The preliminary decision on Israel's gas exports offered by Chief Justice
Grunis, Supreme Court President, contained wording and hinted a line of
reasoning that may have far-reaching legal consequences.
In last week's
dramatic hearing, the Supreme Court surprised court petitioners and respondents
alike by offering to hear the petition on Israel's gas exports before an
extended bench of judges, giving the case "high importance" and stating the case
should be ruled "on its merits." In this way, one of the most important and
highly regarded institutions of State dramatically and firmly steered the
controversy surrounding the export of Israel's gas to the wider public sphere,
dramatically elevating it above and beyond its prior realm of grassroots
To recap, three years ago, substantial gas reserves were found in
Israel's territorial waters. The issue of gas export - if, when, how much- was
deliberated by the inter-ministerial "Tzemach Committee". In 2012, after more
than a year of meetings, the committee recommended a 53% ceiling of gas exports
from the Israeli resources.
Acute protests followed, citing a lack of
transparency and rigor, disregard of the long-term public interest and a
pro-export bias in estimations of gas reserves and demand. Many export opponents
were dissatisfied by the government's reduction of the export quota to
In July 2013, some members of Knesset (MKs Yachimovich, Rivlin,
Braverman & Gafni) and interest groups, (the Israel Energy Forum, "Israel
Yakar Lanu", the Academic Center of Law and Business -Advs E.Michaely, E.Tzin
& O.Sitbon, the Israel Union for Environmental Defense and " Emun HaTzibur")
petitioned or applied for a petition to the Supreme Court.
petitioners called for the gas export matter to be brought out of closed
committee rooms and into an open Knesset debate and vote. Their collective
claim: deciding on the matter by government committee constitutes an improper
interpretation of Israel's Petroleum Law. The petitions and adjunct affidavits
also argued that the Tzemach Committee decision-making process contained
irregularities related to procedure, environmental damage and the cost of
Last Thursday, the preliminary hearing at the Supreme Court took
The Supreme Court petition was seen by many as a challenging case.
The petition - in legal terms – is an "equity case" and rests on a claim of a
lack of legal precedent; yet the Supreme Court seldom agrees to hear such cases.
The Supreme Court rarely intervenes or annuls government regulation; and the
three very senior presiding judges are reputed conservatives whose rulings tend
to counter any increased Supreme Court intervention. The petition could have
been dismissed with no further hearing.
And yet the case was not
dismissed last Thursday. Chief Justice Grunis offered the petitioners and
respondents a final hearing, with an extended bench of judges. Since a broad
judicial base provides the legal system stability, should the final ruling prove
controversial or ground-breaking, Chief Justice's Grunis' specification for an
extended bench was dramatic as it signifies a landmark legal precedent could
emerge. Furthermore, Chief Justice Grunis stated that exporting Israel's gas is
a "material issue" with "high importance" that should be considered "on its own
merits." This language encouraged the petitioners and its force may have
disappointed the respondents. This wording sent out a message that the Supreme
Court does not see the petition as an irrelevant socio-economic or professional
squabble; nor would the petitioners' demand for intervention prompt the Supreme
Court to dismiss the issues outright.
On Monday, the State Attorney
formally accepted the offer of the Supreme Court. The final hearing is expected
to take place in the coming weeks. The burden now falls on the State Attorney
who must persuade the Supreme Court that determining the issue of Israel's gas
exports by government committee (rather than Knesset) was legal and in
accordance with Israel's Petroleum Law. The question is: will the Supreme Court
be convinced by the State's interpretation of Israel's Petroleum Law?
affidavit provided to the Supreme Court by Professor Ehud Keinan of the
Technion, President of the Israel Chemical Society, editor of the Israel Journal
of Chemistry, Chairman of the Education Ministry chemistry professionals and
board member of the European Union Chemical Sciences argued that the added value
gained from building and enlarging Israel's chemical industry based on natural
gas would be far more extensive and significantly outweigh taxes proceeds that
received from exporting the gas.
The affidavit provided to the Supreme Court by
Dror Strum, President of the Israeli Institute for Economic Planning and former
Head of the Anti Trust Authority, argued that the Tzemach Committee failed to
fully and satisfactorily consider the public interest, notably the cost of
living, in its deliberations.
It is not yet known how the Supreme Court
sees these professional opinions. If the final hearing favors the petitioners,
the Supreme Court might potentially reference them in support of bringing the
matter to the Knesset.
So, what lies ahead? It is generally expected that
the petition will proceed to the Supreme Court. If the Supreme Court is not
satisfied by the State and rules in favor of the petitioners, the gas exports
issue would then be debated in Knesset.
Though the Supreme Court said
they would deal with the case promptly, if that does not happen, the State could
unilaterally take the debate to Knesset, to get a swift resolution. This option
is feasible, despite the vacation period; over half the Knesset Economics
Committee promised to cut short their recess in order to attend a summer Knesset
debate on the gas.
Of course, in a Knesset open debate and vote, the
result could go either way, with regards to the export quota. Yet, the very fact
of a Knesset debate would be a victory for the petitioners, since it would mean
the fulfillment of a proper and full democratic process.
If the Supreme
Court ultimately favors the petitioners, a precedent could emerge relating to
the circumstances in which the Supreme Court intervenes in government process.
It is possible that a significant new line of reasoning could evolve, in which
the Supreme Court sees itself as safeguard for a Knesset debate when government
procedure trespasses the public interest.
Such an eventuality could benefit
Israeli citizens, by making future government committees more mindful of the
public interest, particularly the cost of living. It could also be a positive
outcome for Israel's Social Protest movement. Clearly, these contemplations are
conjecture. The final ruling and its adjunct reasoning remains to be
In the fullness of time, these developments may serve a valuable
lesson. That is- administrative procedures, in particular decisions that deeply
affect the Israeli public for generations to come, must enjoy full consideration
in the appropriate forum. It would be unfortunate if it were to turn out that
this was not the course that was taken in the instance of Israel’s
Doubtless, the reasoning of the Supreme Court in its final decision
will be closely observed.