra text accompanying notes 93-127. 199. See supra text accompanying note 69. 200. See supra text accompanying note 67. 201. See supra text accompanying notes 78-79.

202. "Dispersed authority breeds conflicts and competition among agencies and their political allies over program implementation, authority and resources-the "turf fighting" familiar to students of bureaucracy". ROSENBAUM, supra note 163, at 77.

203. See supra text accompanying notes 52-57. 204. For a rich description of the tribulations involved in forming a government in Israel

that is still relevant today, see BERNSTEIN, supra note 42, at 130-139.

205. See infra note 207. 206. See supra text accompanying notes 131-134; see also ROBERT HIGGS, CRISIS AND LEVIATHAN 68 (1987)(as to the increase of institutions: "In each of its variants the idea is that bureaucracies are easier to create than to destroy; hence bureaus, bureaucrats and the number of rules they issue all increase irreversibly over time." Id.)

207. For example, in order to form a government after the 1996 elections, the prime minister-elect transferred highly valued authority regulating land, water, and energy to a new ministry for infrastructure. These delegations of authority comprised the politician's wish list for his new ministry, and were the conditions for his agreeing to join the government. Since it was perceived that the formation of a new

[Vol. 1 1:2

government was dependent on this particular politician-much sought after because of his strong political base-the prime minister-elect did not hesitate in transferring the demanded powers, despite the opposition of the ministers from whom they were taken. Thus the Water Commission, being one of his demands, was transferred from the Agriculture Ministry to the new National Infrastructure Ministry. Therefore, the reasons for removing the Water Commission from the Agriculture Minister were political ones and not to improve the management of the country's water resources.

208. See supra text accompanying notes 52-57. 209. See supra text accompanying notes 145-153.

210. In examining and analyzing the concept of citizen suits as to their usefulness in promoting enforcement of water pollution in Israel, and although the scope of this paper is narrowed to use in Israel, it would be difficult not to mention the American experience of citizen suits. While still a controversial subject, the status of citizen suits in the United States environmental enforcement mechanism is firmly entrenched. The large numbers of citizen suits have clearly contributed to the development of environmental enforcement and the creation of a substantial body of environmental case law. By creating an unique enforcement mechanism separate from the mechanism controlled by the government, citizen suits are challenging

traditional forms of institutional enforcement, and can perhaps revolutionize accepted concepts regarding the issue. This challenge forced the EPA to re-examine its own enforcement record and rethink its enforcement strategies and policies. In the United States today, citizen suits have been accepted as a necessary part of the total environmental enforcement effort and are judged as being an efficient and effective enforcement alternative. This is relevant to the Israeli experience in light of the fact that the roots of Israeli citizen suits are in those of the United States: the Prevention of Nuisances Act (Citizen Suits) 1992, is an example of this, for it was drafted by an American-trained environmental lawyer who had immigrated to Israel. The American influence is felt throughout the law's legislative history, and is specifically noted in the introduction (see infra note 263). Furthermore, Israel's citizen suit provisions that have been amended to existing environmental legislation are based on the US model-most evident in the 60-day notification period, which was borrowed from the US counterpart. The significance of citizen suits in

the U.S. is reflected in the substantial amount of law review articles on the subject. For example, see Boyer & Meidinger, Privatizing Regulatory Enforcement, 34 BUFF. L. REV. 833(19-); Robert F. Blomquist, Rethinking the Citizen as Prosecutor Model of Environmental Enforcement Under the Clean Water Act: Some Over-

looked Problems of Outcome Independent Values, 22 GA. L. REV. 337(19-); Philip H. Gitlen, Private Attorneys General: Let's Do It Right, 2 FALL ALB. L.

ENVTL. OUTLOOK 17(19-).

211. "The water resources in the State are public property; they are subject to the control of the State and are designated for the requirements of its inhabitants and for the

development of the country." The Water Law, supra note 18, § 1.

212. Sax's book, DEFENDING THE ENVIRONMENT, which he wrote in 1970, served as both an inspiration and a model for the extensive environmental legislation enacted by Congress in the 1970s, particularly the citizen suit provisions. See SAX, supra note 176, at xiii.

213. "[I]n these ways, the administrative process tends to produce not the voice of the people, but the voice of the bureaucrat-the administrative perspective posing as the public interest. Simply put, the fact is that the citizen does not need a bureaucratic middleman to identify, prosecute, and vindicate his interest in environmental quality. He is perfectly capable of fighting his own battles-if only he is given the tools with which to do the job." Id. at 56.

214. However, environmental organizations may also be susceptible to political pressures. Cooperation and collaboration with government institutions is liable to introduce non-environmental considerations into the decision-making process, particularly decisions regarding litigation against those same institutions. One example from the Israeli experience is the Society for the Protection of Nature in Israel (SPNI). Despite having been in existence for over forty years, it engages in environmental litigation only sporadically, and even then only started using enforcement procedures after 1987. Its closeness to the government, as reflected in the close links between its founding members and the government and governmental funding of its activities, precluded litigation. See Morag-Levine, supra note 143, at 9,17.

215. The Citizen Suits Law does not provide for any remedy besides court orders, the legislator's purpose being the prevention of potential abuse of citizen suits by plaintiffs more interested in receiving cash awards than in preventing or abating pollution. See infra text accompanying note 255.

FOR

SUPPORT DOCUMENT

and Enforcement, Nov.

216. See Andrew McFee Thompson, Free Market Environmentalism and the Common Law: Confusion, Nostalgia, and Inconsistency, 45 EMORY L.J. 1329, 1367-1371 (1996). 217. See id. 218. See CITIZEN ENFORCEMENT: TOOLS FOR EFFECTIVE PARTICIPATION, CAPACITY ENVIRONMENTAL COMPLIANCE AND BUILDING ENFORCEMENT PROGRAMS 6 (Fifth International Conference on Environmental [hereinafter CITIZEN Compliance ENFORCEMENT]; see also C.C. (T.A.) 71112/99, Shemgar v. Israeli Military Industries (class action filed by a group of residents of the town of Ramot Hasharon for pollution of local wells and the underlying aquifer that serve as drinking water sources for Ramat Hasharon). This is an unusual case in that private citizens-in contrast to an environmental organization-went to court against a polluter. As argued later (see infra text accompanying notes 633-649), one of the reasons that Israelis are indifferent to their water resources is because there are very few visible water resources, most of them being groundwater. But cf. text accompanying notes 650-675. This paradigm would explain why the residents of Ramat Hasharon sued the polluters because it was their own drinking water wells that had been polluted.

16-20,

1998)

219. TERRY ANDERSON & DONALD LEAL, FREE MARKET ENVIRONMENTALISM 4 (1991). 220. "Free market environmentalism views man as self-interested. This self interest may be enlightened to the extent that people are capable of setting aside their own wellbeing for close relatives and friends or that they may be conditioned by moral principles. But beyond this, good intentions will not suffice to produce good results. Developing an environmental ethic may be desirable, but it is unlikely to change basic human nature. Instead of intentions, good resource stewardship depends on how well social institutions harness self interest through individual incentives." Id. at 4; see also Thompson, supra note 216, at 1368-1370.

221. SAX, supra note 176, at 60. 222. See id. at 59. 223. See id. at 60. 224. See id. at 59-60. 225. See id. 226. See id. at 88. 227. "[L]itigation is thus a means of access for the ordinary citizen to the process of governmental decision-making. It is in many circumstances the only tool for genuine citizen participation in the operative process of government." Id. at 57; see also id. at xii.

228. For a general description of the Israeli political system, see ISRAEL-A COUNTRY

STUDY, supra note 91, at ch. 3; BERNSTEIN, supra note 42.

229. Since citizen suits provisions were added to the Water Law only in 1991, and the Citizen Suits Law was enacted in 1992, a possible framework for a citizen suit against the pig farms before the Environment Ministry initiated court action in December 1993 would have been either a petition for judicial review to Israel's High Court of Justice or an action for nuisance under the Torts Ordinance.

230. See generally CITIZEN ENFoRCEMENT, supra note 218. 231. For example, see § I of the Water Law, quoted in supra note 181. For a general

description of these laws, see infra text accompanying notes 242-249.

232. See id.; see also infra text accompanying notes 251-292 (regarding The Prevention

of Nuisances Law (Citizen Suits .

233. Israel's environmental laws are criminal and consequently contain imprisonment

penalties and fines. See infra text accompanying notes 488-490.

234. See Moshe Landau, The Limits of Constitutions and Judicial Review,

in ISRAELI AND AMERICAN EXPERIENCE 197, 201-202

CONSTITUTIONALISM-THE (David Elazar ed., 1990).

235. See The Basic Law (the Judicature), 1978, S.H. 78, § 2. Unfortunately, despite their legal professionalism, many of Israel's judges are not well informed on environmental issues, a contributing factor to low fines. For amounts of fines, see Enforcement Report, supra note 82. See also infra text accompanying notes 289-290. 236. See also Aaron Barak, The Role of the Supreme Court in a Democratic Society, 21

I'UNEI MISHPAT 13 (1997).

237. The Freedom of Information Act, 1998, S.H. 226. The law came into effect in May

1999.

238. "Every citizen or resident of Israel has the right to information from a public authority in accordance with the provisions of this law." The Freedom of Information Act, supra note 237, § 1.

239. As a staff attorney, a constant query from ministry staff would concern the release

of information requested by the public.

240. See Freedom of Information Act, supra note 237, § 15. 241. For exceptions, see infra note 249. 242. See generally GABBAY, supra note 1, at 320. However, since these laws deal with

marine pollution only, they are not relevant to the present discussion.

243. The Prevention of Marine Pollution by Oil Ordinance (New Version), 1980, S.H.

311.

244. The Prevention of Marine Pollution Law (Dumping of Waste), 1983, S.H. 110. 245. The Prevention of Marine Pollution from Land Based Sources Law, 1988, S.H. 118. The citizen suit provision of this law has been used several times against polluters who discharge sewage into the sea; however, again, since it deals with marine pollution only, it is not relevant to this discussion. However, it should be pointed out that an amendment is being prepared to this law that would include in the definition of "sea" those segments of the coastal streams that flow into the Mediterranean, as well as groundwater bordering on it, thus making this law relevant to cases of water pollution. See "Law Memorandum: Amendment to the Prevention of Marine Pollution from Land Based Sources Law, 2000," § 2 (on file

with author).

246. The Environment Law (Means of Punishment)(Legislative Amendments), 1997,

S.H. 132.

247. This law, from 1962, dealing with air and noise pollution, should not be confused with the Prevention of Environmental Nuisances Law (Citizen Suits), enacted in 1992.

248. See id. 249. See The Anti-Litter Law, § 21a; The Prevention of Nuisances Law, § 1 IF; The Hazardous Waste Law, § 15B. The Public Health Ordinance and the Roadsigns Law were not considered suitable for citizens suits, since they are primarily enabling laws for municipalities to regulate environmental nuisances.

250. Amendment to the Water Law, 1995, S.H. 126. See infra text accompanying notes

303-306.

251. The Prevention of Environmental Nuisances (Citizen Suits), 1993, H.H. 178, 179

(introduction and legislative history)[hereinafter Legislative History].

