The reasonableness standard, Israel's current crisis, and Edward Coke

As protests continue to erupt in Israel over the government's proposal to oust the power of courts to review decisions of the government and its ministers for reasonableness, I thought it worth taking a look at the historical origins of this doctrine in an area of particular interest to this blog - water law.

Israeli administrative law's reasonableness standard was inherited from the British, who ruled Palestine from 1917 to 1948 and imported much English law and legal culture to the middle eastern jurisdiction. In the 1928 Supreme Court case of AG v Altshuler ([1920-1933] PLR 273), for instance, the court held that a municipal bylaw of Tel Aviv was invalid due to unreasonableness, relying on the English precedent of Kruse v Johnson ([1898] 2 QB 91).

Sir Edward Coke

As many will know, the reasonableness standard was apparently introduced to English law by the 1598 decision of the Court of Common Pleas in Rooke's Case (5 Co Rep 99b, 77 Eng Rep 209). At issue was the power given to the Commissioners of Sewers by statute (the 1531 Statute of Sewers) to assess lands adjoining water courses in order to fund the building of works to protect adjacent lands from flooding. The Commissioners assessed a certain Carter, who had seven acres of land flood-prone adjoining the Thames, with the costs of repairing the banks of the river along a long segment of the river, leaving a further 800 acres, possessed by others and similarly threatened by the waters, free of charge. In their defence, the Commissioners pointed to the language of the statute (s 3), which gave them the power to make repairs 'as Case shall require, after your Wisdoms and Discretions'. Edward Coke's report explained what he saw as the rationale behund the court's rejection of this claim:

Notwithstanding the words of the commission give authority to the commissioners to do according to their discretions, yet their proceedings ought to be limited and bound with the rule of reason and law [emphasis added - DS]. For discretion is a science or understanding to discern between falsity and truth, between wrong and right, between shadows and substance, between equity and colourable glosses and pretences, and not to do according to their wills and private affections ; for as one saith, talis discretio discretionem confundit [such discretion confuses discretion].

So administrative discretion, explained Coke, must be subject to 'the rule of reason and law'.

One might have legitimate criticisms of the way the reasonableness standard is currently applied in Israeli law, but it is clear that the current government's main motivation in its proposed legislation is simply the desire to be free of the rule of reason and law - which explains why there are hundreds of thousands of us out on the street protesting...

Crusader riparian rights

The latest issue of Water History has an article by Tobias Hrynick, "The mills of god grind slowly: the Na’aman River milling dispute and the thirteenth-century hydraulic crisis in the Crusader States", that looks into a dispute over water rights between neighboring water mills that seems a precursor to the riparian-rights disputes that were so numerous in the nineteenth century. The abstract:

In the mid-thirteenth century, the Hospitaller and Templar military orders engaged in a long-running dispute over the supply of water to two hydraulic gristmills outside the city of Acre in the Crusader Kingdom of Jerusalem that prompted international scandal, royal and papal intervention, and mutual attempts at sabotage. This article examines this dispute in the context of a broad survey of milling operations in the Crusader States and argues that this dispute was representative of a widespread hydraulic shortfall in the Latin East by the thirteenth century, when the kingdom’s military collapse and the increased cultivation of sugar cane aggravated a pre-existing shortage of water-power in the relatively labor-poor eastern Mediterranean. The efforts of local landholders like the military orders to maintain access to hydraulic resources provide an instructive example of a pre-modern society’s efforts to accommodate an environmental crisis.

