A DECADE’S EXPERIENCE IN IMPLEMENTING A LAND-USE ENVIRONMENTAL IMPACT ASSESSMENT SYSTEM IN ISRAEL
by Ruth Rotenberg
Legal Advisor, Ministry of the Environment
This paper is part of a longer paper written during Advocate Rotenberg’s 3-month stay at the Natural Resources Law Center,
School of Law, University of Colorado at Boulder as a Visiting Fellow. Reprinted in part from Resource Law Notes Winter Issue, January 1993, Number 27.
LEGISLATIVE AND HISTORICAL BACKGROUND OF ISRAEL’S EIA SYSTEM
The Planning and Building Law, 1965
Israel’s land-use planning system is regulated under the Planning and Building Law of 1965 (published in the Official Records: ‘Sefer Hachukim’, 1965, p. 307) that replaced a 1936 Town Planning Ordinance, enacted by the British Mandate. The Planning and Building Law establishes a comprehensive legislative framework which regulates all land-use development activities in Israel, public as well as private, within a three-level hierarchy system: national, district and local. According to the Planning and Building Law, no work related to the building and use of the land can be initiated without a permit, and a permit cannot be issued unless it fully complies with the various outline (master) and detailed plans applying to the specific area and project.
The top level of the Planning and Building Law hierarchy is the National Planning and Building Council, composed of representatives of various government ministries, relevant public and professional organizations and local authorities. The National Planning and Building Council is responsible for preparing national outline plans, reviewing regional outline plans and serving as an appeal board for decisions of the District Planning and Building Commissions.
The national master plans are prepared for land uses and projects of national significance such as national parks and nature reserves, solid waste disposal sites, water catchment basins, the coasts (Mediterranean coast and Lake Kinneret shores), electric power stations and networks, prisons, roads and railways, cemeteries, tourism and recreation.
The six District Planning and Building Commissions are composed of regional representatives of governmental ministries and of representatives of local authorities (municipalities) within each district. The District Planning and Building Commissions are responsible for the preparation and implementation of district outline plans, in accordance with policies and guidelines expressed in the national outline plans. The District Planning and Building Commissions are also in charge of reviewing and commenting on national outline plans and reviewing and approving local outline and detailed plans.
The local level consists of about one hundred Local Planning and Building Committees serving one or more local authorities and composed of the elected members of the municipal councils. The Local Planning and Building Committees are responsible for the preparation of outline and detailed local plans or reviewing such plans presented to them by developers. The Local Planning and Building Committees are also responsible for issuing building permits and enforcement in cases of illegal building.
In addition to the above described three-level hierarchy, there are two special national-level committees. One is the Committee for the Protection of Agricultural Land which is in charge of reviewing any development plan on agricultural land for other land-use purposes. The second is the Committee for Coastal Waters, which is responsible for all off-shore development projects. No plan or building permit regulating agricultural lands or an off-shore project may be approved without prior approval of the relevant above-mentioned committee.
The Planning and Building Law provides for a public notification and participation process, which is an uncommon feature in the Israeli administrative system. A proper public notification is required prior to approval of all local and district outline plans, including a variation or amendment thereof. Any person interested in a submitted plan who considers himself aggrieved by the plan, any representative of a governmental ministry or any public body enlisted under the regulations (such as the Society for the Protection of Nature), may file an objection to the plan. The opposing person or body has a right to present his objection in writing and the right to be heard by the planning committee. The Planning and Building Law also provides for an appeal process in case an objection is rejected.
The Minister of the Interior is in charge of the Planning and Building Law and most plans require his final approval and signature. The national plans are also subject to government (cabinet) approval. A notification of each approval of a plan must be published.
The Environmental Impact Assessment Regulations (EIAR)
The Environmental Impact Assessment Regulations were promulgated in 1981 under the Planning and Building Law and came into force in July 1982
(published in the Official Records: Kovetz Hatakanot, 1982, p. 502). The preparation and promulgation of the EIAR took many years, starting in March 1973, when the government of Israel decided to create the Environmental Protection Service (EPS) within the Prime Minister’s Office.
