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"The state must take sides in the climate lawsuits"

A conference of the Faculty of Law at Bar Ilan University and the Forum for Environmental Law dealt with issues of law and the climate crisis, following the climate conference in Glasgow * The threats of climate change and the consequences for Israel

A solar farm in the Negev. Is the problem only financial? The climate crisis. Illustration:
A solar farm in the Negev. Illustration:

A conference of the Faculty of Law at Bar Ilan University and the Forum for Environmental Law dealt with the issues of law and the climate crisis, following the climate conference in Glasgow. The participants of the conference brought up for discussion a number of fundamental issues that were also discussed at the climate conference recently held in Glasgow, and are relevant to the issue of climate warming in Israel as well. Among other things, the participants discussed the paucity of environmental legislation initiatives, the government's duty to bear responsibility for environmental issues and the need to emphasize civilian environmental enforcement.

MK Prof. Alon Tal, Prof. Oren Perez, Dean of the Faculty of Law, Bar-Ilan University, Dr. Tzipi Isser and Dr. Tamara Lautner, co-chairs of the Environmental Law Forum of the Israeli Association for Ecology and Environmental Sciences, participated in the conference. Attorney Ayelet Rosen, Ministry of Environmental Protection, Iris Hahn, CEO of the Society for the Protection of Nature, Attorney Asnat Dafna, Ministry of Justice, Attorney David Kopel, Ministry of Energy and more.

First, Prof. Oren Perez, dean of the Faculty of Law and an expert in environmental regulation, spoke: "The multitude of initiatives and recent actions seemingly indicate recognition by the international community of the need to act and a willingness to implement it on the ground. But as a lawyer I doubt that there are no formal obligations. How will it be possible to demand that the countries and companies realize what they promised if they are not legal obligations at all. And anyway, what can be done if they don't keep their word? And more than that - don't the multitude of these initiatives, behind which there is no legal basis or enforcement framework, constitute a smokescreen for the lack of action?"

Dr. Uri Sharon, an environmental expert at Bar-Ilan University: "On the public level, disappointment was felt, as there were a lot of public expectations from the conference in Glasgow. Some of the decisions are even a recycling of decisions that were made in the past and were not implemented. The public is not interested in the legal dynamics that focus on the meanings between phasing out To-phasing down. The public as well as the climatic situation require significant decisions and it seems that the existing mechanism that was designed to move towards a goal in an iterative and measured manner is not capable of providing the dramatic decisions required of the world leaders at this stage."

Disruption of natural systems and the opposite legal system

The climate crisis. Illustration:
The climate crisis. Should other considerations be taken into account as claimed by the Ministry of Energy? Illustration:

Iris Hahn, CEO of the Society for the Protection of Nature: "The climate crisis is the result of the disruption of natural systems, and nature is also the key to the solution - in adaptation and mitigation. Is Glasgow a success or not? Time will tell, but we must not wait, the power is also in our hands. Among other things, there is great power in civil environmental enforcement, we have the power to be the ones who bring the day and not wait until it arrives."

At the beginning of the session dealing with climate litigation, Adv. Isser Itzik reviewed examples of climate litigation related to the recent climate changes in various countries and noted that the latest UN report shows an unequivocal growth in the scope of climate litigation in the last decade with an increase of 654 cases in 2017 to 1200 cases In 2021 in the USA alone. While the numbers are still expected to increase in the coming years.

When the panel members were asked whether this mass of legal processes is on its way to Israel, Attorney Hardel-Vachim answered that the reality in Israel today is such that it is very difficult to manage civil lawsuits in general, not to mention environmental lawsuits which she claims only make up a very small percentage, about 2 percent, of all civil claims. Hardel Vachim continued with the criticism and said: "Even those that are filed, are not lawsuits that reach substantial judgments. Even in the administrative field there are very few petitions. The arena there is very pro-authorities and it is difficult to win such cases. The same goes for civil lawsuits in the Magistrate's Court. The courts simply do not understand what we are talking about and it is difficult for them to deal with these cases. There is no lack of barriers in the field of environmental claims. There is no legislation at all on the subject, there is no climate law after all. The legislation currently does not support the protection of the lives of the citizens of the State of Israel. The climate law must address the issue of changing the preparation for climate change and also talk about the explicit responsibility of the state. to decide once and for all on the division between the state and the authorities. Because the state has a tendency to transfer the responsibility to bodies such as the drainage authority or the local authorities. This is the purpose of the legislation - a clear and explicit division of agreement and responsibility. The state is the main polluter in most cases either directly or indirectly. The state has the tools and can act, but the state auditor's reports show that 97 percent of environmental offenses are not dealt with by its hands.