The Templar mill on the Na'aman today (photo: Liorca)

More on water by-laws in Mandate Palestine

I recently posted a piece on H-Empire, based on my article, "Horizontal and vertical influences in colonial legal transplantation: water by-laws in British Palestine" (open access) (see also my recent post on this blog). An excerpt:

Zoltan Kluger, Dizengoff Square Circle in Tel Aviv, 1938 (National Photo Collection)

I ask two questions about the local bylaws enacted in the Mandate period (mainly in the last decade and a half of British rule, which ended in 1948) in the field of water supply and sewage (I'm working on a wider project on this history of water law in Mandate Palestine): Did the initiative for these bylaws, as well as the legal norms and language embodied in them, come from the residents of Palestine and their elected local governments or was it primarily the result pressure applied by the British rulers? And did legal influence cross communal boundaries, between Jewish and Arab local authorities, or did Arab towns tend to copy from other Arab towns, and Jewish from Jewish? The first question I conceptualize as one of "vertical" influence; the second as "horizontal".

Charging for water in Mandate Palestine

The American Journal of Legal History recently published my article, "Horizontal and vertical influences in colonial legal transplantation: water by-laws in British Palestine". Due to space constraints of the publisher, I was not able to include in the article some sources that I think are interesting from an environmental-legal perspective. Here are two of them, both penned by engineers serving as head of the water department of the of the Jerusalem Municipality in support of the city's policy of requiring water metering (while most Palestine local authorities also allowed charging flat rates). I think they call to mind current debates about water pricing in various places around the world, explicitly raising issues of efficiency, equity, conservation, and public health:

A. In 1927 Jerusalem's Water Engineer, Andrew (Andor) Koch, was hired by the Tel Aviv Municipality to consult on its system of water supply. In his report to the Tel Aviv Municipal Council (Report on the Tel Aviv Municipal Water Supply, 25th Dec. 1927, Tel Aviv Municipal Archives file 835/04-1029B), Koch explained why he supported metering over flat charges:

I wish to mention that throughout the whole world, now the metered system, as the only correct means for charging Consumers is gaining ground.- There used to be a conception before that water is not a saleable good, but a public property, obtained from nature and therefore the selling of same per volume as any other merchandise, is not justified.- A more close study and moreover the practical results of such an assumption have clearly shown however that earlier or later the free use of water is leading to unnecessary, even expensive (especially concerning the disposal of waste water) waste on the one hand, and inevitably, to the undue exhaustion of the  available sources of supply on the other hand.

Water tower in Tel Aviv, built 1924

In memoriam: Meir Shamgar

Meir Shamgar as a detainee in Eritrea, 1946

Friday saw the passing of one of the greats of Israeli law, former Justice and President of the Supreme Court Meir Shamgar. Shamgar has been eulogized elsewhere, mainly with regard to his many important contributions to constitutional law and public law in general, but I'd like to shine a light on an important decision of his in an environmental nuisance case, about which I've written (in Hebrew). (I hope the case will be translated into English soon.)

Ata v Schwartz (1976) is an Israeli classic. Briefly put, Schwartz sued a neighboring textile factory, the largest in Israel at the time; asking for an injunction against the noise emitted by its cooling and ventilation systems. Despite the factory's warning that granting the injunction would lead to the layoff of thousands of workers, the trial court as well as the two appeals courts that considered the case upheld Schwartz's right to an injunction, noting that the relevant statute rejected a "balance of the equities" test for permanent injunctions, and emphasizing the importance of every person's right to live free of harsh disturbances.

What makes the case a chestnut for teaching, beyond the stark facts and bold result, is Justice Shamgar's discussion in his decision for the Supreme Court of the then-new economic approach to law. Unbidden by the parties, Shamgar linked the defendants' claim that an injunction should be granted only if the balance of the equities was in the plaintiff's favor (i.e. that the harm eliminated by the injunction would be greater than the cost of complying with it) to classic arguments by Ronald Coase, Richard Posner, and Guido Calabresi (with Douglas Melamed), arguing for wealth- or utility-maximization as the guiding principle of nuisance law. I write "classic arguments", but Shamgar's decision was really the first (in the world) to discuss the works of these authors at any length. Why "the law and economics movement" received its first substantial treatment in an Israeli, and not an American, court is a subject for another time.

