Case Number

HCJ 6971/11

Date Decided

4-2-2013

Decision Type

Original

Document Type

Full Opinion

Abstract

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

This is a motion challenging the constitutionality of section 74 of the Prevention of Hazards from Asbestos and Harmful Dust Act, 2011 (“Asbestos Act”). The motion is directed primarily at the obligation of the moving party (“Eitanit”), an asbestos-cement factory in the Nahariya area, to shoulder the cost of half the project’s expenses, up to NIS 150m.

The High Court of Justice (written by Justice Hendel, and with Chief Justice Grunis and Justice Zylbertal concurring) dismissed the motion and ruled that section 74 of the Asbestos Act infringes on Eitanit’s right to property but does not discriminate against it. The Court held that section 74 applies only to industrial waste that is a result of Eitanit’s factory work processes. Since Eitanit’s right to property was infringed, the High Court of Justice only addressed the issue of whether the infringement was acceptable under the limitation clause of section 8 of Basic Law: Human Dignity and Liberty. The High Court of Justice relied heavily on comparative law, because, among other considerations, this is a new legal issue with an obviously universal aspect, and because no aspects unique to Israel were demonstrated. Additionally, the High Court of Justice emphasized that this was a matter of judicial review, rather than administrative review, which impacts the extent of permissible discretion by the Knesset.

The High Court of Justice clarified that the source of rights infringement is primary legislation, that is, a statute that was enacted by the Knesset in a proper procedure. The Court rejected Eitanit’s claim that this is not a “statute” in terms of the limitation clause because it is a specific, personal statute. It is a formalistic test, which inquires mainly whether the infringement upon basic rights was done in or by authorization of primary legislation. Here, the answer was in the affirmative. The High Court of Justice found that the purpose of section 74 of the Act was to launch a project to remove asbestos waste from the Western Galilee. This is a worthy and important purpose, which fits the values of the State of Israel. The High Court of Justice was prepared to assume that a secondary purpose of the Asbestos Act was realizing the principle of “the polluter should pay” and found this, too, to be a worthy and appropriate purpose.

The High Court of Justice addressed whether the means identified in section 74 of the Asbestos Act was proportionate. First, the High Court of Justice examined the rational connection, considering both purposes, and held that for both there is a fit between the means and the purpose. As to whether these were the least restrictive means, the High Court of Justice found that the option of “self implementation” that Eitanit proposed would not realize the purpose of section 74. Additionally, the Court found that the mechanism the legislature chose includes checks and balances that minimize the harm for Eitanit. As for the narrow proportionality test, the Court held that section 74 of the Act does not specifically target Eitanit, but the focus on Eitanit is a result of the reality caused by Eitanit itself.

On the issue of strict liability, the Court ruled that although it is a problematic and harsh regime, three considerations reduce its difficulty: considerations of justice and fairness, deterrence and assuming costs, the evidentiary difficulty in fault-based liability systems; support for strict liability in many countries around the world; and a certain dimension of Eitanit’s factual awareness regarding asbestos harms. The High Court of Justice found the Asbestos Act is one of narrow active application. It applies for an existing situation, but this is no ordinary active application: all the factual elements have existed in the past, and section 74 does not apply to the future. It was also found that had the Act been completely applicable retroactively, that would not have been determinative, but rather another factor in the constitutional balance. The Court found three mitigating factors: the element of expectation or knowledge of risk, the scope of the danger, and the rise in many countries’ support for retroactive liability. In summary, the Court ruled that, although the infringement of Eitanit’s rights should not be disregarded and the legislature created a new landscape, the infringement passes constitutional muster under the tests set in the limitations clause.

Keywords

Administrative Law, Constitutional Law -- Basic Law: Human Dignity and Liberty, Constitutional Law -- Equality Before the Law, Constitutional Law -- Legislation, Constitutional Law -- Property Rights, Environmental Law, Health

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