252. As noted above, the citizen suit provision of the Water Law of 1959 was added in 1991, while those of the Litter Law, the Health Ordinance, and the Prevention of Nuisances Law of 1962 were added in 1997. The marine pollution laws, however, which were enacted during the 1980s, following Israel's ratification of international environmental agreements, were based on model laws that included citizen suits.

253. Id. However, at least for the Environment Ministry, lack of financial resources is

not a reason for lack of enforcement (based on its generous enforcement budgetapproximately NS1,000,000 for the 1997-1998 fiscal year (roughly $250,000) which was not entirely utilized).

254. See Legislative History, supra note 251, at introduction. 255. The law's lack of provisions for damages is a drawback in its implementation. See

infra text accompanying notes 537-544.

256. "[E]nvironmental pollution often causes long-term damage that does not focus on a specific individual, nonetheless, this should not prevent the use of the effective tool of private enforcement." Legislative History, supra note 251, at introduction. 257. See id. § 2(a) ("Pursuant to the request of whoever has been injured or is liable of

being injured by an environmental nuisance...." Id.).

258. See id. § 6(a) ("1. The Council for National Parks, Nature Reserves and National Monuments; 2. The Nature Reserves and National Parks Authority; 3. The Society for Protection of Nature in Israel; 4. The Council for a Beautiful Israel; 5. The Israel Union for Environmental Defense." Id.).

259. See id. § 6(c) ("A registered association whose primary purpose is protection of the environment is entitled to file a citizen suit if at least one of its members is entitled to do so." Id.).

260. "A person injured or liable to be injured by an environmental nuisance is entitled to file for an injunction in the name of a group of people injured or liable to be injured by the same nuisance." Id. § 10. However, the court is authorized to order that a request for an injunction filed as a class action not be pursued as a class action if the court has been persuaded or that the action was not filed in good faith, or that the

size of the group does not justify a class action, or there exists a reasonable basis to assume that the plaintiff does not represent the interests of all the members of the group. The court is also authorized to make a class action conditional to terms that the court will determine as necessary to decide issues common to all interested parties. See id. § 11.

261. See id. at 180. 262. See id. 263. See id. Clearly, the Bill's drafters were both well versed in citizen suit issues in the United States and enthusiastic about their potential in Israel. The legislative history explains that private enforcement of environmental legislation has proven successful in the United States, and it is hoped that in Israel, too, it will provide an effective tool in improving the quality of the environment.

264. "The Court is authorized to award a plaintiff expenses and legal fees." Id. § 14. 265. See id. § 14, Explanation. 266. "This section provides an additional incentive-or removes a disincentive-to bringing lawsuits pursuant to the law. The misgiving is that citizens will refrain from suing because of the possibility that if they lose, they will be liable for court costs that could reach large sums. Usually, the polluter is better able to bear the costs than the plaintiff-citizens. Therefore, if the plaintiff loses, but the case was reasonable and of public importance, the court is authorized to decide that each side covers his own costs." Id.

267. The Justice Ministry's strong opposition to attorney's fees was delaying the enactment of the law, and thus this provision was deleted in an effort to complete the legislation as fast as possible. The Israel Union for Environmental Defense

(Vol. 11:2

(IUED), one of Israel's leading environmental organizations (see supra text accompanying notes 312-317) and a strong supporter of the bill opposed deleting this provision but was not successful in persuading the members of the Knesset committee dealing with the bill to approve it. See E-mail from Alon Tal, Founder and Former Director, IUED, to Rachelle Adam (Feb. 3, 1999) (personally involved in the drafting of the bill and participated in the hearings).

268. "In this Law: ...

'air pollution,' 'noise' and 'odor' have the same meaning as in the Prevention of Nuisances Law, 1961; 'water pollution' has the same meaning as in the Water Law, 1959; 'marine pollution' has the same meaning as in the Prevention of Marine Pollution by Oil Ordinance (New Version), 1980, the Prevention of Marine Pollution Law (Dumping of Waste), 1983 and the Prevention of Marine Pollution from Land Based Sources Law, 1988; 'waste pollution' means dumping of solid, semi-solid, liquid or gaseous material in a place not designated for that purpose by law; dumping includes throwing, spilling, abandoning or littering in any other manner; 'hazardous substances pollution' means pollution by hazardous materials listed in Part A of Annex One of the Regulation of Goods and Services Ordinance (Transport and Towing Services), 1978; 'radioactive pollution' means ionized or non-ionized radioactive pollution as defined in the Pharmacists Regulations (Radioactive Materials and their Byproducts), 1980; 'environmental nuisance' means air pollution, noise, odor, water pollution, marine pollution, litter, hazardous waste pollution, radioactive pollution, or anything violating legislation, orders, plans, business licenses or any other permit or license, or that is dangerous to human health or may cause actual suffering; for this purpose, 'plan' has the same meaning as in the Planning and Building Law, 1965." Prevention of Environmental Nuisance Law (Citizen Suits), 1992, S.H.184, § 1 [hereinafter Citizen Suits Law].

269. "At the request of a person injured by, or likely to be injured by an environmental nuisance, the Court may order the person causing or likely to cause an environmental nuisance (hereinafter 'the person causing the nuisance') to do one or more of the following: (1) refrain from the act causing or likely to cause the environmental nuisance, or to desist from the act; (2) repair the damage or return the situation to the state existing prior to the environmental nuisance (hereinafter 'repair damage'); (3) do everything necessary to prevent the recurrence of the environmental nuisance." See id. § 2(a).

270. "In preparing to serve an order according to § 2, the Court considering the action will weigh the amount of damage caused or liable to be caused to the plaintiff or the public interest, against the damage liable to be caused to the person responsible for the nuisance or to the public interest, by the issuing of the order." Id. § 3. 271. See Justice Ministry letter (Mar. 30, 1990) (on file with author) (hereinafter Citizen

Suit Letter).

272. "(a) A court order served to the person causing a nuisance which will impair the supply of water to the consumers of a water supplier will go into effect only after the Water Authority has arranged for the full provision of water to those consumers for as long as the order is in effect. (b) The Water Authority will provide the service in Subsection (a) within 45 days of serving the order." Citizen Suits Law, supra note 268 § 7.

273. See id. § 9 (entitled "Recurring Environmental Nuisance"). 274. "In this section, 'a recurring environmental nuisance'-if one of the following has

happened (1) the person causing the nuisance has repeated it; (2) the person causing the damage or whoever has been determined by the court as responsible for restoration of the damage, has refrained from restoring the damage." Id. § 9.

275. "When the Court has served an order according to Sections 2 or 8, and within two years from the date of the order to stop the nuisance or repair damage a recurring environmental nuisance has occurred, the plaintiff is entitled to file an action within the same two years and section 5 does not apply." Id. § 9(b).

276. "The Court may order the person who caused a recurring environmental nuisance to compensate the plaintiff for damages caused to him by the recurring nuisance." Id. § 9(c).

277. "In an action filed against a person causing a nuisance pursuant to this law, it is not

relevant whether or not the person was negligent." Id. § 4.

278. See Legislative History, supra note 251, § 4. 279. "This section is meant to remove any doubt concerning the question of guilt. Since the law is not criminal but civil, which similar to the nuisance tort is based on the actual existence of the environmental hazard and does not require a guilty party, there is no room for defenses of lack of guilt ... the polluter usually benefits from the polluting activity and is capable of improving the means of pollution prevention and bearing the costs. Therefore it is fitting that the burden of restoration should fall on the polluter without any connection to guilt and not on the injured party." Legislative History, supra note 251, at 181, § 5.

280. "A person will not file an action according to Section 2 until 60 days after he has notified the person causing the nuisance and the Authority [the Environment Ministry] of his intention to file an action and (1) The person causing the nuisance has not taken reasonable steps to stop the environmental nuisance or to prevent its recurrence or to repair the damage as the case may be;

(2) The Authority has not taken reasonable steps within its powers to stop the environmental nuisance or to prevent its recurrence or to repair the damage as the case may be." Citizen Suits Law, supra note 268, § 5.

281.

"8(a) If the court orders restoration of the damage, he will determine the time for the restoration, and on the person who caused the damage to carry it out; the Court will issue an order as said only after he has given an opportunity to the Authority to

voice his opinion. (b) When the plaintiff or the Authority reports to the Court that repair of damage has not been carried out according to subsection (a), the Court will determine how to repair the damage after hearing testimony of the plaintiff, the Authority and the person who has caused the damage, and will charge the person who caused the damage with the cost of repairing it." Id. § 8. 282. See Legislative History, supra note 251, § 7. 283. See Citizen Suit Letter, supra note 271, at 25. See also Morag-Levine, supra note

143, at 12.

284. "[T]he areas that the bill proposes to regulate are already dealt with at various legal levels by tort law, administrative procedures in laws dealing with nuisance prevention, and criminal law." Morag-Levine, supra note 143, at 27-28.

285. "The issue under discussion involves farmers, industrialists, and other interest groups, as well as weighty economic considerations. Interest groups are liable to sue for removal of an environmental nuisance due to economic considerations of business competition. This will be relatively easy to do since the bill, as explicitly mentioned in its explanation, focuses on the behavior of the polluter and not necessarily on the damage he causes." Id. at 19. An additional argument was that the enactment of the law would lead to the "destruction of the economy." Id. at 25.

286. The Torts Ordinance, 1942, S.H. §§ 42-46. 287. On the difficulties involved in using common law torts for environmental litigation,

see generally Thompson, supra note 216.

288. See Citizen Suit Letter, supra note 271. The Justice Ministry, however, did not represent the government position, for the Environment Ministry and the Water Commission did support the bill.

289. See supra notes 283-285 and accompanying text. 290. Id. 291. Id. 292. This was similar to the legislation of citizen suits in the United States. Citizen suit provisions expressed the determination of Congress during the enactment of the environmental legislation of the 1970s to ensure enforcement of these new laws. Although the majority in Congress was pro-citizen suits, the minority opposed them on a grounds of usurpation of the executive branch's enforcement powers. The present draft of the existing citizen suit provisions in environmental US legislation is the result of negotiations between proponents and opponents of citizen suits. See Derek Dickinson, Diligent Prosecution of an Action in a Court Required to Preempt Citizen Suits Under the Major Federal Environmental Statutes 38 WM. & MARY L. REv. 1545 (1997). This determination has been interpreted as the result of "institutional mistrust" between an environmentally concerned Congress faced with the anti-environmental Nixon administration, leading to the enactment of provisions which were designated to guarantee its implementation. Congress, based on the executive's poor track record in enforcement of environmental violations of federal regulations, was wary of leaving the new legislation's implementation solely to the discretion of the executive branch. If the government would not enforce it, the public had been empowered to do it instead. See BLANCH ET AL., CITIZEN SUITS AND QUI TAM ACTIONS: PRIVATE ENFORCEMENT OF PUBLIC POLICY 14(1991).

293. See GABBAY, supra note 1, at 12; THE WATER COMMISSION, supra note 25, at pref-

ace; WATER QUALITY MANAGEMENT, supra note 25, at 270-272.

294. "The water resources in the State are public property; they are subject to the control of the State and are designated for the requirements of its inhabitants and for the development of the country." The Water Law, supra, note 18, § 1.