The state is a blocking step in many lawsuit cases

Is the problem only financial? The climate crisis. Illustration:
Is the problem only financial? The climate crisis. Illustration:

The state must take sides in the climate lawsuits. But today, unfortunately, the state is a delaying or blocking party in many cases of lawsuits, either through a lack of transparency or positions that delay. The role of the state should assist or provide a professional position. Today the Ministry of Environmental Protection does not even bother to submit a position to the court and in most cases it opposes the civil position. The state does not carry out its duty to lead or at least to assist".

Adv. Asnat Dafna answered on behalf of the state and said: "Before we talk about climate litigation, let's talk about environmental litigation. The state entered as a significant player in this field a few years ago as part of a general change of perception originating from the prosecutor's office which means that the state will be more active in the environmental arena which is the most important to us. The possibility of the state being an actor that files lawsuits against polluters comes to bridge the lack of possibility for the private person to file. If it is about global damages such as damage to a nature reserve or a natural resource, then only the state can file a claim on behalf of the public." Attorney Dafna also commented on the lack of a climate law: "True, there is no legislation that gives us the option, so we simply used what happens in the US, which comes to court as the public trustee when he is denied access to a certain resource or if it is damaged. So we took this thing and it bridges that difficult hurdle of attributing damage to a private party. I predict that this trend will indeed reach Israel and we will see government policy and activity in the constitutional arena.
But regarding the more effective arena of monetary claims - if the state sues a corporation, then its contribution to climate change must be proven and then the damage attributed to the local residents. This is a double hurdle. In this regard, the country is also having difficulty. Rhode Island, for example, sued all energy companies in the US for damaging the ocean. We would also like to do that in the near future. It is certainly possible to recognize that the state, as an actor in the field of civil enforcement, will not be able to reach all cases. Whether cases in which it pollutes or whether its resources are limited. Faced with the legal and legal situation, the buyer has here. But the state is limited, so I and others think that legislation should be produced that creates some sort of level that the state will be given the right of first refusal to respond to any event."

Attorney Eil Ofer addressed the issue of the financial sector and said: "Despite the attempts of the Securities Authority and other entities, the situation in Israel is not alarming. In the world it works - in the USA, Australia and the Netherlands things are very advanced. There is a development in the world that is slowly reaching us as well. The hurdles in Israel are very difficult. The local authority doesn't always help, the Israel Police doesn't really help either, and neither does the Ministry of Environmental Protection."

Dr. Omer Peled summarized the words and said: "Regarding the barriers to the development of litigation in Israel, in my opinion the state should take the role of the prosecutor. The plaintiff has the most effective interest in obtaining results. However, there is no reason for the state to sue if there are private entities that can do it better. The question depends on who is the more successful plaintiff for that case. It is also very difficult for the state to file a tort claim. It is difficult to identify the victims of climate change because they may not even have been born yet. And it is also difficult to link between the harmful and the damaged and between damage and specific effects. The court system in the United States refused a climate lawsuit against oil companies because political law simply does not know how to deal with it and it is a truly local tragedy. This principle of the state's need to balance energy needs and dealing with the climate crisis is a tragedy because every state has a minimal benefit from reducing climate warming but bears the cost. The state should devote its time and bring about a constitutional regulation on the subject. There needs to be a smart consumer movement because otherwise there will be no basis for those claims."

The climate law and carbon taxation

The second session dealt with the issue of climate law legislation and carbon taxation. Attorney Dror She first presented the main points of the law and said: "After we returned from Glasgow, we realized that the planet is in a race against time. Therefore, a plan was drawn up to prevent the temperature rise immediately, and for this purpose, the activity framework and the cooperation framework, such as the Paris Agreement, were established. The goals should not be in legislation, but after several years of disputes, we realized that government decisions are not enough. The law will allow the Knesset to control the government and the environmental organizations to file lawsuits. The proposed climate law that we brought is intended to be a comprehensive framework for the State of Israel to deal with the climate crisis. The goals include reducing carbon emissions, annual reporting and the preparation of preparations for all government ministries. It was interesting to see in Glasgow that it was easier for the leaders to commit to what will happen in 2050 than what will happen in their term of office in the coming years." 

Ministry of Energy: The climate law will tie our hands

Attorney Kopel: "The Ministry of Energy has no objection to the climate law. The issue of climate is an essential issue for the Ministry of Energy, alongside the traditional goals of the Ministry which are the efficient supply of energy to the public at an affordable price. That is, alongside the fight against the climate crisis, we must balance things. In relation to the memorandum of the law, there are several difficulties here: what is proposed in it are very extensive powers for the Ministry of Environmental Protection that fall under the authority of our ministry. The law puts the emphasis on climate considerations as an almost singular consideration and does not give weight to other interests that must be protected. We will have to be managed by another office when there is a separation from responsibility to authority in this matter. I think that as far as the fight against the climate crisis is concerned, this type of legislation can greatly harm the ministries' ability to do so."