In its decision on establishing the EPS, the government stated that one of the EPS functions would be "to prepare a program for the establishment of a system of environmental impact assessment." The government also set the basic rules, the scope and nature of such a system, by specifically determining that "the program will be prepared in conjunction with the Ministry of the Interior and the National Planning and Building Council, ensuring preventive measures to avoid delays and duplication in the proper function of the planning and building agencies." The government expressed a worldwide growing concern for the need to consider environmental impacts within the development process to prevent and eliminate adverse environmental impacts, unreasonable depletion of resources, and ensure sustainable development. Since then, the EPS made numerous efforts for launching an EIA program, through steering committees and professional administrative working groups.
Within this period, the EPS was moved (in 1976) from the Prime Minister’s Office to the Ministry of the Interior and became involved in the actual planning process, thus introducing environmental provisions to be included in several national masterplans, and drafting guidelines for the preparation of environmental reviews within various specific projects, such as the Hadera Electric Power Plant, and the state’s largest wastewater treatment plants in the sands of Rishon Lezion. These decisions and activities as well as the organizational changes (including the appointment of environmental advisors to the national and district planning committees) laid the groundwork for introducing the 1981 EIAR, but not before some long and exhaustive discussions on the subject were conducted at the National Planning and Building Council, and by a specifically designated sub-committee. The outcome of this long negotiation process was a compromised version of subordinate legislation the Planning and Building (Environmental Impact Assessment) Regulations, signed by the Minister of the Interior on December 15, 1981, and entered into force on July 15, 1982.
REVIEW OF THE ISRAELI REGULATIONS
Main Provisions of the EIAR
The Environmental Impact Assessment Regulations present in a brief manner the procedural and substantial requirements for preparing and submitting an EIA within the context of the planning and building process, thus applying to all-private as well as governmental-physical development activities.
Activities Requiring Assessment
The regulations specify types of some activities (plans) for which an EIA is mandatory: power plants, airports, seaports and hazardous waste disposal sites. The regulations also specify other activities landing fields, jetties, national water supply arteries, dams and reservoirs, wastewater treatment plants, mining and quarrying sites, solid waste disposal sites and an industrial plant not within an industrial zoning area as conditionally subject to an EIA request, where "in the opinion of the National Planning and Building Council or the District Planning and Building Commission" considering those plans, they may have a "significant environmental impact exceeding the local boundaries."
In addition to the above-listed identified activities, the regulations provide the grounds for a discretionary EIA requirement that is, at the request of a representative of a governmental ministry in a planning and building committee or at the request of the planning and building committee considering a planning and building plan "whose implementation may, in its opinion, have a significant impact on the environmental quality." Such a request can be made at any state of the planning and building process prior to the plan’s approval.
EIA Scoping and Content
The EIA Regulations state the following five elements as basic and specific requirements to compose a proper EIA document:
* A description of the environment, subject to a proposed plan, prior to the development activities. Attached to this general environmental data base requirement is a broad definition of the term "environment" expressing a functional rather than geographical approach: "the environment which in the opinion of the planning committee may be affected by the plan’s activities."
* A specification of the reasons for the preference of the proposed site of the plan and its activities. This requirement provides a legal basis for an alternatives’ eliminating process, not for a complete presentation and analysis of alternative options to the proposed plan and activities.
* A description of the activities resulting from the performance and implementation of the proposed plan. This part to be mainly of a descriptive nature.
* Specification and assessment of the future impacts anticipated and forecasted resulting from the implementation of the development plan and its activities. This open-ended requirement allows for the presentation and examination of the widest scope of impacts. Sequentially, there is also a requirement for a description of the necessary mitigating measures to prevent the negative impacts.
* The final part to be included in every EIA is the presentation of the findings of the EIA study and its outcomes and proposals to be included in the documents of the actual plan. This provision, if properly implemented, constitutes the substantial and true contribution of the EIA process to environmentally sound planning and development.
EIA Preparation and Submission Procedures According to the regulations, the EIA should be prepared in accordance with specifically-tailored guidelines established by the relevant planning and building committee, and based on the Environmental Advisor’s proposal. The guidelines are aimed to ensure that the EIA is properly prepared and contains the relevant data and information. This is of particular importance, bearing in mind that the EIA is prepared and submitted by the developer.