295. "A person's right to land does not entitle him to any right to a water resource situated on it or crossing it or abutting it; but this section does not derogate from the right of any person under section 3." Id. § 4.

296. "The right of a person to receive water from a water resource is valid as long as the use of that water resource does not lead to its salinization or depletion." Id. § 5. 297. "Every right to water is linked to one of the purposes enumerated below; the right to water ceases upon the cessation of the purposes. The purposes are: (1) domestic; (2) agriculture; (3) industry; (4) handicraft, commerce and services; (5) public services." Id. § 6.

298. "A person shall: (1) deal efficiently and sparingly with water that is in his control; (2) keep any water installations under his control in proper condition so as to prevent the waster of water; (3) refrain from obstructing or depleting any water resource; (4) refrain from the obstruction or depletion of a water resource from which he produces water." Id. § 9.

299. See id. § 11. 300. "For the purposes of this Law, 'water resources' means springs, streams, rivers, lakes and other currents and accumulations of water, whether above ground or underground, whether natural, regulated or made, and whether water rises, flows or stands therein at all times or intermittently, and includes drainage water and sewage water." Id. §§ 2, 20A.

301. "A person shall refrain from any act which directly or indirectly causes, or may cause, immediate or subsequent water pollution; and it shall be immaterial whether or not the water resource was polluted before the act." Id. § 20B.

302. "A person shall not throw, or cause to flow, into or near a water resource any liquid, solid, or gaseous substance or deposit any such substance in or near it." Id. § 20B(b).

303. See id. § 20V. The maximum fine today is 286,OOOSH (approximately $70,000) and another 10,OOOSH (approximately $2,000) for each day of an ongoing violation, or up to one year imprisonment.

304. See id. § 20U. 305. See id. § 20W. 306. See id. § 20Y. 307. Subsection 3 was not part of the original 1991 amendment, but was added to the law in 1995 to grant standing to environmental organizations. See Amendment to the Water Law, 1995, S.H.126.

within 60 days of the above notification.308

In order to advance and increase enforcement of the law, it is proposed to allow the filing of a complaint by a person directly injured from a violation of Article Al to the law, by a local authority in whose area the violation pursuant to Article Al occurred. The filing of such a complaint is contingent to prior notification to the Environment Minister, in order to allow the filing of an indictment in the name of the State Attorney General, when there is a public interest in the matter.

308. Amendment to the Water Law, 2030, H.H., 122, at 15.1.91. 309. See S.H. 1995, p. 362. 310. See Ramie and Lod (pollution of Ayalon Stream)-judicial review, filed by IUED (see HCJ 11311/93 JUED v. Interior Minister et.al); Modi'in (pollution of Ayalon stream)-judicial review, (Regional court), filed by IUED (see A.C.1874/96 IUED v. Association of Cities; Safed (pollution of streams and Sea of Galilee)-judicial review, filed by IUED (see H.C.1582/95 The IUED v. the City of Safed); Ra'anana (pollution of the Polag stream), private criminal action against the city of Ra'anana for discharging its sewage into the Polag Stream. (See Yakov Salzman v. the State Attorney General, HCJ 191/94, Takdin 94 (2) 1994); Haifa Chemicals; (pollution of Kishon stream), private criminal action, filed by IUED (see K.P.5970/94, The IUED, v. Haifa Chemicals); Or Akiba (pollution of Ta'aninim stream)-private criminal action, filed by IUED (see B.Sh.1220/98 The IUED v. the Town of Or Akiba); Israel Military Industries (pollution of groundwater and wells in area of Ramat Hasharon)C.C (Tel Aviv) 71112/99 Mor Shemgar v. Israeli Military Industries, class action filed by a group of residents of the town of Ramot Hasharon for pollution of local wells and the underlying aquifer pursuant to the Citizen Suits Law. Id.

311.

312. Id. 313. See Morag-Levine, supra note 143, at 12. 314. See id. 315. See id.; see also SHIRu BAR-DAvID & ALON TAL, HARNESSING ACTIVISM TO PROTECT ISRAEL'S ENVIRONMENT: A SURVEY OF PUBLIC INTEREST ACTIVITY AND POTENTIAL 15 (1996).

316. Since the widening of standing provisions in environmental legislation, environ-

mental organizations do not have to prove individual injury.

317. See GABBAY, supra note 1, at 366. 318. Throughout the following discussion, the Kishon Stream will be referred to or as

"the Kishon Stream" or as "the Kishon."

319. "The Kishon Stream is one of the most damaged of Israel's streams and the most difficult to restore of the coastal streams. This is because of the extent and complexity of the damage, the complexity of historical ownership along the various segments, and the pressures created by existing and planned land uses. In the past, the depleted state of the Kishon led to the assumption that there was no way to restore it. Thus, the general attitude regarding it was that of an environmental nuiSTREAM: AN sance." AvrrAL GAzrr & SHANI KLEINHAUZ, THE KISHON ECOLOGICAL SURVEY, (The Administration for Israel's Streams, 1995); see also id. at 41 ("In the lower part of the Kishon the water is the worst of all Israel's streams and is not fit for any kind of use." Id.); Larry Derfner, Polluted Waters Run Deep, JERUSALEM POST, Aug. 4, 1997, at 7 ("The most polluted river in the country is the Kishon, which collects not only insufficiently treated sewage water from Haifa but also poorly treated industrial wastewater from the local petrochemical industries." Id.). In the same article, the scientific director of the IUED is quoted as saying, "You don't want to put your hand in the Kishon River, especially near the pipes [which carry the wastewater]. There have been cases of people getting severe burns because the acidity level in the river is so high." Id.

320. See id. at 8. 321. A report of Israel's Oceanographic and Liminological Institute found that the sediments in the Kishon estuary are contaminated with mercury, cadmium, copper, zinc, lead, and nickel. Bitter Waters, supra note 179.

322. See GAzIT & KLEINHAUZ, supra note 319. 323. Located near Haifa Chemicals along the Kishon are Israel Oil Refineries, Fertilizers and Chemical Substances, Inc., Carmel Ulpinim, Inc., Vitco Chemicals, Inc., Gadiv Petrochemicals, and Gadot Biochemia Inc. In addition, the City of Haifa's sewage treatment plant discharges its overflows into this segment of the stream. See id. at 22. 324. See id. at 5, 39, 40. 325. Greenpeace International has opened a branch in Israel, making its first project putting an end to the continued heavy industrial use of the Kishon Stream and the resulting pollution of the marine environment. It has charged the government with the violation of international environmental conventions pertaining to marine pollution, to which Israel is a party. See Israeli Toxic Dumping Polluting Rivers and

Sea, DEUTSCHE PRESSE -AGENTUR, June 8, 1998, at 9.

326. See GAZIT& KLEINHAUZ, supra note 319, at 21, 42-48. 327. "In its present situation, the Kishon stream is a serious environmental hazard and a

danger to the public health." Id. at i.

328. The exception being the Ministry's lawsuit against the Gadiv Petrochemical Industries. See C.C. (Hi.) 5370/96, The State of Israel v. Gadiv Petrochemical Industries. 329. See GAZiT & KLEINHAUZ, supra note 319, at 28. The sewage discharges from the industries were carried out intentionally and in accordance with each industry's sewage disposal plan-which determined the stream as the sewage disposal site. See id. at 25. Compare this to the following case studies on Safed and OrAkiba, in which the sewage discharges were a result of dysfunctional sewage treatment facilities, not planned discharges into the streams.

330. See Laster Dissertation, supra note 3, at 127-128. 331. See id. 332. Based on author's personal knowledge. 333. See "Recommendations of the Interior and Environment Committee of the Knesset Regarding the Pollution of the Kishon," Jerusalem, July 4, 1978 (on file with author).

334. On file with author. 335. See GAZIT & KLEINHAUZ, supra note 319, at 21; see also Letter from Director,

IUED, to Committee for Land Based Sources Permits (concerning Haifa Chemicals) (June 17, 1996) (The Committee for Land Based Sources Permits functions under the authority of the Prevention of Marine Pollution from Land Based Sources Law, § 3) (on file with author); Environment Ministry Document (Dec. 24, 1995)(regarding Haifa Chemicals, "It was said by representatives of the regional office [of the Ministry] and the Haifa District Towns Association for the Environment that the sewage from Haifa Chemicals is the most polluting ... and with the years the amounts have increased in a significant manner." Id. para. A3 (on file with author).

336. See Morag-Levine, supra note 143, at 14; see also Allison Kaplan Sommer, Gen-

ger Works on His Profits and His Image, JERUSALEM POST, June 18, 1993, at 12.

337. Telephone Interview with Shoshanna Zeisel-Perry, Director of the Kishon Stream

Authority (Feb. 23, 1999).

338. See GABBAY, supra note 1, at 36-43. 339. For example, the Kishon was Greenpeace's first project in Israel; the IUED, representing the public interest, eventually brought suit against Haifa Chemicals. See supra note 325. See also Letter from Director, IUED, supra note 335.

340. Based on my personal experience and knowledge. See also David Rudge, Sarid: Haifa Chemicals Can 't Discharge Effluent into Bay, JERUSALEM POST, March 20, 1996, at 3.

341. See IUED Document (March 17, 1996)(on file with author). 342. The idea for the pipe originated in 1981, following the involvement of a new government institution-this time a local one, the Haifa District Towns Association for the Environment-and its pressure on the industry to eliminate the sewage discharges into the Kishon. Haifa Chemicals was forced to consider alternate methods of disposal. The solution it came up with was a plan that called for discharging the sewage into the sea by way of an underwater pipe, rather than into the Kishon. Pretreatment for the sewage before its discharge was not part of the plan. But, as long as no enforcement measures were taken against it, the industry had no incentives to

invest the necessary resources required to carry out the plan. Consequently, Haifa Chemicals continued discharging its sewage into the stream. GABBAY, supra note 1, at 36-43; see also GAzrr & KLEINHAUZ, supra note 319, at 21. No more was heard about this plan until 1991, when the Environment Ministry became involved and rejected it out of hand. See TAL, supra note 30, at 36; Telephone interview with Shoshanna Zeisel-Perry, supra note 337; GAzrr & KLEINHAUZ, supra note 319, at 21.

343. The industry claimed that because of the large quantities of sewage flow and the complexities of the pollution, there was no economically feasible technology to treat the sewage. GAZIT & KLEINHAUZ, supra note 319, at 22.

344. As of 1996, the plant employed 550 workers. See Rudge, supra note 340. The minister was Yossi Sarid, who did more for public awareness of environmental problems than any other minister before or since. See TAL, supra note 30, at 10 et seq. The Minister's warning to the industry was issued both directly to the industry's managers and through interviews with the media during this period. See Rudge, supra note 340. See also Telephone Interview with Elik Adler, Director of the Ministry's Coasts and Marine Waters Department (May 2, 1999). Also based on personal knowledge of author through participation in meeting with the minister.

345. See generally Letter from Director, IUED, supra note 335, at 2-3. 346. See Telephone Interview with Elik Adler, supra note 344. 347. The case against the D'shanim plant was settled in a separate consent decree in 1997, after it agreed to a strict schedule for compliance with effluent standards, subject to heavy fines for non-compliance. The consent decree also called for the establishment of an environmental fund to be used for environmental activities in the area and monitoring the Kishon Stream. See Telephone Interview with Shosupra note 337; <http://www.iued.org.il/english/topshanna Zeisel-Perry, icswater.shtml>.