Prof. Perez: Climate law is critical. It is a control mechanism that should bind the hands of the current government and the following governments until 2050. We need to understand that tools such as government decisions are soft and ineffective tools and therefore it is critical. And it's not for nothing that Joe Biden is running in the Senate and Congress because who knows who the next president will be. The mechanisms of the law are not good, but a bad climate law is also excellent. The Climate Change Advisory Committee lacks the capacity or infrastructure to respond or advise too. Even the committee of experts does not have the ability to cope. The climate institute is also a failure since I do not believe that the office can form a basis for a scientific climate institute. The whole institutional system in the law is a failure in my eyes. It's a shame that the ministry didn't try to go further."

Prof. Shor: "I have not seen that there are climate laws in the world that really make an impact. I think what is important in American legislation is that it is a physical law. If we want a climate law, then with us it should be a budget law because we mainly need money and a lot of money. Setting goals for the country is almost worthless. The state has decided but it is not certain that it will take place. There are many environmental laws that have been enacted but not enforced and are not being followed. I think it can even be harmful. Environmental organizations have a limited amount of political capital and I would rather see it invested in places like stopping oil and gas exploration and things like that. These goals do not apply to anyone. In order for the law to be effective, it is necessary to indicate to whom it applies. That's why I'm not in favor of wasting time on setting small goals."

It is desirable that the transition to clean energy be for economic reasons

Shani Mendel Lauper: "80 percent of carbon emissions are from the polluting fuel sector. We want to move the energy sector towards renewable energy, but it has to happen for cost reasons. Like people switching from wood to coal to gas because of cost considerations. Everything in the end is financial considerations. It is necessary to act in everything related to pricing in the markets. Despite Israel's small influence in the world. It should be economic for developing countries as well. We have to wait and see what happens with technologies that have not yet been developed. Clean technologies such as wind, hydro and nuclear energy. There is no doubt that a policy is also needed. Need goals. We need to understand where we want to go. But without proper energy the economy cannot function. How can you enact a law that defines goals if you don't know how to get there? The world of energy is a complex world and suddenly taking powers is a matter that can be harmful. In the end, if there is no electricity here, they will not arrest the head of the Ministry of Environmental Protection."

Adv. Ganot: "I think the Ministry of Finance needs to change the diskette when it comes to the climate crisis. We also saw the latest State Comptroller's report on this matter. The financial system should be involved, that's right. But in our opinion the main interest is to understand the security challenges that will arise from the climate crisis. Government decisions are not enforced at all and laws are somewhat enforced. This relates to the ruling culture in Israel where decisions from the government are in the nature of recommendations. It is also related to the challenge of climate change which requires us to look far. Because it is true that leaders find it easier to look at 2050, but they must also look at another 3 years. They must both. Legally speaking, they are not an anchor at all. They may be an interpretive anchor but not a basis for a claim. The challenges are true for the whole world. But once you aim there, then you have the possibility to get there. But if you don't act, you certainly won't come. Beyond that, the private market and the key players in this market should be signaled to direct themselves to the same ambitious goal. Finally, if it is not in legislation, it will not be convincing. The legislation creates certainty."

Israel - one of the most vulnerable areas to climate change

Dr. Anat Chechik, environmental economist bDepartment of Geography and Environment  at Bar-Ilan University and a member of the Energy and Sustainability Center, speaking in the "Interview" section in the marker, about the threats posed by the changes in the climate and the expected consequences for us as residents of Israel, a small and dense country, which is characterized by a high birth rate, a lag in the release of fossil fuels, and a large use of disposable utensils. She warns that Israel is also one of the most vulnerable regions to climate change.

The climate conference in Glasgow and the extreme climatic events that the world has experienced in the last year have raised awareness, but according to Cecik, the change on a practical level is not enough, and she does not hide her concern. As an economist, she witnesses the tension between the desire for growth and the environmental damage that growth causes. This tension probably resulted in the unsatisfactory results of the conference in Glasgow and the emergence of local initiatives independent of it.

Dr. Chechik explains the difficulties involved in curbing climate change, including the gap between effort and change and the sense of achievement, as well as the responsibility for carbon emissions that is shared between many parties. These many factors are not equal to each other in the amount of damage they cause or the amount of damage they absorb. This is true both at the global level and at the national level - it is easier for rich polluters, such as Benzene, Petrochemical and Chevron, to absorb fines for pollution and continue their own compared to poorer ones.

The ends of the thread for change for the better that Dr. Chechik points out very carefully in the interview are the corona virus which proved that when there is a real threat it is possible to cause behavioral change, cities that take responsibility for their environmental effects and no longer wait for change at the international or national level, the developing hydrogen economy, the concern of young people for their future, and the Kuznets curve that shows that when a country begins to develop, and the GDP per capita begins to rise, the level of pollution keeps increasing, until the GDP per capita reaches a certain level, from which point the level of pollution decreases due to the development of environmental legislation.

The bottom line is that time is short and the work is a lot, and small changes are not enough, but a deep change in the economy and lifestyles of all of us, especially the wealthier ones.