Yom Kippur, Maimonides and greenhouse gas regulation

Tonight and tomorrow are the Jewish High Holiday of Yom Kippur, the Day of Atonement. In a recent debate about Israeli climate change policy my colleague at TAU, Pinchas Alpert, invoked a seasonal analogy based on a passage from Maimonides, the great medieval Jewish jurist and philosopher.

An article by Nadav Feldman in The Marker Magazine (in Hebrew) quotes an Israeli religious neoliberal blogger (yes, that American combination has recently reached Israel, thanks to American funding) as arguing that Israel should not take any regulatory action against greenhouse gas emissions. His lead argument is that Israel's contribution to global emissions is but a small proportion of global emissions, so any action taken by Israel will impose local costs without bringing about any benefit.

In response, Alpert, a climate scientist, points to a passage from Maimonides's Laws of Repentance, which many Jews study this time of year. Maimonides writes (3:4, transl. Eliyahu Touger):

Maimonides

A person should always look at himself as equally balanced between merit and sin and the world as equally balanced between merit and sin. If he performs one sin, he tips his balance and that of the entire world to the side of guilt and brings destruction upon himself.

[On the other hand,] if he performs one mitzvah, he tips his balance and that of the entire world to the side of merit and brings deliverance and salvation to himself and others. This is implied by [Proverbs 10:25] "A righteous man is the foundation of the world," i.e., he who acted righteously, tipped the balance of the entire world to merit and saved it.

So, too, for environmental issues such as climate change, argues Alpert, every person's contribution to the problem or its solution is decisive, and we each need to see ourselves as responsible for our current predicament.

May we all be sealed in the book of life.

The "government take" and environmental protection

Suncor oilsands mine near Fort McMurray (Todd Korol, Toronto Star)

Though Israel's coming elections revolve around other issues (and non-issues), a major political issue in Israel over the last decade has been how to divide the profits of the country's natural gas finds between the developers and the public (the legal owners of the resource). While environmental groups have argued - and this has also been my natural inclination - that the public's ownership should be expressed with a relatively large "government take" (the percentage of revenue paid over to the state in the form of royalties and taxes), I have also noted that increasing the government's financial interest in the gas decreases its motivation to effectively regulate the environmental aspects of its development.

Hereward Longley's recent article in Environment and History, "Conflicting Interests: Development Politics and the Environmental Regulation of the Alberta Oil Sands Industry, 1970–1980", provides historical support for this argument. The abstract:

This article examines the relationship between development politics and environmental regulation and research during the first commercial development phase of the oil sands industry. As demand for oil grew after the Second World War, and oil supplies from the Middle East became less stable, oil companies began building facilities to produce synthetic oil from the bitumen deposits in north-eastern Alberta. The commercialisation of the oil sands industry coincided with the formalisation of environmental policy at both the provincial and federal levels. When the Progressive Conservative Party, led by Premier Peter Lougheed, formed a government after winning the 1971 election, it strengthened and expanded the scope of environmental regulation into the mid-1970s. The 1973 oil crisis changed the economic viability and importance of the oil sands industry. For Lougheed, the oil sands industry became a cornerstone of the PC government’s goals to diversify the Alberta economy. To save the Syncrude project after Atlantic Richfield withdrew its thirty per cent stake in the consortium in December 1974, the Alberta government bought a ten per cent position along with the federal government and Ontario. This article argues that investing in the oil sands industry created a conflict of interest for the Alberta government, as it became both the regulator and the developer of the resource. Using a range of archival sources and oral history, it shows how Alberta’s environmental policies and research programmes were sidelined by the Lougheed government in the latter half of the 1970s, culminating in the cancellation of the Alberta Oil Sands Environmental Research Program in 1980. The marginalisation of environmental regulation and research has contributed to the environmental impacts of the oil sands industry on ecosystems and Indigenous communities, and limited public awareness of environmental change.

