A-G: Government has right to decide gas export policy

Group of MKs lead by Yacimovich petitions for Knesset involvement in cabinet decision.

Attorney-General Yehuda Weinstein 370 (R) (photo credit: Ronen Zvulun / Reuters)
Attorney-General Yehuda Weinstein 370 (R)
(photo credit: Ronen Zvulun / Reuters)
Attorney-General Yehuda Weinstein came out swinging on Sunday in a legal response to defend the government’s natural gas export policy in the face of a petition filed by a group of MKs led by opposition leader Shelly Yacimovich before the High Court of Justice.
Yacimovich along with MK Reuven Rivlin (Likud Beytenu), MK Avishay Braverman (Labor) and MK Moshe Gafni (United Torah Judaism) filed the petition on June 25, just one day after the government, demanding that the decision on gas exports be made by the full Knesset, and not by a mere cabinet vote.
Proposed by Prime Minister Binyamin Netanyahu together with Energy and Water Minister Silvan Shalom, Finance Minister Yair Lapid and Bank of Israel Gov. Stanley Fischer, the export policy called for maintaining 540 billion cu. m. of gas within the country’s domestic reserves, thereby restricting exports to 40 percent of the country’s current reserves, rather than the original 53% ceiling suggested.
The approved proposal was a revision of the recommendations of the Zemach Committee, an interministerial committee led by Energy and Water Ministry directorgeneral Shaul Zemach and tasked with advising the government on a suitable export policy.
Even with the upgraded percentages suggested for domestic allocation, environmentalists have been up in arms, arguing that the quantity is insufficient for the country’s energy, transportation and petrochemical industry needs.
The developers of Israel’s eastern Mediterranean reservoirs, on the other hand, have argued that the swift implementation of a stable export policy is crucial to both the harvesting of the currently found gas as well as for encouraging future exploration.
Although gas from the 282-b. cu.m. Tamar basin is already flowing, working on developing the adjacent 535- b. cu.m. Leviathan reservoir cannot begin without first solidifying an export policy, the companies have explained.
Arguing that it is the public’s right that a decision on the fate of the country’s natural gas reserves be reached within the confines of the Knesset, however, Yacimovich led the unusual group of allies in opposing the decision before the High Court.
In legal jargon, the petitioners also put forth the argument that the issue is a fundamental one of “first impression,” meaning it has never been dealt with before and, on that basis also, must be addressed and regulated by the Knesset as the preeminent branch of government in Israel, and the one which most directly represents the state’s citizens.
At the same time, Knesset Legal Adviser Eyal Yinon contradicted Weinstein, and taking the side of the petitioners that the new policy must be decided by the full Knesset, even if there are formalistic arguments that could be made to defend a mere government decision on the issue.
The environmental advocacy group Adam Teva V’Din (Israel Union for Environmental Defense), which also recently filed a petition against the government’s decision to pass the export policy in its current form, praised the publication of Knesset legal adviser’s opinion.
Dr. Arie Wenger, head of the air and energy department at Adam Teva V’Din warned that the decision could force the State of Israel, in 25 years from now, to pay more than NIS 13 billion a year on fossil fuels that are not gas.
“The stance of the Knesset legal adviser reinforces our position that the rules of proper administration stipulate that a decision of such great magnitude, like gas export, will only be taken after an in-depth discussion in the Knesset, in a way that enables all stakeholders to present their stance and partake in a discussion that is transparent, and not dark,” said Amit Bracha, executive director of Adam Teva V’Din.
But Weinstein fought hard to defend the government’s authority to decide the issue, noting that Section 33 of the Oil Law of 1952 already empowered the Energy and Water Ministry and the government to make all state decisions regarding which percentages of resources would be exported, and which kept for domestic use.
The state added that while there is certainly a trend of interpreting and encouraging the Knesset to pass laws dealing with major new issues that arise, such as the major spike in the state’s gas resources, this is only a general trend, and is not legally binding.
Weinstein went even further, saying that if the court intervened to stop the government from acting and to force a Knesset law, it would be violating the separation of powers between branches of government by essentially ordering the legislative branch to amend or add to its 1952 law.
Also, the attorney-general contended, the government would be failing its duty to act swiftly to harvest and preserve the state’s energy rights in the face of potential challenges by neighbors like Lebanon if it did not move forward now. He said that some of the petitioners were holding up attempted legislation on the issue in the Knesset, which left the government no other choice.