The Director General of the Ministry of the Environment (previously Director of the EPS) was appointed as the Environmental Advisor for the purpose of the EIAR, and is performing his duty through the Environmental Planning Department of the Ministry of the Environment. The regulations set up the timing for the submission of the EIA: together with the planning documents when the EIA is explicitly required, or at any other stage of the plan’s preparation, prior to its approval. This allows also for an EIA request at the later stage of deposition of a plan for public objection.
Finally, the responsibility for examining and evaluating the EIA lies with the relevant planning and building committee, which is not to approve a plan submitted with an EIA "unless it has reviewed all details of the EIA and has decided upon the findings and instructions to be included in the provision of the plan as an outcome of the EIA."
According to information given by the Environmental Planning Department of the Ministry of the Environment, since the entry into force of the EIAR in 1982 until the end of 1991, 84 EIAs have been submitted to planning and building committee and received at the Environmental Planning Department for check up and evaluation. During the same period, the Environmental Planning Department prepared on the request of planning and building committees 154 sets of guidelines. (Editor’s note: By the end of 1993, guidelines for 248 ElSs had been issued).
The plans which required the preparation of EIA concerned mainly the following: seaports and marinas, sites for tourism, recreation and sports, mining activities, energy production plants, various industrial plants, solid waste disposal sites, roads and parking lots. Guidelines have also been prepared and issued on plans for airports and landfills, water and wastewater treatment plants and for railroads, but these plans have not yet been submitted.
The above-stated numbers reveal a moderate picture of implementation. It did not create an "overflow" and did not obstruct the planning and building process, as the critics warned. This moderate picture may well be attributed to the character of the EIA system, being basically a discretionary system, especially as concerns the request for EIA.
This picture may change now, as a result of a 1992 Amendment to the Planning and Building Law that nominated representatives of the Ministry of the Environment as members of the District Planning and Building Commissions. This membership should affect, inter alia, the quantity and quality of EIA-related decision-making on these committees.
It is worth noting in this context another existing practice: to require the preparation and submission of an EIA under the provisions of a specific plan, not directly within the EIAR process. This is the case, for example, in most road construction planning. For some reason, these plans were not included implicitly in the EIAR. This was remedied at a later stage, while amending the National Planning and Building Roads Masterplan to include an obligatory request for the preparation of EIA, regarding road planning and building.
Unlike the American experience, there has been very little court litigation on EIA matters in Israel. Two recent cases might be of interest and worth mentioning:
One recent High Court of Justice case, known as the Kfar Hanassi Case (B.G.Z. (High Court of Justice) 2324/91, The Movement for the Quality of Government in Israel and Others v. the National Planning and Building Council and Others (not yet published)) dealt with a petition against the approval of a plan regarding the building of a hydroelectric plant to supply the needs of a small adjacent kibbutz. The plan entailed diverting the natural flow of part of the Jordan River, at a wildlife area, north of the Sea of Galilee, in order to create an artificial waterfall for the hydroelectric system.
The case was petitioned on the grounds that the project would cause severe and irreversible damage to the natural ecology of the adjacent Jordan River environment. The petitioners challenged the planning and building committees for not following the proper procedures in reaching their decisions to approve the plan, and alternatively claiming that the decisions were unreasonable because they did not consider properly the destructive aspects of the proposed plan, neglecting to give the proper weight to considerations such as the special status of the Jordan River as a national asset and the damage to tourism and to the view and environment of this special site.
The court did not accept these arguments. As a matter of fact, it established that all the required procedures had been followed, including: discussions by all relevant planning and building committees, a detailed EIA was prepared and submitted to the District Planning and Building Commission, necessary mitigation measures were recommended and incorporated in the plan, and objections from many persons and bodies have been heard by the District Planning and Building Commission.
As a matter of law, the court stated that the question to be examined in such a case is not what the court would have decided in those circumstances (hinting, perhaps, at its dissatisfaction with the decision), but whether the decision is reasonable according to the rules and criteria established in Administrative Law. Finally, the court reiterated in detail all the mitigating measures that were incorporated in the plan and emphasized that these measures should be scrupulously implemented.
