PLAYING HARDBALL WITH AIR POLLUTERS
The other area where the EPS began to flex its newfound muscles was in controlling air pollution from factories. Just as the Service went after the “big boys” in getting environmental impact statements started, it began ambitiously in the air pollution business as well.[159] Marinov and his legal advisor, Ruth Rotenberg, targeted Haifa's Electric Power Station, Oil Refineries (see Figure 23), and Nesher Cement plant. It was no simple task.
The Kanovich law empowered the Ministers of Health and the Interior to jointly issue emissions permits, which came to be called “personal de-crees.”[160] Despite the law's clear directive, for twenty years neither min-istry had much interest in the issue of air pollution. Fewer than a handful of decrees had ever been issued. The first was a 1972 order to Haifa's Nesher Cement factory requiring installation of electrostatic precipita-tors.[161] This step was taken only after the State Comptroller's report char-acterized the dust particles from the factory as the “principal polluter in the Nesher locality.”[162] When that order didn't help, Haifa-based Technion professor Antonio Feranio went to the Supreme Court and argued that residents in the Nesher community had been struggling for fifteen years to get the plant to clean up its act.[163] The Court's favorable decision left the ministers no choice.
As the EPS settled into its new identity at the Ministry of the Interior, it latched onto any authorities its minister had. Suddenly air pollution control was no longer an orphan. The trouble was that both potential par-ents seemed to wake up to their responsibilities simultaneously, and a custody battle ensued. The Ministry of Health continued to resent the competition, even though their Sanitation Department was primarily fo-cused on sewage and drinking water quality.
In 1980, for example, despite the existing auto emissions standards under the Kanovich law, the Minister of Health promulgated his own sep-arate regulations for vehicular pollution under the Public Health Ordinance based on less-than-precise visual assessments made by inspec-tors.[164] Only Ministry of Health personnel were authorized to enforce the new “Ringleman” emissions standard.[165] Although the EPS and the Sanitation Department staff quibbled over which vehicle emissions crite-rion was more appropriate, they both seemed to miss the point. The black smoke they were trying to measure came from diesel-powered trucks and buses—only 10 percent of the country's fleet. The steady buildup in emis-sions of nitrogen oxides and hydrocarbons from gasoline-burning auto-mobiles was harder to see and smell. Unfortunately, controlling these gases was primarily the province of the Ministry of Transportation, which was for the most part apathetic to the issue.
In 1981 Marinov found a way to bypass the Ministry of Health's pro-fessional staff and presented his case directly to the Minister, Eliezer Shustack, who agreed to relinquish his own authority in the area of air and noise pollution—leaving the Kanovich law solely in the hands of the Minister of the Interior. The Knesset approved the change on May 3, 1982.[166] Interior Minister Dr. Yosef Burg was a detached but agreeable overseer. Limited only by Kuberski's naturally conservative disposition, the EPS could finally go after air polluters.
From the time that the Nesher Cement emissions first began to annoy the factory's neighbors in the 1920s, Haifa's air was uncontested as the dirtiest in Israel. By the 1980s the situation had reached intolerable levels. According to Israeli regulations, 99 percent of sulfur dioxide concentra-tions had to fall below 0.3 parts per million. Under no circumstances could the concentrations exceed 0.6 ppm, at which level health impacts were al-ready acute.[167] (Today's standards are 40 percent more stringent.[168]) In 1982, monitoring stations around the city reported 109 violations of the recommended 0.3 ppm standard for sulfur dioxide. On fifteen occasions that year, Haifa had concentrations at twice that level, posing a serious health hazard, in particular to sensitive populations such as asthmatics.[169]
There were meteorological, industrial, and legal reasons for the city's poor air quality. Meteorologically, the scenic Carmel mountains slope down to form an L-shaped seaport with a bowl-like topography that stifles air exchange and occasionally leads to inversions. The industrial zones of Haifa Bay are home to a large collection of the country's chemical indus-tries. In addition, oil refineries and a large electric power station produced most of the area's sulfur dioxide.
What made the situation so frustrating was that the particularly egre-gious factories were essentially untouchable, a peculiar legal situation that had its origins in the Mandate period. To ensure the prosperity of the oil refineries, British authorities granted Haifa Bay industrial zone political autonomy as an independent jurisdiction. Plants operating in Haifa's northern suburbs continued to enjoy what became known as extraterrito-rial status—and they flaunted it. Municipal governments were still con-sidered the key to controlling air pollution (with Ministry of Health oversight) through business licenses. Yet they were powerless to rein in Haifa's petrochemical industry.
The situation was particularly galling for EPS legal adviser Ruth Rotenberg, who had joined EPS in 1978 after working for the legal de-partment at the Ministry of Transportion. Her expertise in maritime law eventually led her to focus on marine pollution issues. Rotenberg, who grew up in Haifa, was keenly aware of both the suffocating conditions in the scenic port city and their origins.[170] She also had the benefit of an un-usually competent local environmental unit as a partner. The EPS had en-couraged the city of Haifa to bring together the other municipal author-ities in the Bay area and establish a regional “Haifa Union of Cities” Environmental Unit. Not only did its Director, Zwy Fuhrer, see himself as a regulator, but his deputy, Dr. Bernanda Flicstein, with a passion for Haifa's environment and a Ph.D. in chemical engineering, had the techni-cal qualifications and the temerity to go head to head with the industry experts.