348. See Letter from the UED to the Environment Minister (May 30 1994)(on file with

349. See Letter from the UED to Haifa Chemicals Industry (May 31, 1994)(on file with

350. See Telephone Interview with Shoshanna Zeisel-Perry, supra note 337. See cf. Letter from Director, IUED, supra note 335, at 3 ("Before the court Haifa Chemicals totally denied discharging sewage into the stream or the sea." Id.).

351. See Telephone Interview with Shoshanna Zeisel-Perry, supra note 337. See also Letter from Director, UED supra note 335, at 2 ("Government agencies made great efforts for Haifa Chemicals in order to shorten the procedure for ... approval of the project [discharge pipe to sea] ... the cooperation and the measures that the agencies undertook regarding Haifa Chemicals [does not [affect] its sole responsibility for finding a solution for its sewage.]" Id.).

352. The Environment Ministry's attempts to undertake litigation against the industry were stymied by the Justice Ministry opposition for technical-legal reasons: Haifa Chemicals had requested a permit pursuant to the Prevention of Marine Pollution from Land Based Sources Law to discharge its sewage into the sea, while the Ministry argued that such a permit was unnecessary since the discharge was not directly into the sea, but by way of the Kishon. However, the Justice Ministry decided that the industry's request was legally correct and issued a directive to the Ministry to consider the request and to meanwhile delay litigation. See Telephone Interview with Elik Adler, supra note 344.

353. This is solely the opinion of the author, based on her knowledge and experience of this case study, and based on the fact that Haifa Chemicals has been discharging industrial effluents in to the Kishon Stream since the 1970s. See also Letter from Director, IUED, supra note 335.

354. Haifa Chemical alone employs 550 workers. In 1995, Haifa Chemicals exported

$220 million worth of fertilizer products. Haifa Chemicals, supra note 335.

355. For example, the oil refineries. 356. This is solely the opinion of the author. 357. TAL, supra note 30, ch. 6, at 41. Haifa Chemicals was a government owned corpo-

ration until the mid 1980s. See Sommer supra note 336, at 12.

358. See id.; Bitter Waters supra note 179 (regarding the opinion of Greenpeace as to lack of government litigation: "Ben Dov [Greenpeace representative in Israel] also charges that lack of enforcement of existing laws lies at the sources of the problem. The Environment Ministry has little or no real will to deal with the issues he says, giving great weight to the possibility that workers could lose their jobs." Id.). 359. See Cr.C. (Hi.) 5970/94, The IUED v. Haifa Chemicals. Six fishing companies joined the suit as plaintiffs, necessary since the amendment to the Water Law extending standing to environmental organizations was adopted only in 1995. However, the injury they claimed was not to the actual fishing since there were no fish in this segment of the river. The claim was for damage to their boats which were anchored in the bay area and had become corroded by the hazardous sewage. See also Liat Collins, Haifa Firm Charged with Polluting Kishon, JERUSALEM POST, Dec. 22, 1994, at 3.

360. Interview with the UED attorney handling the case. 361. See id. 362. See Consent Decree between Haifa Chemicals and the IUED (Nov. 11, 1996). 363. See id. § 7. 364. See id. § 8.4. 365. See id. § 9.1. 366. See Consent Decree, supra note 362, § 5.1.

372. See Report on Safed's Sewage, (March, 1992) (prepared by head of the water and sewage department for the Ministry's northern regional office)(on file with author).

373. See id.; see also Laster Dissertation, supra note 3, at 326 n.142-143. 374. The Sea of Galilee is the major component in Israel's national water supply grid. 375. See Report on Safed's Sewage supra note 372; Laster Dissertation, supra note 3, at

261.

376. See Report on Safed's Sewage, supra note 372. 377. See generally Zalotsover Aff., Cr.C (T.A.) 16/96, The State of Israel v. The City of

Safed [hereinafter Zalotsover Aff.].

378. See Report on Safed's Sewage, supra note 372; see also ZalotsoverAff., supra note

377, § 5.

379. See id. 380. See Decision of the Northern Region Sewage Committee (Apr. 26, 1992)(on file

with author); ZalotsoverAff., supra note 377, § 3.

381. Conversation with Naftali Zalotsover. 382. See id. 383. See Letter from Ze'ev Perl to Yossi Sarid, Environment Minister (June 13, 1993) as quoted in and attached to Petition to the High Court of Justice, H.C. 1582/95, The JUED v. The City of Safed, para. 4.7.

384. See Letter from Moshe Hania to Haim Shenhar, Director, Environment Ministry's Northern Office (Apr. 20, 1994) as quoted in and attached to Petition to the High Court of Justice, supra note 383, para. 4.11.

385. Based on author's personal involvement in this case. An in-depth analysis of the ethical issues involved in an intervention by the Ministry's political level in a criminal proceeding (for the notification letters had already been sent) would be an interesting subject of research, but is outside the scope of this paper.

386. See Letters of Notification pursuant to § 2023(a) of the Water Law from Haim Shenhar, Director, Environment Ministry's Northern Office, to Moshe Hania, Mayor of Safed (Apr. 18, 1994 & Apr. 20, 1994) as quoted in and attached to Petition to the High Court of Justice, supra note 383, para. 4.10.

387. The author participated in several of these meetings. 388. See Zalotsover Aff., supra note 377.

389. This is solely the opinion of the author. The mayor was a member of the Mafdal

party, a member of Yitzhak Rabin's Labor-led government.

390. The major contractor building in that time in Safed was the Shikun vePituach company, a government corporation. See Letter from Naftali Zalotsover, former Head, Department for Water and Sewage, Environment Ministry's Northern Office, to Director, National Sewage Administration (May, 1992)(on file with author). 391. See Letter from Haim Shenhar to Gideon Tsur, Water Commissioner (Apr. 21, 1994) as quoted in and attached to Petition to the High Court of Justice, supra note 383, para. 4.12.

392. See Letter from Haim Shenhar to the Northern Region Administrator, Interior Ministry (Apr. 21, 1994) as quoted in and attached to Petition to the High Court of Justice, supra note 383, para. 4.12.

393. See Letter from Yossi Sarid to the State Attorney General 3-4 (Apr. 25, 1994) as quoted in and attached to Petition to the High Court of Justice, supra note 383, para. 4.14. Although the Ministry had already started outsourcing its litigation, officials decided in this specific case that, due to the involvement of other government institutions, it would be more appropriate if the State's prosecution handled

396. Author accompanied the Head of the Department for Water and Sewage on this fact finding trip, where the empirical evidence for this number of families was based on counting the number of obviously occupied homes.

397. This was also a reason for the Ministry's delay in initiating litigation in the Or

Akiba case study. See infra text accompanying note 475.

398. See Zalotsover Aff., supra, note 377. See Petition to the High Court of Justice, H.C. 1582/95, The IUED v. The City of Safed, supra note 66, at 11. Both before and during this period, the Ministry was receiving complaints from the public concerning the sewage discharges in the streams flowing down the mountainsides. The Nature Reserve Authorities, the government agency responsible for nature conservation, complained about the sludge from the sewage treatment plant discharging into the Amud Stream and untreated effluents flowing in the Achbara Stream, both located in the Amud Stream nature reserve. See Documents: Correspondence, Telephone Conversations, Photographs (compiled by N. Zalatsover)(telephone conservation between an official of the Nature Reserve Authority's Safed Branch to the head of the water and sewage department for the Ministry's northern region, from June 1, 1992)(on file with author); Letters from the Ranger, Nature Reserve Authority, Northern District (July 19, 1992; July 29, 1992; Aug. 23, 1993; Jan. 4, 1994; Mar. 16, 1994)(on file with author). (A question that remains open, but is outside the scope of this paper, is why the Nature Reserves Authority did not take action against the city for pollution of a nature reserve.) The Society for the Protection of Nature reported complaints both from their own officials and from hikers in the area, whose enjoyment of the area's natural beauty was destroyed by the sewage flowing in the streams. See Documents, supra note 401 (telephone conservation from SPNI official to N. Zalatsover from December 3, 1993); Letter from SPNI official to N. Zalatsover (Mar. 16, 1994)(on file with author). Complaints were also received from the Israel National Fund, owner of large tracts of forests, on damage created by the sewage discharge to the Amud stream. See Letter from the Director, Northern Region, Israel National Fund, to N. Zalotsover (June 21, 1992)(on file with author). Complaints were also received from a local kibbutz, located at the bottom of the mountain, on large quantities of sewage pervading its drinking water supply facilities. See Letter from the secretary of Kibbutz Amiad to N. Zalatsover (May 17, 1992)(on file with author). The representatives of a moshav (a cooperative farming community) that had intended to use Safed's treated effluents for irrigation complained to the Water Commission that the moshav was constrained from using it because of its low quality. See Letter from the Secretary of

399.

the Moshav to the Water Commission (June 2, 1993)(on file with author). It initially requested information from city officials on its budgetary allocations for sewage. See Letters from an IUED official to the City Treasurer (June 21, 1992; July 29, 1992)(requesting information on the city's budget for sewage infrastructure and treatment; see also Letter from Attorney for the IUED to the Mayor of Safed (Nov. 22, 1994)(entitled "Treatment of Safed's Sewage and Forwarding of Plans and Documents")(letters on file with author).

400. Telephone conversation with Naftali Zalotsover. 401. Based on author's personal involvement as the legal staff attorney handling the

case.

402. The petition was not originally against the Environment Minister, who was added later as a formal respondent to allow for the Ministry's input in the litigation. 403. See Petition to the High Court of Justice, supra note 383, at 1. In order to establish

standing, a resident of Safed was named as one of the petitioners.

404. See id.

405. See id. at 1-2.

406. See id. at 5-9, 12, 14; see also Documents, supra note 401. This was in line with the ministry policy established by Minister Yossi Sarid, the Minister at that time, that required ministry officials to forward all information requested by the public. See also TAL, supra note 30, at 30.

407. See Petition to the High Court of Justice, supra note 383, at 1.

408. See id. 409. See Order Nisi, Mar. 12, 1995, H.C 1582/95, UED v. City of Safed [hereinafter

Order Nisi].

410. See supra text accompanying notes 362-366.

411. See Order Nisi, supra note 409. 412. See id. at para. 3. 413. The investigation had started in 1993. See Letter from Ministry Investigator to

Head of Sewage Department, Safed (Aug. 5, 1993)(on file with author).

414. See Cr.C. (Tiberias) 155/96, The State of Israel v. The City of Safed.

415. See Cr.C. (B.S.) (Tiberias) 16/96, The State of Israel v. The City of Safed. 416. In granting the order, the court remarked, "Just as it is inconceivable that a new residential area will be used without it being connected to the roads, water or electricity in a manner that will answer the needs of the residents, there is no reason to allow its use without it being connected to a sewage purification system. The only difference is that without electricity, water and roads the residents won't agree to take possession of their homes and consequently the contractors and developers building those residential areas will not be able to market them. The lack of proper sewage purification facilities does not prevent the marketing and occupation of homes and the damage caused as a result of the lack of sewage infrastructure is damage to society as a whole, but does not constitute a nuisance to the individual resident. Perhaps because of this, the installation of sewage purification facilities does not receive the high priority, unlike water, electricity and roads." Id. The order was granted pursuant to Section 20W(a) of the Water Law, that authorizes the courts to "issue a temporary order to prevent, stop, or reduce water pollution, against those suspected or accused of causing water pollution....Id. The moratorium excluded the 80 families that were already occupying their homes. The Ministry's original strategy had been to prevent total occupation, a strategy that was frustrated by the minister's relenting to political pressures and agreeing to allow 80 families to take possession of their homes. See id.