Another recent High Court of Justice case involving environmental and EIA questions is known as The Voice of America Case (B.G.Z. (High Court of Justice) 3476/90, the Society for the Protection of Nature and Others v. The National Planning and Building Council and Others (not yet published)). In this case, the petitioners challenged a decision of the National Planning and Building Council to approve the location and construction of a huge radio transmission station designed to improve the quality of the Voice of America’s (VOA) broadcasting services to the Asiatic Russian Republics in the Arava area. The Arava area is a desert-type prairie located in the southeastern part of the country, with only a few scattered small agricultural settlements. The supporters of the VOA plan emphasized its potential economic value as a trigger to introduce development and jobs to the Arava area. The opponents were concerned about the environmental impact of the project the station’s radiation dangers to human beings and to numerous migratory birds that fly along the Arava area.
In this case, the court ruled for the petitioners, mainly on the grounds that the planning and EIA processes were lacking and incomplete. The court established that the EIA has not properly investigated the radiation and thermal effects of the station on the migratory birds and their navigational mechanism, and therefore the National Planning and Building Council is lacking sufficient information needed for reaching a proper decision.
Another claim accepted by the court was the failure of the EIA to deal with the effects of the VOA station on the location of a nearby Israel Defense Force firing zone, the probability of having to shift its location and the various environmental effects of such a change.
On these grounds and on another strictly administrative default of the process, the High Court of justice decided to uphold the petitioners’ claim and request that a further study was needed on the above-mentioned subject matters, in order to furnish the National Planning and Building Council with the appropriate information required for reaching a well-founded decision. It seems that in this case the court took a further step from its strictly administrative procedural approach (as demonstrated in the previous case), while refraining from a substantial judgement and not directly interfering with the competent authority.
SUMMARY AND RECOMMENDATIONS
There is no doubt that the EIA system in Israel has been truly embodied as an integral part of the well-established planning and building process, which controls most of Israel’s land-use and development activities. Furthermore, there is no evidence as some critics have been warning and threatening, that the implementation of the EIA system has created "bulks of unnecessary paper work" or caused extra delays in the planning and building process, or that it prevented in any way project development. On the other hand, it may well be assumed that a decision-making process based on well elaborated and properly presented information is bound to lead to better understanding of circumstances and consequences, and result in a better decision.
Applying this assumption in light of the American experience and bearing in mind the above-mentioned Kfar Hanassi Case, may drive to a conclusion regarding the need of further "action-forcing procedures.
In spite of some obvious advantages of flexibility and efficiency of the Israeli EIA’s discretionary approach, a reconsideration of this approach may be needed and is hereby recommended. This is aimed at introducing additional criteria regarding specific problems within the implementation process of EIAS, to include:
* Improved techniques to identify activities requiring EIA, taking into account the screening of impacts and significance determination processes; and an adequate study of reasonably defined and analyzed alternatives. Such additional criteria may also include an explicit request for specific subject matters, such as the inclusion of socio-economic considerations, risk assessment study and cost-benefit analysis.
* A further consideration on improving and expanding public participation in the EIA process. The American and European EIA legislation include provisions which guarantee the involvement of the public individuals, groups and organizations in almost all stages of the EIA process. These provisions also provide for the disclosure of information to the public, to serve the functions of offering the public adequate notice of future development activities and their environmental consequences and of mitigating measures, as well as informing and ensuring the public that the decision-making process was properly conducted. Although existing in the Israeli planning and building process, and applying also to the EIA process, public participation is limited to certain stages in the planning and building procedure and cannot fully serve its goals. Further consideration of ways and methods to increase effective citizen participation in the EIA system within the planning and building process is recommended.
Finally, without impairing the EIA system as an integral part of the planning and building process, its effectiveness and its invaluable contribution to the environmentally-sound development of Israel, it is well understood that this process is limited to land-use planning and decision-making.
Searching for a complementary system to introduce and apply EIA procedures to decision-making processes and activities other than land-use (such as the issuing of certain permits, for example) may introduce a provocative and challenging idea, worthy of a careful study and consideration, as the American and to some extent European experience demonstrate its applicability. Completing a decade of successful implementation, the Israeli EIA system may just be ripe for these new ideas and changes.