The first big break for Haifa's air came in a Jerusalem courtroom. Haifa Sulfides had begun constructing a new building without a permit. The Ministry of the Interior, fed up with the extraterritorial insolence, inter-vened, and the issue reached the Supreme Court. Justice Meir Shemgar ruled that the Planning and Building Law was in force throughout the entire country. To overcome the Mandate exemption, Shemgar called on the Minister of the Interior to cancel the British High Commissioner's order, which he did. Suddenly it appeared that the Oil Refineries might at long last be subject to government controls in other realms. And that is
On May 4, 1984, the Minister of the Interior, Yosef Burg, signed into law a personal decree controlling emissions at Haifa's electric power sta-tion. The Electric Company was always more congenial than other Haifa factories on the subject, and a cooperative process began. Although there is nothing in the law that requires consultation, the EPS created an infor-mal notice and comment process. The utility had a meaningful opportu-nity to offer its input about the technical terms of the decree.[172]
The Haifa Oil Refineries, however, were a much tougher customer. The EPS sought to reduce the sulfur content in the fuel being burned at the sprawling plant. The fuel that was used in the refineries came from the Abu Rodeis fields in Egypt and from Mexico. In terms of sulfur, it was some of the filthiest crude in the world.[173] The refineries argued that they had al-ready processed the sulfur content down to levels of 3.2 percent. Any further reductions would jeopardize the plant's profitability. Four hundred workers would be jobless. The environmentalists from Haifa were even accused of sabotaging the peace process with Egypt, by undermining the petroleum agreement.[174]
In retrospect the attack appears to be cynical “best-defense-is-a-good-offense” industry posturing. (Today sulfur levels at the plant range from 0.5 to 1 percent, and the plant operates with considerable profit.) But at the time Kuberski was afraid that his ecozealots may have gone too far. Negotiations dragged on. The Oil Refineries had no intention of knuckling under like the Electric Company. Just when things were starting to move, Yosef Burg, who had been the Minister of the Interior for more than a decade, announced his resignation in light of the new election results. Rotenberg was desperate. If Burg did not sign the decree before departing, the regulations would once again be postponed indefinitely.
On his last day in his office, she managed to get the most recent draft of a Personal Decree for the Oil Refineries through Marinov and past Kuberski. On September 12, 1984, Burg signed.[175] Flicstein, from the Haifa environmental office, remembers tears streaming down her cheeks when she got the call from Rotenburg informing her that months of efforts had borne fruit and that the controls were finally binding.
Celebration was premature, however. The Oil Refineries were still disin-clined to invest in cleaner fuels. With a different government in place, it was a new ballgame. They appealed directly to Prime Minister Shimon Peres, who passed the matter on to his Office Director General, Abraham Tamir. For its part, the Ministry of Energy backed the industry position.[176] A committee
Environmentalists were not surprised when the elaborate warning sys-tem for signaling the switch to low-sulfur fuels at the Electric Company and the Oil Refineries did not work. It would take another round of per-sonal decrees and court cases during the 1990s to bring Haifa's pollution levels down to permissible levels. Nonetheless, there was enormous impor-tance to the first generation of air quality decrees. No less important were enforcement actions initiated by Rotenberg and the Haifa Union of Cities' team when the Oil Refineries blatantly violated the decree. They had been caught red-handed burning 3.5 percent sulfur fuel during a period when it was expressly forbidden. Flicstein passed on the incriminating evidence to the police.[178] Forty times the refineries had ignored the City's notifications to move to low-sulfur fuel. They also refused to shut the plant down when facilities were not functioning optimally, even though the personal decree required it.[179]
The case produced some of the best lore from Israel's limited air pollu-tion enforcement activities of the 1980s. Haifa's Zvulon Police Station was surprisingly supportive. As the story goes, Sari Mizrachi, a woman ser-geant with a specialty in investigating sexual offenses, was given the job of interrogating the chairman of the Oil Refineries (he was Zvi Zamir, a former Director of Israel's intelligence agency, the Mossad, and not very used to being the one having to answer the questions). When Bernanda Flicstein, the Haifa regulator/scientist, tried to tutor Mizrachi so that she could carry out her interrogation duties effectively, the policewoman com-plained that the chemical formulas were incredibly boring. She did not hesitate to leave Flicstein languishing in her office for hours as she ran out to stage an ambush in her (more interesting) area of expertise.[180]
Eventually, though, Mizrachi caught the environmental spirit. Zwy Fuhrer and Flicstein from the Haifa Environmental Union office went along to the Refineries to spoonfeed her the incriminating materials when she interrogated Gideon Engel, the plant's environmental engineer.[181] The rumor circulated that plant manager and former spymaster Zamir be-came outraged when it was suggested that, as a criminal suspect, he would have to deposit his passport at the local police station. On December 28,