417. In July 1998, the city completed its bylaw for sewage, a prerequisite for receiving government funding for sewage. It issued a tender for upgrading its sewage treatment facilities, selected a contractor and is presently carrying out the work. The deadline for completion is June 2000. See Letter from the Attorney representing Safed to Rachelle Adam (May, 1998)(on file with author); see also infra text accompanying note 436 (for similar problems facing Or Akiba).

418. See High Court Decisions, June 1, 1998; Sept. 7, 1998; Sept. 6, 1999 (on file with

419. Government litigation against municipalities is always politically sensitive, particularly in a small, multi-party state such as Israel, where government coalitions tend to be shaky for the most part, thus leaving room for the trading of favors with all stakeholders, whether large or small. See, e.g., infra Or Akiba Case Study.

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420. The following is based on author's personal experience as the Environment Minis-

try's staff attorney responsible for the Or Akiba case.

421. The translation of the stream's name is "Crocodile Stream" and derives, according to popular legend, from the Roman occupation of what is today Israel and was then known as Judea, over two thousand years ago: the Romans imported crocodiles from Egypt into Judea, in order to have supply on hand for their favorite sport of crocodile wrestling. The crocodiles were kept in the stream where they multiplied and adapted to their new habitat. Crocodiles could be found in the stream until about 100 years ago (as told to the author by the Nature Reserve Authority's ranger in charge of the Taninim Stream and its surrounding area).

422. See 1972, K.T. 2881, 1510; 1993, K.T. 5483, 119. 423. See Letter of Notification from the IUED to the Environment Minister and the Mayor of Or Akiba (Jan. 13, 1998)(on file with author); Affidavit of Mr. Robert Reuven, Director of the Ministry's Haifa Office (July 23, 1998)(on file with author).

424. See Affidavit of Mr. Robert Reuven, supra note 426. 425. See the private criminal action filed in Cr.C. (Hi.) K.V. 22/98, The IUED v. The

Town of Or Akiba [hereinafter Private Criminal Action].

426. Interrogation of the Mayor of Or Akiba, Investigative File (on file with author).

427. See GABBAY, supra note 1, at 36-42. 428. Based on author's personal experience and knowledge. 429. This policy is also based on the advice of the Ministry's legal department, stating that courts would not look favorably on government prosecution of municipalities after years of neglect.

430. Based on author's personal experience and knowledge. 431. The director and the head of the department for water and streams for the Ministry's Haifa Regional Office-in addition to the voluminous amount of correspondence sent to the town's mayor-participated in a series of meeting with the Mayor and other town officials, as well as with representatives from the Interior Ministry, the National Sewage Administration and the sewage treatment plant in Hadera. The purpose was to create collaboration and cooperation between the various institutions to hasten the hook up of Or Akiba to the treatment plant, and specifically to attempt to solve the funding problem. See Interministerial Memorandum (Aug. 25, 1997); Letter from Interior Ministry Official to the Head of the Sewage Infrastructure Administration (Nov. 19, 1997); Letter from Interior Ministry Official to Head of the Hadera Stream Sewage Treatment Plant (Sept. 8, 1997); Interministerial Memorandum (Dec. 30, 1997); Letter from Interior Ministry Official to Head of the Hadera Stream Sewage Treatment Plant (Jan. 15, 1998)(all documents on file with author).

432. See Letters, supra note 434. 433. See Letter of Notification from the Director, Environment Ministry's Haifa Re-

gional Office, to the Mayor of Or Akiba (Sept. 2, 1997)(on file with author). 434. See Letter from Interior Ministry Official to the Head of the Sewage Infrastructure Administration (Nov. 19, 1997); Letter from Rachelle Adam to Head of Investigations, Environment Ministry (Apr. 6, 1998)(on file with author).

435. The meeting took place in December 1997. The Mayor requested that the Ministry's investigators "let up on him," a request which was granted by the Minister. Similar to the Safed case study, the Mayor successfully manipulated his political affiliations with the coalition government by achieving a moratorium of three months for investigations or litigation against him. See id.

436. This required preparing a municipal bylaw-and receiving the Interior Ministry's approval for it-that would allow the town to impose taxes on its residents to fund the costs of the hook up to the regional sewage plant. The bylaw was also a prerequisite for receiving funding from the national government. See Letter from Head of the Hadera Stream Sewage Treatment Plant (Jan. 5, 1998)(on file with author). 437. The following is based on author's participation in this meeting that took place in

the office of the Director for Water Quality and Streams Department.

438. See id. 439. The town's mayor defied the summons for interrogation issued by the Ministry's investigators and simply did not show up. Although a subpoena could have been issued, ministry investigators were hesitant about doing this, fearing political ricochets. This incident highlights the problems of criminal enforcement-which requires a much higher standard of proof in comparison to civil enforcementparticularly against municipalities. This subject, however, is outside the scope of this paper.

440. Based on author's personal experience.

S • 446

441. See Letter of Notification from the IUED, supra note 423. 442. This letter was meant to strengthen the IUED's case, and was intended as an addi-

tion to the previous one.

443. Based on author's personal knowledge. 444. See Letter from Rachelle Adam to Head of Investigations, Environment Ministry (Apr. 6, 1998) (on file with author), for a comparison of the dates action was taken.

445. Based on author's personal knowledge and experience. 446. As the Ministry's legal officer dealing with the case, author was in daily contact with IUED officials. The Ministry's policy was one of full disclosure and the IUED was kept up to date on the progress of the investigation. See Telephone Conservation with the IUED's Attorney (Mar. 1998).

447. See Telephone Conservation with the Director of the IUED (Apr. 1998). 448. As mentioned above, supra note 435, the investigation was held up by the Mayor of Or Akiba's repeated refusal to report for interrogations by the Ministry's investigators. The ministry investigators were experiencing difficulties completing their

work. Consequently, the file had not yet reached the Ministry's legal office.

449. See Telephone Conservation with the IUED's Attorney (Mar. 1998).

450. See id. 451. See id. 452. See Private Criminal Action, supra note 425; Request for a Temporary Order, §§

1-2, (B.S.) 1220/98, The IUED v. The Town of Or Akiba.

453. See Request for a Temporary Order, supra note 452, at §§ 1-2. 454. See id. § 3. 455. See the later request for a temporary order that was filed on May 28, 1998 and the court's decision from July 15, 1998 regarding it (C.Cr. (Hi.) 1989/98, The UED v. The Town of Or Akiba), both of which explain the convolutionary series of events that led to the dismissal of the IUED's suit, but that are not relevant to the issues discussed in this paper.

456. The author personally received the file. 457.

Indictments against local governments must receive prior approval by the State Attorney General. See Directive of the State Attorney General, No.500.08 (on file with author).

458. See Letter from the Legal Office to the Office of the Attorney General (May 21, 1999); Letter from the Attorney General's Assistant to the Legal Office (June 16, 1999)(on file with author).

459. See Letter of Notification from the IUED, supra note 423. 460. No ministry meeting took place regarding this decision. It was simply assumed that with the completion of the investigation, the Ministry would file it. This is in line with ministry policy to increase the number of water pollution enforcement cases. Thus, officials did not want to relinquish a file to the IUED.

461. "It should be indicated that the IUED represents the public interest in environmental issues of great consequence both to the government and to the public. Cooperation and good working relations exist between the organization and the Ministry, and we want to encourage them in their various activities in representing public interests in legal proceedings ... there is no doubt that both the State and the organization represent an issue of extreme importance-stopping the pollution of Israel's streams." Letter from Legal Staff to the State Attorney General (June 29, 1998)(letter on file with author).

462. See id.

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463. See id. 464. See id. 465. See id. The IUED's position on this issue revealed the problems faced by nonprofit organizations in preparing cases for court, particularly in criminal actions which require a heavier burden of proof than civil actions. The government uses its own authorized investigators to conduct the necessary investigations and employs experts from a wide variety of areas that write professional opinions and testify in court as part of their job. These resources are not usually available to non-profit organizations, that have to pay for these services. They also do not have authority to conduct criminal investigations. A question that arises is if the State Attorney General had decided to let only the government handle the suit and the court would have subsequently dismissed the IUED's case, would the UED have been able to sue the government for recovery of costs in preparing the case.

466. Again for procedural reasons, the court accepted the defendants' preliminary argument for a summary dismissal of the case on the grounds that, since the Haifa court had dismissed the private criminal action, there was no cause of actionthere was no basis for the motion for an injunction. If the IWED wanted to pursue the case, it would have to refile. The court rejected the IUED's argument that the dismissal was on merely procedural grounds, pointing out that in a criminal proceeding, due process must be strictly observed.

467. The State Attorney General's Office was notified by telephone, and it was decided that no answer was needed to the letter from June 29. From the conversation it was

possible to understand that the first solution raised in the letter-for the government and the IUED to handle the case together-had been viewed as a viable option. However, there is nothing in writing to verify this since the issue had become moot.

468. See Cr.C. (Hi.) 3254/98, The State of Israel v. The Town of Or Akiba. At the first hearing, the respondents raised preliminary arguments for dismissal, claiming estoppel: the lawsuit filed by IUED-even though it was later dismissed by the court-prevents any further lawsuits against the town for offenses of water pollution from sewage discharges. Another argument was that in a criminal action the prosecutor could not file charges if it places the defendant in double jeopardy, for the defendants had already been in danger of conviction by the previous criminal action brought by the UED, the fact of it being dismissed being of no relevance. The court did not decide on these arguments, but instead eventually persuaded the sides to reach an agreement, as noted above.

469. As relayed to the author by the Ministry's prosecutor handling the litigation from

March 21, 1999.

470. See id. 471. See id.

472. See id. 473. See Notification to the Court (June 16, 1999)(on file with author).

474. See Letter of Notification from the IUED, supra note 423. 475. These two factors for the delay in litigation are of course interconnected-the investigators' efforts were commensurate to the Mayor's success in obtaining extensions from the minister to hook up to the sewage plant in Hadera-another example of political influences and environmental ethics in government. See also supra notes 435, 448 and accompanying text.

476. See GABBAY, supra note 1, at 9-11. 477. See TAL, supra note 30, at 55 (quoting the Ministry's director general at that time: "Green organizations will no longer have free run of Israel's Ministry of Environit is completely unacceptable for them to be directly involved in the Minment ... istry's decision making as they were under the previous Administration [i.e., Yossi Sarid]."). In the United States, the Clean Water Act provides a solution for this situation by means of "intervention." The Environmental Protection Agency would be able to intervene in the case, call its own witnesses and make its own arguments. See Clean Water Act 33 U.S.C. 1365(b). See generally Keithline, supra note 175, at ch. 3.

