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Amicus curiae at landmark hearing on “reasonableness”

Attorney Eli Ben Ari represents Adam Teva V'Din as a "friend to the court" in the multi-party petition to the Supreme Court against the cancellation of the amendment cancelling the 'reasonableness' on environmental grounds.

Adam Teva V’Din was recognized as amicus curiae (friend of the court) in the multi-party petition to the Supreme Court against the cancellation of the July 2023 amendment cancelling the ‘reasonableness’ doctrine. (Please find all previous articles on the judicial overhaul here.) Our lead attorney Eli Ben Ari summarized for the full bench of justices the long list of High Court of Justice petitions filed by Adam Teva V’Din over the last twenty years that were based on the concept.

How did this begin?

In July this year, Israel’s most extreme Coalition government – with the support of the Minister of Environmental Protection – approved a ‘dictatorial’ law that has the potential to reduce the Supreme Court’s ability to protect environmental human rights.

“The cancellation of the “concept of reasonableness” grants the government a free rein to make arbitrary and offensive decisions, with Israel’s environmental protection likely to be an early victim.” explained attorney Eli Ben Ari, before the 13-hour hearing needed for the justices to hear all of the petitioners.

Adam Teva V’Din were recognized as a Friend to the Court due to the centrality of reasonableness to our work in protecting the environment in which all Israelis work, rest and play. The status acknowledges that Adam Teva V’Din contributes expertise connected to an environmental case or hearing, thus helping the judges reach the fairest decision. Adam Teva V’Din have been involved in the protection of environmental human rights, public health and the environment for over 30 years.

Earlier in the summer of 2023, there were two explosions at Nof Yam, Herzliya, at a former Israel Military Industries side. Developers had been granted planning permission for construction of 4,000 housing units at the site adjacent to the Apollonia Antiquities Park. For years, Adam Teva V’Din had advanced a series of legal actions based on the argument that it was “unreasonable” to build new homes and school on contaminated land that had not been surveyed or cleaned. Eventually, after two appeals to the Supreme Court, the justices agreed that is is not reasonable to build homes on that site and the permit to plan new homes at the site was cancelled. Had Adam Teva V’Din not struggled through a succession of planning objections, petitions to the District Court, and appeals to the Supreme Court, the explosion could have taken place at the heart of a new neighborhood.

How does “reasonableness” pertain to the environment?

Reasonableness as it pertains to the environment can be broken down into three categories:

  • The government’s actions in environmental matters,
  • Avoiding the exercise of authority in environmental matters, and
  • Appointments in the environmental field.

The first of the three expresses the reasonable fear that many cases made over the years exceeded the range of reasonableness due to their severe damage to the environment. We have used this concept to secure, for example, that beaches stay open to the public without need for payment.

The second clarifies that the amendment is also to prevent judicial review of the reasonableness of the government and its subordinates refraining from exercising authority. This exemption would apply without reservation, even when the government and its ministers are aware of the environmental and health dangers of not exercising their authority and not dealing with environmental injustice.

Over the years, the Adam Teva V’Din personnel have seen numerous times that the failure to exercise governmental authority to deal with an environmental and health hazard stems from unjustified considerations. In other words, when environmental injustices occur, many times the regulator, who has the authority to deal with the injustice, refrains from exercising his authority at a level that exceeds the realm of reasonableness. In light of this, unreasonable avoidance of exercising authority in matters concerning the environment and public health must be subject to judicial review and judicial supervision of reasonableness. This too is grounded in our work, and we refer to this concept when we petition the government about their lack of action regarding regulation of PFAS (“forever chemicals”) contaminating Israel’s water wells, as well as the government’s inaction regarding the heavily polluted and harmful air surrounding the Tel Aviv central bus station.

The third point relates to the importance of judicial review in matters of appointments, which concern sensitive environmental matters, is critical, both in light of the candidate’s great influence and in light of the wide-ranging consequences for the environment and public health. An example of this point in action was our petition against the appointment of a Director of the National Planning Authority whose spouse had extensive interests in real estate entrepreneurship.

What next?

It is anticipated that the Supreme Court will hand down its decision within a few weeks. Adam Teva V’Din will, like the rest of the petitioners, patiently await the court’s ruling.

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The Supreme Court hears why the ‘reasonableness doctrine’ is essential to environmental protection.

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