ENFORCEMENT STRATEGIES IN ISRAEL - Jan-96

ENFORCEMENT STRATEGIES IN ISRAEL

How best to change human behavior so that environmental requirements are complied with? Environmental agencies worldwide have been grappling with the problem for years. The solution may well lie in just the right blend of education, motivation, administrative enforcement, judicial enforcement and prosecution.

Voluntary Compliance

Ideally, the first two ingredients alone, education and motivation, should be the foremost elements in a compliance program. Indeed, one of the most successful environmental education campaigns ever undertaken in Israel centered on the prohibition to pick wild flowers, once a popular pastime in Israel. Fears that many of the flowers indigenous to Israel were facing extinction led Israel's environmental organizations to lobby for nature protection legislation and simultaneously to launch a massive public information campaign. These twin tools worked so well that law has rarely been invoked.

Motivation, alongside education and information, is yet another essential ingredient in voluntary compliance. Economic incentives and disincentives are key factors in increasing motivation to comply with environmental laws and regulations. According to the economic approach, individuals and companies should bear the real and full cost of usingor abusingenvironmental resources. At the same time, subsidies and incentives should be used to encourage the development of 'clean' technologies and to abate pollution.

Financial enforcement incentives make compliance with the law an economically-viable option; non-compliance results in punishment and monetary penalties. Moreover, compliance with environmental regulations makes economic sense: not only is expenditure on prevention lower than expenditure on damage repair, but environmental compliance can actually strengthen economic competitiveness through more efficient use of raw materials and through the development of a green image.

As of last year, the Ministry of the Environment has been offering financial grants to Israeli companies which invest in monitoring and pollution treatment facilities and in environment-friendly technologies and materials. Out of 136 applications for financial aid, 68 applications were approved in 1995 at a cost of $8.5 million. Additional incentive measures which are currently being introduced into Israel include eco-labeling and a standard for environmental management systems.

Environmental Legislation and Enforcement

Enforcement begins with, and is based on, effective legislation. To be effective, environmental legislation must aim for achievable standards and have practical application. Israel's environmental legislation is wide-ranging: it seeks to prevent environmental deterioration, on the one hand, and to stop, abate and clean-up existing pollution, on the other hand. It includes environmental provisions in the general body of law, specific laws that deal with such environmental and nature protection issues as air, water, marine, waste and noise pollution and the protection of flora, fauna, and landscapes, and more general laws, such as planning and building and business licensing, which serve as the legal base for resource management and sustainable development. National legislation is complemented by a wide range of environmental bylaws on the local level and by an increasing number of international conventions on a global scale.

An important characteristic of Israeli environmental legislation is that it is enforced through administrative, civil and criminal measures. For instance, within the Abatement of Nuisances Law, all three remedies serve as tools of enforcement. Under this law, administrative action is taken through special directives (known as 'personal decrees') which order an individual polluter to take specific steps to prevent and abate pollution. Civil law is employed through the application of the Torts Ordinance; thus, a breach of the Abatement of Nuisances Law is considered a nuisance, making available all civil remedies, including the payment of damages. Finally, since the Abatement of Nuisances Law prohibits strong or unreasonable air and noise pollution or odors, the offender is subject to criminal punishment as well.

Administrative Enforcement

While the public often perceives enforcement merely in terms of criminal prosecution, this step represents only the tip of the enforcement pyramid. At the base of the pyramid lies a conception which places top priority on prevention and deterrence. Prevention is the ultimate goal of Israel's environmental enforcement strategies and administrative enforcement goes a long way toward achieving this goal.

The provision of environmental requirements, by such administrative means as licensing and permit requirements, is perceived as the first and most essential step in Israel's enforcement strategy. Environmental laws in Israel often provide the authority to issue permits, licenses and regulations, to inspect regulated facilities, to require monitoring, to publish notices and warnings, to issue restraining orders, prevention of recurrence orders or corrective orders, and to initiate criminal proceedings. At the national level, the administrative system makes the granting of licenses and permits conditional on the fulfillment of specific stipulations aimed at preventing environmental damage. Permit systems are used for business licensing, planning and building, dumping at sea, and the possession and use of hazardous materials. Finally, littering and some marine pollution violations are subject to a special administrative sanction system (similar to the traffic ticket system) which provides for options of fines in lieu of trial. The violator can choose to pay the fine stipulated in the citation, or to pursue the matter in the judicial system..

Inspection

To be effective, administrative requirements should be backed up by proper inspection mechanisms. Indeed, inspections, whether conducted by government inspectors or by independent parties, are the backbone of most enforcement programs. On the administrative level, the Ministry of the Environment operates a number of inspection bodies to enforce legal and administrative measures. These bodies are staffed by professionals in their respective fields who are also trained to perform inspection procedures and to conduct investigationsand are legally authorized to carry out their tasks. Because the Israel Police Force is barely involved in environmental law enforcement, because of inadequate manpower and low priority, the role of enforcing environmental laws is often carried out by professional environmentalists who are trained and empowered as police officers, rather than by police officers equipped with technical and professional skills.