478.

479. See Landau, supra note 234, at 21-26. 480. The Basic Law (The Judicature), supra note 235, § 15d(2). 481. "Professor Zamir [Justice of the Supreme Court] defines activism as judicial willingness to give a judicial solution to a new problem. In accordance with Professor Zamir's opinion, 'The activist judge tends more than his non-activist colleague... to say: I am ready to discuss and decide substantively.' In line with this criteria, I am a radical activist. In my view, every problem is justiciable, ... and only in special and unusual incidents am I ready to view a controversy as unjusticiable. Therefore, I was ready in the past to discuss the legality of not drafting yeshiva students

into the army and the legality of the Knesset's decisions. I was ready to decide the legality of a political agreement and the legality of a will that contradicts public opinion. In these cases and others, in the past judicial review had not been used, while in my opinion ... there are no areas that law is not involved in them." Aharon Barak, Law, Justiciability and Judicial Activism, 17 IYuNEI MISHPAT 475, 498 (written by the Chief Justice of the Supreme Court)(free translation); see also Landau, supra note 234, at 203-204.

482. See id. at 23; Amos Shapira, The Israeli Supreme Court and Human Rights, in

483.

Landau, supra note 234, at 134-135. In comparison, § 20W(3) to the Water Law specifically authorizes courts to grant such orders. In the Safed case, the magistrate court in Tiberias issued a moratorium order pursuant to the Environment Ministry's request. See supra text accompanying notes 415-416.

484. See The Basic Law (The Judicature), supra note 235. 485. See id. The Basic Law (The Judicature) authorizes only administrative remedies. 486. As illustrated by the Safed case. The petition was filed in 1995, and although the initial hearing was within a few months of that date, there have been only three successive hearings, the last one on September 6, 1999. However, based on author's personal experience from participating in the court hearings, the Court's heavy schedule does not seem to affect its determination in continuing to monitor the case.

487. See supra text accompanying note 418.

•

488. See Alon Tal, On Protected Values and Environmental Crimes, 40 THE PRAKLIT

413 [hereinafter Environmental Crimes].

489. See supra text accompanying note 367. 490. See Environmental Crimes, supra note 488, at 39. 491. See lines 20-22 from the court's decision on July 15, 1998, in C.Cr. (Hi.) B.S. 1989/98, The IUED v. The Town of Or Akiba, where the judge stated that "I have mentioned that we should not regard this as merely formalistic. First of all the issue is the procedural rights of defendants in a criminal proceedings and as such we must act with a higher degree of care than would be justified in a civil proceedings." This was the court's answer to the JUED's argument that its omission to comply with § 71 of the Criminal Procedure Act is merely formal and as such should not require a delay in the court hearing for an injunction against Or Akiba. See also supra note 466.

492. See supra note 439. 493. Criminal Procedure Act (Consolidated Version), 1992, S.H. 71. 494. See id.

495. See id. 496. See supra note 466, § 1. 497. See C.C. (T.A.) 71112/99, Mor Shemgar v. Israeli Military Indus. To the best of the author's knowledge, this is the only incident of use of the law for water pollution, nor has it been used frequently regarding other categories of environmental pollution.

498. See generally supra text to accompanying note 127 (for the Environment Ministry's reaction regarding this lack of use of the law); supra text to accompanying note 246 (for the Supreme Court's reaction); infra text accompanying note 514 (for that of the environmental organizations).

499. See supra text accompanying notes 346, 400, 437-440. 500. See supra text accompanying note 401. 501. See supra text accompanying note 370 502. See supra text accompanying notes 385-388. 503. See supra text and accompanying notes 352-358.

504. See supra note 439. 505. See supra text accompanying notes 241-309. 506. See supra text accompanying notes 234-236, 482-487. 507. See Hillel Shuval, Conclusions: The Impending Water Crisis, in WATER QUALITY

MANAGEMENT, supra note 25, at 315.

508. See id.

509. See supra note 310. 510. See BAR-DAVID & TAL, supra note 315 , at 17. 511. See supra text accompanying note 310. 512.

In a Justice Ministry opinion as to the government's position on the Prevention of

Environmental Nuisances Law (Citizen Suits), in answer to the argument of the Bill's proponents that citizen suits are considered a successful enforcement mechanism in the United States, it was asserted that "the comparison to the United States in which such lawsuits are common is not an accurate one, and that is in light of the ratio between the number of lawsuits per person in Israel, compared to the number of lawsuits filed by the American citizen. The Israeli citizen anyway files a great number of lawsuits and thus new incentives for filing additional lawsuits should not be created." This was the position of the Justice Ministry's Civil Division, who felt that since Israeli society was such a litigious one, additional incentives specifically for environmental litigation were not necessary. The Civil Department also perceived the Bill as superfluous, in light of existing legislation that recognizes actions both for damages and injunctions. Moreover, the Civil Department felt that enactment of the law would "bring about destruction of the economy." Citizen Suit Letter, supra note 271, at 25.

513. This statement is based on the author's personal experience in the Environment Ministry, enforcing the Water Law. Citizen suits were, for the most part, viewed as competition, the Ministry's goal being to increase its own level of enforcement in water pollution issues. Some ministry officials, especially the enforcement officials, regarded the IUED as a nuisance, and were unwilling to disclose information to them upon request. However, there were exceptions, as evident from the case studies discussed below. See also supra text accompanying note 461.

514. This statement is based on the author's personal knowledge of the case. The only complaint that the Ministry received was that of the farmers whose produce was confiscated and destroyed by the Health Ministry. See infra text accompanying note 663. It can be assumed that other complaints concerning the pig farms also would have found their way to the Environment Ministry.

515. See BAR-DAVID & TAL, supra, note 315, at 18; see also Bitter Waters, supra note 179 (quoting a statement of Greenpeace representative in Israel regarding the difficulties that his organization was experiencing in estimating quantities and contents of pollutants: "The problem is that there is no Freedom Of Information Act in Israel, so the reports which do exist are not available to the public.").

516. See Laster Dissertation supra note 3, at 215-218. For a description of the various

administrative authorities, see supra note 109.

517. See Laster Dissertation supra note 3, at 240. 518. See The Water Law, supra note 18, § 20K(5)("The Water Commissioner will submit a report of discharge permits that he has issued to the Economics Committee of the Knesset at dates that the Committee will determine, and at least once a year."); Id. § 20K(6)("The list of discharge permits issued by the Water Commissioner will be open to the public without charge."). The Knesset has also been lax in not using its oversight powers over the Water Commissioner and has refrained from addressing the failure in issuing the permits.

519. See

JEFFREY MILLER, CITIZEN SUITS: PRIVATE ENFORCEMENT OF FEDERAL

POLLUTION CONTROL LAWS 1 (1987).

520. See ENVIRONMENTAL LAW INSTITUTE, CITIZEN SUITS: AN ANALYSIS OF CITIZEN

ENFORCEMENT ACTIONS UNDER EPA-ADMINISTERED STATUTES 8 (1984).

521. See Arne Leonard, When Should an Administrative Enforcement Action Preclude a

Citizen Suit Under the CWA ?, 35 NAT. RESOURCES J. 555, 558-559 (1995).

522. See id. 523. See id. 524. See id. 525. See id. 526. Up to 1976, 12 orders had been issued against industries, but they had only partially been enforced. See Laster Dissertation, supra note 3. From 1990, because of the author's frequent contact with Water Commission officials, author assumes that additional ones would have been brought to her attention. However, the author does not know of any issued during those years. Moreover, following a policy of cooperation with the Environment Ministry, the Water Commissioner has recently agreed to issue restoration orders upon request of the Ministry, thus issuing one against the City of Rechovot for discharging sewage into the Sorek Stream.

527. See supra text accompanying note 334.

528. See id. 529. See Telephone Interview with Shoshanna Zeisel-Perry, supra note 337. 530. See supra text accompanying note 499. 531. See supra text accompanying note 419. 532. Based on the author's personal knowledge, the IUED attained a substantial amount of information-both verbal and written-regarding the water pollution caused by Or Akiba from officials in the Ministry's Haifa Regional Office, much as they obtained information from the officials in the Safed case study. 533. As relayed to the author by the IUED's attorney handling the case.

534. See supra text accompanying note 449.

535. See Freedom of Information Act, supra note 237, § 21. 536. See id. §§ 3-7. 537. See supra text accompanying notes 230-292. 538. See supra text accompanying note 255. 539. See supra text accompanying note 269. 540. A solution might be found in the arrangement adopted by the US Congress in the Clean Water Act. In order to encourage citizen suits on the one hand, while avoiding their misuse on the other, the Clean Water Act provides for attorney fees for the plaintiff whether or not he prevails in the suit, while their misuse is checked by also allowing attorney fee's for the defendant if the citizen suit is judged frivolous or harassing. 33 U.S.C. § 1365(d). In response to the author's e-mail to the founder and former director of the IUED questioning why no citizen suits for water pollution had yet been filed under the Citizen Suits Law, she received the following reply: "There are so few suits filed [generally] because ... you have to be crazy to file under this law.... [H]ere there is a balancing of economic interests and there is no possibility of getting any pitzuim [Hebrew for damages-R.A.]." E-mail from Dr. Alon Tal (Feb. 3, 1999)(on file with author). Furthermore, in a survey of Israel's environmental organizations, 58% indicated that lack of litigation, a major obstacle in their work, stems from a lack of budget. BAR-DAVID& TAL, supra note 315, at 18.

541.

542. See supra text accompanying notes 359, 363, 365. 543. See supra text accompanying notes 364. 544. See Thompson, supra note 216, at 1368. See generally SAX, supra note 176, at

193-211.

545. "No natural resource was as important to Zionism as water.... Water resource development was both a symbol of technology's unlimited potential and the prosperity that Jewish return could bring the land." TAL, supra note 30, ch. 6 at 1.

546. See also MORDECCHAI YAKOBOVITZ, WATER IN ISRAEL 69 (1971) (Hebrew). Herzl authored another book, TEL Aviv, in which he also described his plans for extensive agricultural irrigation. See Y. PARUSHANSKY, WATER IN ISRAEL 24 (1964) (Hebrew).

547. See ISRAEL-A COUNTRY STUDY, supra note 92, at 177. 548. See WATER QUALITY MANAGEMENT, supra note 25, at 6; Galnoor, supra note 54, at

S549

293.

549. Yishai, supra note 65, at 211. The emphasis on increase of population during Israel's early history intertwined with both the idealistic Zionist dream of an "ingathering of exiles" as well as with more practical security considerations, Israeli being outnumbered and surrounded by hostile Arab neighbors. See id.

550. See Galnoor, supra note 54, at 293, 298; see also TAL, supra note 30, ch. 6, at 1; PARUSHANSKY, supra note 546, at 3 (praising the country's utilization of its water resources: "The intense demand for water from the new agriculture, the municipalities and industry, a result of the country's rapid growth, resulted in amazing feats of water engineering ... illustrating how man is capable of overcoming natural scarcity.... "Id.).

551. See generally TAL, supra note 30, ch. 6, at 1-3, 11, 59. See also Sachs, supra note

59, at 14.

552. See Sachs, supra note 59, at 14. 553. See E-mail Discussion with Alon Tal (Mar. 13, 1999); see also TAL, supra note 30,

ch. 6.

