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JIIS Bulletin - July 2012
Calling for greater environmental liability
Israeli liability law, until quite recently, has not extended to the environmental sphere, to say the least. A JIIS Environmental Policy Center (EPC) project, conducted by Dr. Orr Karassin (Open University) with economist Dr. Anat Natan (Sapir College), has been examining why this is so and building a set of recommendations on how to remedy the situation. "The study looked at what legal mechanisms exist for encouraging environmental liability of governmental and private entities, and then we compared them with models from other parts of the world. We went on to assess existing Israeli law according to economic and environmental theory,” says Karassin. "For example, we analyzed the obstacles facing an individual that seeks to ascribe liability to either private or governmental bodies – which, it turns out, is no simple matter. Our research outlines the policy and legal changes we believe are required in Israeli law to ensure that the ‘polluter pays’ principle is fully implemented." 

Although Israel has several civil liability laws, and one specifically dedicated to civil environmental liability, civil enforcement remains weak. "Criminal prosecution in environmental matters is still much more prevalent, at times up to tenfold," says Karassin. "Public involvement in enforcing environmental regulation through civil law remains low. As a result, civil liability has had limited effect on environmental policy and has not provided the expected incentives for environmental protection."

The researchers' numerous recommendations include the following: strengthening existing ecological liability legislation, especially through the recognition of ecological damage as a category for liability (this would allow legal suits to be filed when ecological damage occurs, even if there is no visible or immediate effect on human health or property); recognizing other forms of causation that allow for establishing liability for future ecological or health damage; broadening the environmental responsibility of public bodies by expanding liability for damages occurring from negligent enforcement and/or negligent rule making. Finally, the research suggests imposing punitive damages by the courts as a means of circumventing the difficulties in assessing the value of ecological damages in cases of severe and widespread damage.

In its first Environmental Performance Review of Israel, issued last year, the OECD highlights the importance of promoting environmental liability among its key recommendations. The review directly quoted JIIS documents and research in this context, acknowledging the work of the EPC to advance such issues on the Israeli agenda. 

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