The interplay of case law and regulations

Dave Owen posted had this interesting thought this week at Environmental Law Prof Blog, regarding a recent discussion on canonical environmental law cases:

The idea of a canonical environmental law case might be an oxymoron.  After all, with a few constitutional law exceptions like Lujan, most classic environmental law cases interpret statutes, which generally means the case is less important than the statute, which suggests, in turn, that the statutes are really the canon.  But that's kind of boring; if we agree that the environmental law canon is the Clean Air Act, the Clean Water Act, RCRA, and so on, that makes our field sound dull in comparison to fields where cases really have defined the law.  So perhaps, if a canon, to speak metaphorically, includes the giant trees within a forest of law, we should treat the underlying statutory and constitutional framework as the soil out of which those trees grow.

But even if my strained metaphor works, that still doesn't explain why the canon should involve cases.  Cases are good teaching devices, and they do matter, but they're badly overrated.  In many areas of environmental law, regulations have much more reach and importance.  So perhaps the question we professors really should be debating, as we procrastinate class preparation and the final stages of grading, is which environmental regulations make up the field's canon. 

I agree with Dave's point that statutes and regulations are much more important in environmental law than case law (and that this is a challenge in teaching the field!). However, over time I have become increasingly aware of how important litigation has been historically in spurring and shaping environmental regulation, a point made by (among others) Karl Boyd Brooks in Before Earth Day.

I recently had a conversation with an Israeli (non-lawyer) environmental professional who had been involved in drafting noise regulations in the 1980s, who explained to me that they were designed to reflect the guidelines laid out by an Israeli Supreme Court nuisance case in the 1970s. From my lawyer's perspective this made no sense, as the case was decided according to traditional principles of nuisance law, which should have been largely irrelevant to the noise regulations, enacted under statute. But to the engineers and scientists working on the regulations, the rules laid out by the court seemed to represent some kind of eternal truth, one they were bound to give expression to in the regulations. I think that this type of thing has happened quite a lot.

25 years of Israeli environmental law?

A strange message hit my email inbox today, advertising an upcoming event hosted by an Israeli law school and a leading Israeli environmental NGO to celebrate 25 years of Israeli environmental law.

I'm more than a little puzzled by this as I'm not sure how exactly they came up with 1993 (or thereabouts) as the beginning of Israeli environmental law. Important environmental statutes, including the Regulation of Trades and Industries Ordinance, 1927; Oil in Navigable Waters Ordinance, 1936; Public Health Ordinance, 1940; Wild Animal Protection Law, 1955; Abatement of Nuisances Law, 1961; and the 1971 water pollution amendments to the Water Law (itself enacted in 1959) all predate 1993 by quite a bit. The Abatement of Environmental Nuisances Law, 1992 more or less fits the timing, but it happens to be a pretty unused (and useless) law. (I've written about a number of these statutes in a book chapter, "A Prolonged Recessional" (Academia and SSRN).)

Old Knesset (parliament) building on King George Street, Jerusalem

If court decisions are what the organizers have in mind, the early '90s again seem like an odd place to start, given earlier cases such as the 1959 public trust doctrine case Puterman v AG, a series of 1960s Supreme Court cases on air pollution, and so on.

It may be that the organizers have in mind the founding of said environmental NGO (Adam Teva V'din), founded circa 1990, though one might be forgiven for thinking that to be a somewhat self-centered view.

So I'm stumped.

Enclosure in Israel and Palestine

In developments close to home, the latest issue of the New York Review of Books has a review by Raja Shehadeh of Gary Fields's Enclosure: Palestinian Landscapes in a Historical Mirror (U. California Press, 2017). Some excerpts:

Starting in the mid-nineteenth century, a series of legal developments in the Ottoman Empire—which ruled Palestine until 1917—had enabled the growth of... large land holdings. They included the promulgation of the Ottoman Land Code of 1858, which attempted to eliminate the musha system, whereby land was held in common, and required that the cultivator-turned-owner register his land with Treasury officials.