554. See Galnoor, supra note 54, at 293, 298. See generally STATE COMPTROLLER, supra

note 43, at 37-46.

555. See Galnoor, supra note 54, at 298, 304; see also TAL, supra note 30, ch. 6, at 25-

26.

556. TAL, supra note 30, ch. 6, at 2. 557. See id. 558. See also The Water Law, supra note 18, § 1 ("The water resources in the State are public property; they are subject to the control of the State and are destined for the requirements of its inhabitants and for the development of the country."); Id. § 6 ("Every right to water is linked to one of the purposes enumerated hereunder; the right to water ceases upon the cessation of the purpose. The purposes are: (1) domestic: (2) agriculture; (3) industry; (4) handicraft, commerce and services; (5) public services. Nature conservation is not mentioned." Id.).

559. TAL, supra note 30, ch. 6, at 2. 560. See id. at 10; Zaslavski, supra note 3, at 9; SHMUEL AvrTSUR, THE WATER

RESOURCES OF ERETZ ISRAEL 116-117 (1992).

561. TAL, supra note 30, ch. 6, at 11. 562. See id.; GABBAY, supra note 1, at 39-40. 563. See supra text accompanying note 179.

564. See GABBAY, supra note 1, at 40; supra note 179. 565. See TAL, supra note 30, ch. 6, at 11. 566. See Yishai, supra note 65, at 211. 567. See generally TAL, supra note 30, ch. 2. 568. See id.; see Galnoor, supra note 54, at 293, 298. 569. See Ya'acov Vardi, National Water Resources Planning and Development in Israel-The Endangered Resource, in WATER QUALrrY MANAGEMENT, supra note 25, at 38 ("[I]t was the farmers who pioneered the development of the economy, by introducing irrigated, advanced technology agriculture into a desert-like area. The development of other branches of the economy followed only later. This sequence of events has secured for the farmers a powerful position at all political decisionmaking levels." Id.); see also ISRAEL-A COUNTRY STUDY, supra note 92, at 190191.

570. "The development of water resources solidified a healthy national myth that glorified farming as the most honorable of Jewish occupations after a two millennia exclusion from tilling the land." TAL, supra note 30, ch. 6 at 59; see also Galnoor, supra note 54, at 293, 298; Zaslavski, supra note 3, at 9.

571. See generally TAL, supra note 30, ch. 2.

572. See id.; Zaslavski, supra note 3, at 9. The desire to create civilization out of wilderness is not exclusive to Israel. The water policy of the United States federal government for the western states has been based on the ideology of making the desert "bloom like a rose." See ANDERSON & LEAL, supra note 219, at 100. Americans, occupied with making a living with no leisure time, viewed their natural resources not for their aesthetic value (which they didn't have the time to enjoy anyway) but as sources of livelihood, while wilderness was an entity to be controlled and transformed into productive land. Only with the growth of per capita income did Americans gain the leisure time necessary in order to appreciate their natural resources. See id. at 45. This is all the more true for Israel, for the harsh economic conditions coupled with high taxes and serious security concerns rendered Israelis indifferent to their natural environment. See infra text accompanying note 621. Together with its anthropocentric view of nature, many Israeli immigrants originated from societies that were both unconcerned with environmental issues and lacked recreational cultures. Thus, nature in general, and streams in particular, held no recreational value. See Yishai, supra note 65, at 212.

573. See ISRAEL-A COUNTRY STUDY, supra note 92, at 59-60. 574. See id. 575. See Yishai, supra note 65, at 211. 576. See supra text accompanying notes 147-149. 577. See Safed and Or Akiba case studies above. 578. See TAL, supra note 30, ch. 6, at 27-29; Laster Dissertation supra note 3, at 203,

240.

579. See supra text accompanying notes 147-162. See also case studies above. The his-

toric role of the government in permitting sewage discharges into streams is a subject well worth pursuing as a separate research topic, but is out of the scope of this paper.

580. See GABBAY, supra note 1, at 5. 581. See id. 582. See id. at 218-219. 583. See id. 584. See Yishai, supra note 65, at 213. 585. See id. 586. See generally ISRAEL-A COUNTRY STUDY, supra note 92, at 35-38. 587. See Yishai, supra note 65, at 213. 588. See Yishai, supra note 65, at 212, 213. 589. See id. See also Sachs, supra note 59, at 13.

590. See id. at 213-214. 591. See id. at 212. 592. "The notion that 'it is the government's duty to clean up the place' is still rooted in

among many sectors of Israeli society." Id.

593. "These features of the political system served as constraints to environmental politics, blocking the articulation of demands by interested publics, the emergence of sustaining ideologies and the development of high responsive capabilities." Id. at 214.

594. See ISRAEL-A COUNTRY STUDY, supra note 92, at 163-165, 226-227. 595. See Galnoor, supra note 54, at 307. 596. See id. at 308. 597. See Sachs, supra note 59 at 14- 15; TAL, supra note 30, ch. 6, at 54.

598. Galnoor, supra note 54, at 309. 599. "In contrast to over a thousand groups registered in Great Britain and tens of thousands operating in the United States, there are in Israel ... only four environmental associations." Yishai, supra note 65, at 209; see also Morag-Levine, supra note 143, at 6. The existing environmental organizations in 1979 were the SPNI, the Council for a Beautiful Israel, Life and Environment, and the Association for the Prevention of Noise and Pollution ("Malraz"). See also GABBAY, supra note 1, at 361.

600. "Thus, instead of being a grassroots movement protesting against social malfunctions as well as environmental deterioration, the Israeli groups seem to have been established from 'above' by elite initiation and action." Yishai, supra note 65, at 210.

601. See id. 602. As an example, Yishai discusses the case of one organization that initially adopted an anti-government platform and publicly challenged government officials on envi-

ronmental issues, but changed to a more cooperative strategy after being criticized by its funders for its aggressive behavior. See id.

603. The organization was founded in 1954 and today has a membership of 36,000 families and a budget of NIS 113.5 million. BAR-DAVID & TAL, supra note 315, at 13-15.

604. See Morag-Levine, supra note 143, at 8-9; GABBAY, supra note 1, at 204, 362. 605. See GABBAY, supra note 1; see also Lake Kinneret, supra note 84, at 293-294. 606. See Yishai, supra note 65, at 210; Morag-Levine, supra note 143, at 9; GABBAY,

supra note 1, at 362.

607. See Morag-Levine, supra note 143, at 9, 17. 608. "For the first three decades of its existence SPNI was a quintessential corporatist, insider organization. Those who created it were a small group of individuals with extensive connections in the government, army and the kibbutz movement. Funding came from government sources.... "Id. at 9.

609. See id. 610. "In accordance with corporatist models of interest organizations, SPNI early on

sought formal recognition from the state.... "Id. at 9 (citation omitted).

611. See id. 612. See Yishai, supra note 65, at 211; Morag-Levine, supra note 143, at 17-18;

ISRAEL-A COUNTRY STUDY, supra note 92, at 38.

613. See Yishai, supra note 65, at 211. 614. See Morag-Levine, supra note 143, at 17. 615. See id. 616. See GABBAY, supra note 1, at 16. 617. For example, see H.C. 3476/90, The Society for the Protection of Nature v. The National Planning Committee (VOA transmitting station); H.C. 8712/96, The Society for the Protection of Nature v. The Environment Minister (conservation of the Hula Lake); H.C. 3611/95, The Society for the Protection of Nature v. The Police Minister (Beit Gean). ISRAEL-A COUNTRY STUDY, supra note 92, at 138.

618. 619. See id.; TAL, supra note 30, ch. 6, at 54. 620. Zaslavski, supra note 3, at 4.

621. Hillel

I. Shuval, Goals of Water Quality Control in WATER QUALITY MANAGEMENT, supra note 25, at 1; Morag- Levine, supra note 143, at 8. While these considerations must have contributed to a certain extent, it should be pointed out that security, economic, and social considerations are frequently used as reasons both by government institutions and private citizens for why Israel did not and still does not direct attention to certain issues, and specifically not environmental ones.

622. See supra text accompanying notes 313-314. 623. See supra note 617. See also GABBAY, supra note 1, at 361-362. 624. See supra text accompanying notes 313-314. 625. The only lawsuits dealing with water pollution filed by an non-governmental entity besides the IUED were the private criminal case against the city of Ra'anana for discharging its sewage into the Polag Stream. For example, see H.C. 191/94, Yakov Saizman v. The State Attorney General, 1994 (2), and the civil case against Israeli Military Industries for pollution of groundwater and wells in area of Ramat Hasharon, C.C. (T.A.) 71112/99, Mor Shemgar v. Israeli Military Industries, a class action filed by a group of residents of the town of Ramot Hasharon for pollution of local wells and the underlying aquifer.

626. As brought to the author's attention by environmental organization officials. In 1996 there were 43 such organizations. See BAR-DAVID & TAL, supra note 315, at 13; GABBAY, supra note 1, at 361-369, 377-381.

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627. "The mere number of environmental groups [43] and the scope of activities in recent years reveals an increase in the public's ecological awareness and citizen capabilities." BAR-DAVID & TAL, supra note 315, at 12.

628. BAR-DAVID & TAL, supra note 315, at 19. 629. See id. at 20. 630. See id. at 19. 631. "Israeli environmental law has recently been amended to allow for much broader public participation in environmental enforcement. Public standing in Israel's Supreme court is more liberal than in the United States. Yet, environmental law remains completely underutilized, relative to its potential as a tool for preservation and pollution prevention. The Abatement of Nuisance (Civil Suits) Law [The Prevention of Environmental Nuisances Law (Citizen Suits)] offers a good case in point. Enacted in 1992, the law heralded as a revolution in public interest standing, empowering the public to sue against almost any conceivable environmental hazard, from radiation to solid waste. Yet the statute has seen extremely limited use, almost exclusively in litigation by Adam Teva T' din jHebrew for lUED]." Id. at 21. Compare supra text accompanying note 283. However, the survey does not analyze the reasons for the lack of use of the Citizen Suits Law.

632. See id. at 16. 633. See generally WATER QUALITY MANAGEMENT, supra, note 25.

634. See Galnoor, supra note 54, at 288. 635. See Wiener, supra note 32, at 28. 636. See WATER QUALITY MANAGEMENT, supra note 25, at 38; Zaslavski, supra note 3,

at 10.

637. See Laster Dissertation, supra note 3, at 112. 638. The Sorak Stream carries Jerusalem's sewage, the Yarkon carries Ramat HaSharon's, the Polag Stream that of Ra'anana, the Alexander Stream carries the sewage of Kfar Yonah, the Taninim that of Or Akiba, the Kishon that of the petrochemical industrial complex. See Laster Dissertation, supra note 3, at 105-112; GABBAY supra note 1, at 39-43; Ministry of the Environment, Life to the Rivers, ISR. ENV'T BULL. 2-8 (Autumn 1995). 639. See supra text accompanying note 5. 640. See supra text accompanying note 321-325. 641. See Report on Safed's Sewage supra note 372, at 82. The individual cess pits were

polluting the groundwater underneath the cities.