The Environmental Inspection Patrol, operated by the Ministry of the Environment, is authorized by the Ministers of Police and the Environment to conduct formal investigations of suspected violators of environmental laws. It has played a key role in environmental law enforcement, focusing on such subjects as solid waste disposal sites, littering, hazardous waste disposal, cleanliness in gasoline stations and illegal billboards along interurban highways. In addition to the Patrol, the Environment Ministry, along with other government and environmental bodies, operates specialized supervision units in other areas as well, most notably marine and coastal inspection, poisonous substances and river monitoring. Together, these specialized inspection units play an important part in the enforcement of environmental requirements as part of a so-called 'Green Police.' On the local level, local authorities have their own supervisory infrastructure, with thousands of inspectors who play an important role in the supervision of business licenses and building permits and the enforcement of municipal legislation on nuisance prevention.

A unique innovation in the field of Israeli law enforcement is the recruitment of the general public as volunteer cleanliness inspectors and trustees, and more recently, as volunteer animal welfare trustees. These volunteers enforce the Maintenance of Cleanliness Law and the Animal Welfare Law by filing complaints against offenders.. In the case of the former, the complaints form the basis for a 'finable offense' procedure

(which provides for the payment of a fine in lieu of an appearance in court). To date, some 130,000 cleanliness trustees have been recruited from the general public. In addition to the public's role in law enforcement, public participation serves an important educational and preventive goal.

Pre-Criminal Actions

When administrative and deterrent means of enforcement are insufficient to ensure compliance with environmental requirements, legal measures are undertaken. However, before formal response mechanisms are taken, attempts are made to exhaust such informal measures as phone calls, site visits, warning letters and notices of violations. Before filing a case with the court, the relevant administrative or professional authority in the Ministry of the Environment conducts a 'hearing process' in which the details of the case are presented to the suspect, fair opportunity is given for response and explanation, and a final chance is granted to the suspect to propose remedial steps in accordance with an acceptable timetable. At this pre-criminal proceeding stage, violators may feel threatened enough by the very possibility of prosecution to solve the environmental problem voluntarily. This is especially true in cases in which criminal proceedings against the head of a local authority are planned. Investigations under oath of a mayor or head of a local authority or the very threat of applying to the Attorney General for consent to prosecute a local authority or its mayor may be enough to bring about remedial action.

Criminal Proceedings

When negotiations fail, cases against polluters are handled within the general criminal system. Most of the environmental cases are dealt with in the magistrates and local courts; some are deliberated upon at the district court level; and others by the Supreme Court, sitting as a Court of Appeals or as the High Court of Justice.

As in the case of the police, the State prosecution system rarely handles environmental issues due to the absence of both resources and awareness. The Ministry of the Environment has therefore taken on the services of private law firms that have been empowered by the Attorney General to represent the State in criminal proceedings and operate under the supervision of the Legal Division of the ministry. These legal services are financed either by the Maintenance of Cleanliness Fund and the Marine Pollution Fundwhich are operated within the ministryor through a special budget that has been allocated to help finance the prosecution of environmental pollution offenses, with a special focus on the contamination of water resources and solid and liquid waste pollution. This arrangement not only relieves the dependence of the ministry on the State Attorney's office, which already operates under heavy work loads, but offers an added bonus of more efficient and expert legal representation.

While criminal response can be the most difficult type of enforcement, it can also create the most significant deterrence since it personally affects the lives of those who are prosecuted and carries a significant social stigma. In some cases, legal proceedings are enough to catalyze out-of-court settlements. When deterrence is important to a program's compliance strategy, maximum impact will be gained if sanctions are utilized, whether monetary penalties, denial or revocation of permits or licenses, shutdown of operations, or even jail terms.

In recent years, major efforts have been made to encourage citizens to bring private criminal complaints and to initiate civil proceedings in environmental matters under various civil and environmental laws. Although, the public's role in the enforcement structure remains the weakest link in the Israeli system of enforcement, several successful cases have been initiated by the publicand most notably by non-governmental environmental organizations. These cases have contributed to the enforcement of environmental standards and more rigorous enforcement policies by government agencies. In a few cases, the High Court of Justice has ruled in favor of petitions seeking redress against various authorities for inadequate administrative performance in environmental affairs.

The public has an important role to play in insisting on its right to a clean and healthy environment. Israel's growing body of environmental legislation, its new emphasis on environmental compliance and enforcement and its ever-increasing environmental awareness should help usher in a new era in which carrot and stick will work together to make for a better environment for all of Israel's people.