*****

The legal processes the Ottomans had begun were continued in the years after the end of their rule—first by the British military occupation of Palestine from 1917 to 1922, and then when the League of Nations granted the British a mandate over Palestine from 1922 to 1948. During both periods, the British continued to revise the land laws with a view to making the land more marketable and facilitating its sale to the Zionists. Among the British figures whose ideas provided the foundation for British land policy in Palestine was Sir Ernest Dowson, who believed that what the Palestinian fellah, or peasant, needed was “enclosure and partition of the common fields.”

In his book..., Gary Fields defines enclosure as “a practice resulting in the transfer of land from one group of people to another and the establishment of exclusionary spaces on territorial landscapes.” Dowson was intent on creating blocks of property that could be surveyed and registered with the Mandate Land Authority. Mandate authorities also sought to repeal the musha system. British officials were convinced that the enclosure of common land, which had already been implemented in England, had brought about “improvement” and “progress,” and they sought to replicate it in Palestine.

This British policy represented a victory for the Zionist movement. It made it possible for more Palestinian land to be sold to Zionist Jews. 

The Israeli (and Ottoman and Islamic) public trust doctrine

Chapter heading from the Hebrew translation of the Mejelle by Frumkin

Zafrir Rinat, Haaretz's environment reporter, recently wrote about the story of Moshe Puterman's arrest for entering a municipal beach without paying the admission fee, and the court decision which might be thought of as a foundational document of an Israeli public trust doctrine:

One day in 1959, Puterman and a few friends went to the seashore in Herzliya. As was usual at that time, the municipal attendants demanded that they pay in order to enter. But Puterman was fed up with paying, and he snuck in – with the attendants hot on his heels.

“There was a scuffle and I escaped, but they caught me and I was taken into custody,” he recalled recently. “I told the attendants that this was a public area and that they were acting like thieves. It upset me to pay for something that should have come to me by right.”

Puterman was convicted in Tel Aviv Magistrate’s Court for refusing to pay and for resisting the attendants with force. He was ordered to pay a fine. But he did not let the matter rest there.

“My lawyer was the late Avraham Socholovsky, who was also a personal friend,” Puterman told me. “As we left the courtroom, I asked him, ‘Do we keep going?’ ‘Of course,’ he replied.”

Socholovsky appealed, and Tel Aviv District Court Judge Jacob Gavison overturned the earlier conviction. [see excerpts of the decision below-DS]

*****

The ruling became a precedent that enshrined the public’s right to free access to the seashores. According to attorney Amit Bracha, executive director of Adam Teva V’Din: the Israel Union for Environmental Defense, the verdict led to legislation, in 1964, that prohibits charging an entry fee to beaches where only basic services – lifeguards, toilets, showers – are provided (though a fee can be charged for parking near a beach). It also led to the High Court of Justice decision in a petition filed by the IUED against the Interior Ministry more than 10 years ago. The court then instructed the ministry to order local governments to uphold the law concerning free entry to beaches. Nevertheless, there are a few beaches that still charge an entry fee.

I've translated below some excerpts from Judge Gavison's decision, which, it is worth noting, predates the well-known line of New Jersey beach access cases by a decade (see here, pp. 17-22). (I'd also like to note that Gavison taught law at the Tel Aviv extension of Hebrew University, the predecessor of the institution at which I teach.) Two points of contact with the American public trust doctrine seem interesting:

Oil and gas interests, government, and legal scholarship

Over on Jotwell, Ezra Rosser recently gave a glowing review to Oliver Houck's recent article, "The Reckoning: Oil and Gas Development in the Louisiana Coastal Zone", writing that it "is easily one of the best articles that I have read in the last ten years and should be required reading regardless of one’s specialty". There's no abstract for the article, but I'll quote at length from the review, which not only outlines the environmental-legal-historical argument, but also has some valuable thoughts on legal scholarship:

Sam Kittner, State Capitol of La. and Exxon Explosion, December 24, 1989 (LOC)

Professor Houck convincingly argues that the state government and oil and gas interests are seen as essentially the same, so much so that Houck refers to them collectively simply as “the company.” Louisiana actively courted oil and natural gas development to such an extent that the very state entities tasked with protecting the coastal zone participated in the promotion of development above all else, even above reason. As the article shows, it would be inaccurate to say that the state became the puppet of corporate interests or that it rubber-stamped the web of canals that destroyed the wetlands because nearly every Louisiana institution was and is invested in the rush to please big energy. Problematically, the list of those involved in opening up the wetlands, in denying the connection between development and destruction, and in attempting to shift the restoration costs away from oil and gas companies and unto the American taxpayer includes not only the ironically named Louisiana Department of Natural Resources, which time and again saw itself as an industry partner, but also parish governments, state-university academics and centers, politicians at the federal, state, and local levels, and even major environmental groups. As Professor Houck shows, no part of the Louisiana coast has been spared from devastation caused by “the company,” yet “the company” is unwilling to take responsibility and has largely succeeded in avoiding the costs associated with such destruction.

Tamara Lotner Lev, a doctoral student writing (under my supervision) on environmental regulation of offshore oil and gas drilling, has come to a similar conclusion about the role of Israeli regulators, calling it "reverse capture".

Rosser also sees Houck's article as a model piece of scholarship:

Colorado and Israeli water law

If you'll be in the Denver area this week, you might be interested in the Colorado Water Congress Annual Convention, at which I'll be speaking twice.

Elwood Mead was an influential figure in the development
of Colorado water law in the 19th century,
and in Palestine and Israel in the 20th

This Wednesday afternoon I'll be speaking on "How Colorado Water Law Came to Israel", where I'll talk about how the legal rules and principles developed in nineteenth-century Colorado influenced policymakers around the world, why the British rulers of Mandate Palestine looked to the western U.S. for a model of water law, and Zionist attitudes to the importation of this model into Palestine and then Israel.

On Thursday evening I'll be giving the keynote presentation at the CSU Water Resources Archive "Water Tables" event, where I'll talk about my book, The Colorado Doctrine: Water Rights, Corporations, and Distributive Justice on the American Frontier (Yale UP, 2012).

Environment at ASLH - Report

I wasn't able to make it to all the environment-related papers at this weekend's annual meeting of the American Society for Legal History in Miami, but here's a brief report of the papers I heard:

Friday morning's exchange panel with the Israeli History and Law Association had two papers on environmental topics. Yair Sagy and Nadia Tzimerman's “‘The Responsible American Oil Men’ and the Israeli Petroleum Law of 1952” uncovered the decisive influence of an American oilman and his Israeli son-in-law on the shape of the statute governing oil and gas exploration and exploitation in Israel, a law which has emerged from its longstanding obscurity in the wake of recent major finds of natural gas off Israel's coast. (Sagy and Tzimerman's research was the subject of recent press coverage in Israel, where legal and political battles over the law are raging.) Orli Sela's “TVA on the Jordan River: American Influence on Water Resources Management and Regulation in the End of the British Mandate and the First Decade of the State of Israel” talked about the influence of American law and figures such as Walter Lowdermilk on the Israeli Water Law of 1959.

Later in the day I heard a paper by myself as part of a panel on attitudes to American law in nineteenth-century Canada. My paper, “How Smoothly Did U.S. Water Law Flow Northwards?”, examined the use that Canadian riparian-rights cases made of American sources in the first half of the nineteenth century, noting that Canadians often cited these sources not only for their statements of American law, but also for their statements of French water law.

At the same time, at the Kathryn T. Preyer Prize Panel, Matthew Axtell presented his “Customs of the River: Governing the Commons within a Nineteenth-Century Steamboat Economy”, a paper that we've noted previously.

Additional reports or comments on these papers or others are welcome!