642. The Taninim Stream empties into the Mediterranean. Thus, in theory, Or Akiba was also in violation of the Prevention of Land Based Sources Law in that it was discharging into the sea without a permit.

643. See supra text accompanying notes 546-583. 644. For example, the Director of the Legal Department in the Environment Ministry recalls swimming in the Kishon stream in the 1950s (in a segment upstream from the petro-chemical industries that is today polluted by municipal sewage discharges). See also Laster Dissertation, supra note 3, at 222, n.255 (a Health Ministry official recalls swimming in the Hadera stream before the establishment of a paper mill in 1953).

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645. The exception would be the Sea of Galilee, a large, freshwater lake in northern Israel. Serving, together with the coastal and mountain aquifers, as Israel's water supply system, the Sea of Galilee historically has enjoyed more protection than Israel's streams. Despite this, it too suffers from pollution, a major source being the use of ships and boats in its waters. As discussed above, a proposal to prohibit motorboats and skijets, and to limit the number of ships, has been held up by the Transportation Ministry. See supra text and accompanying notes 85-91.

646. This statement needs qualifying, for there is public boating at the mouth of the Yarkon Stream. A rowing club used the Kishon until the Environment Ministry issued a warning as to the dangers involved. Last year the Ministry requested that municipalities located along polluted streams put up signs warning the public as to the dangers ensuing from contact with the water. See Letters from the Director General, Environment Ministry, to municipalities (June, 1998)(on file with author). 647. However, Israeli streams-again, with the exception of the extremely polluted coastal ones---do serve as hiking trails, a popular Israeli sport. One example is the Amud Stream near Safed, polluted by the city's sewage discharges. The stream is located in the midst of a nature reserve and is used as part of a hiking trail.

648. See Zaslavski, supra note 3, at 10, for the extraction amounts from each water re-

source.

649. The citizen suit against the cities of Ramle and Lod dealt with the pollution of the Ayalon Stream, as did the citizen suit filed against Modi'in. The citizen suit against the city of Ra'anana addressed the pollution of the Polag Stream from the city's sewage. However, compare the class action filed by a group of residents of the town of Ramot Hasharon for pollution of local wells and the underlying aquifer pursuant to the Citizen Suits Law. See also supra text accompanying note 310.

for years, the loss of Israel's streams due to pollution was not noticed by the media, the public, or the government. Consequently, no one took any measures to restore them.

H. "Tragedy of the Commons"

The link between the degradation of Israel's water resources and lack of property rights to water pulls together the other themes discussed above. The first section of the Water Law declares that "the State's water resources are public property; they are subject to the control of the State and are designated for the requirements of its inhabitants and for the development of the country.''65° As part of the Zionist ethos, and to carry out national priorities of development and agriculture, the Water Law abrogated private rights to water, transforming it into public property held

in trust for the public by the state.651

However, the state has breached that trust by its failure to protect water resources. Declaring water as property of the public to be controlled by the State fits the paradigm of a public trust, under which common resources are held in trusteeship by the government for the public. Sax describes the public trust doctrine as based on three principles: (1) natural resources are of such consequence to the general public as to justify maintaining them under public versus private ownership; (2) natural resources, the product of nature and not private enterprise, should be accessible to the public without economic differentiation; and (3) government's purpose is to promote the welfare of the general public and not to allocate natural resources for the benefit of private individuals.652 The doctrine developed first under Roman law and later under that of England and the United States. It was originally intended to prevent government and private citizens from barring public access to the coastline and

650. The Water Law, supra note 18, § 1. 651.

"In 1940 the British mandate government for Palestine legislated the first stage in abrogation of private water rights by adding Article 16E to the King's Word In Council for Palestine, 1922, which transferred most of Palestine's water resources to the High Commissioner. However, this article was never implemented. Only with the enactment of the Water Law in 1959 did the concept of state authority over the country's water resources become a reality, by extending the law's jurisdiction to all the country's water resources inclusive of sewage and storm water, and by declaring that these resources are under the full control of the state, while designated for the needs of the population and development. In short, the law nationalized the water resources and transformed them into state property, even though it did not pay compensation to their previous owners...." H.C. 221/64, The Town of Pardes Hanna v. The Agriculture Minister, 1964 P.D. 18(IV) 533, 539.

652. See SAX, supra note 176, at 165.

653. See id. at 164; Richard Lazarus, Changing Concepts of Property and Sovereignty in Natural Resources: Questioning the Public Trust Doctrine, 71 IOWA L. REV. 631, 632 ("The public trust doctrine is based on an amorphous notion that has been with us since the days of Justinian-the notion that the public possesses inviolable rights in certain natural resources. Commentators first hailed the doctrine in 1970 as offering the most promising legal basis upon which individual members of the public could maintain a lawsuit to protect natural resources from needless degradation and destruction." Id.). For a perspective on the doctrine from a free market approach, see ANDERSON & LEAL, supra note 219, at 72, 113.

654. See supra text accompanying note 294. 655. See supra text accompanying note 33. 656. See Garret Hardin, The Tragedy of the Commons, in MANAGING THE COMMONS

(John A. Baden & Douglas S. Noonan eds., 1998). This article has been noted as "perhaps the most influential article ever written in the environmental field." Fred P. Bosselman, Replaying the Tragedy of the Commons, 13 YALE J. ON REG. 391, 391 (1996).

657. See id.; see also Wiener supra note 32, at 18; ZYGMUNT PLATER ET AL., ENVIRONMENTAL LAW AND POLICY: NATURE, LAW, AND SOCIETY 16-23 (1998).

658. See Laster Dissertation, supra note 3, at 234-235. 659. Id. However, Laster does point out that an action for nuisance could be used by a

downstream user of water against an upstream user. See id. at 236.

660. See Letter from Somre Ju'ma'ah et al. to the Health Ministry (June 27, 1994) (on

file with author).

661. Seeid. 662. See id. 663. See Letter of Attorney Asad Abu Zalaf to N. Zalotsover (Oct. 28, 1994) (on file with author). The threatened action did not materialize, although a cause of action did exist in the framework of both private and public nuisances.

664. Telephone conservation with Attorney Abu Zuluf (Apr. 24, 1999). 665. See supra text accompanying note 297. 666. See Sachs, supra note 59, at 24-25.

667. See supra text accompanying note 359.

668. See E-mail from Alon Tal, April 22, 1999.

669. See H.C. 191/94, Salzman v. The State Attorney General, 1994(2) Takdin 94.

670. See id.

671. See supra text accompanying note 398.

672. See id.

673. See id.

674. See supra text accompanying notes 219-220.

675. See ANDERSON & LEAL, supra note 219, at 4.

676. WATER QUALITY MANAGEMENT, supra note 25, at ch. 13. 677. See supra text accompanying notes 52-57. 678. See supra text accompanying note 58.

679. See D'vora Ben Shaul, At Last, the Environment's on the Agenda, JERUSALEM POST, Feb. 14, 1999, at 7 ("Certainly [the green party] indicates that environmental consciousness has at last penetrated the political framework and that there are more and more people who are beginning to see some of our environmental problems as critical, rather than simply important. It is a small start, to be sure, but a trend that can and probably will grow in the course of time." Id.). However, the Green Party was not very successful, and thus disappeared after the elections.

680. See The Building and Planning Law (Emergency Regulations), 1992; National Masterplan Number 31 on Immigration, 1992. Under pressure from green organizations, the Knesset added provisions requiring the construction of sewage treatment facilities for all new construction, while building plans are now required to include a sewage plan which has been approved by the Environment and Health Ministries. The plan must be implemented together with the main plan in order to avoid situations in which homes are completed with no appropriate sewage facilities. "The mere number of environmental groups [43] and the scope of activities in recent years reveals an increase in the public's ecological awareness and citizen capabilities." BAR-DAVID & TAL, supra note 315 at 12.

681.

682. As of May 1999. See Letter of Mayor of Or Akiba (May, 1999)(on file with au-

thor).

Israel's institutions for water enforcement. Conflicts will inevitably arise, even with the Environment Ministry whose strategies and decisions at the highest level are determined by politicians. Still, the advantages of cooperation both for the Ministry and the environmental organizations justify forging an official policy on the issue, administered by a ministry unit set up for coordination.

Still to be explored is the existing legal regime for water rights, which presently recognizes public ownership under government control and protection. By failing to protect the public's water resources, the government has breached the trust imposed upon it by the Knesset. The subject of legal reform of water rights justifies a separate paper and thus will be left here as another possibility for improving management of Israel' s water resources, in need of further research.

The issues discussed above are not meant to be an exhaustive list of explanations for the questions raised in this paper. They are offered more as a starting point for further discussion and debate that will hopefully lead to increased action on the part of Israel's environmental organizations. Furthermore, as discussed in the introduction, the focus of this paper is narrowed to aspects of enforcement and does not purport to address wider the management of Israel's water resources.

issues concerning

As for the Reina-Nazareth pig farms, it is possible that if a citizen suit had been filed against their owners, the pollution to the stream might have ended long before it actually did. Analogous to the Safed case study, a citizen suit challenging the government's failure to take action against the pig farms could have forced the government to respond, or, even after the Ministry did take action, it might have acted as a goad for faster and more efficient performance in closing them down.683

In conclusion, this article's key goal is to persuade Israel's environmental organizations to (1) concentrate on issues of water pollution; and (2) litigate these issues through challenges to the government and lawsuits against polluters, using either the Citizen Suits Law or the Water Law.684 As noted by Sax:

[L]itigation promotes environmental values by putting a price on them. That price is not always reckoned in dollars, to be sure. A pub-

683. As to action against the polluters themselves, it should be indicated that by the time that citizen suits became available-in 1991, according to the Water Law, and 1992 according to the Citizen Suits Law-the Environment Ministry had already initiated litigation, consequently constraining other action.

684. Although enforcement could also be achieved on the governmental level by the use of administrative orders, on the private individual level, enforcement is only possible through the courts.

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lic shoreline or park, for example, may be insulated from developmental pressures unless and until the public ... is satisfied that this trade is worth making, just as a private owner must be satisfied with a trade for his property. Similarly, courts may hold that environmentally disruptive construction must be enjoined until conditions are fulfilled that will assure protection of the values threatened. The price exacted for environmental modifications is usually some form of genuine public assent, which may be effectuated through the remedy of the judicially declared moratorium, or remand to legislative action.... The enforcement of public rights, at the behest of members of the public, is thus the aplication of democratic theory to the allocation of natural resources.

685. Sax, supra note 176, at 60. ** As this article goes to print, Israel's water crisis has reached the point that "may mark the beginning of the desertification of Israel's countryside and the end of verdant shade in the cities and towns. It may also mark the start of an era of bottled water as the quality of tap water deteriorates." Ariel Jerozolimski, Saving the Water, JERUSALEM POST, June 30, 2000, at B4. In light of the worsening crisis, Israel's Environment Minister has announced that she is ready to relinquish her ministry's authorities dealing with water issues in order to establish a statutory water authority which would deal with all aspects of water management. According to the minister, centralization of authorities dealing with water issues under one agency is mandatory in order to avoid total catastrophe. See id. However, no decision has been taken on the matter and it still waits to be seen if the present crisis will serve as the catalyst for ending the on-going fragmentation of authorities that has proved so destructive to the management of Israel's water resources.