How to Make Capacity Building Work

Marcia Gelpe

Professor, Netanya Academic College, School of Law, Netanya, Israel, and William Mitchell College of Law, St. Paul, Minnesota (on leave 2000-2002). Professor Gelpe thanks Mary Maloney Huss, partner in Wolf, Block, Schorr & Solis-Cohen LLP, for helpful comments on a draft of this Dialogue.

Some of the material presented in this Dialogue is taken from an article to be published in Hebrew in Israel, Marcia Gelpe, Why the American Legal Scheme for Cleaning Contaminated Land Will Not Work in Israel, 2 MAOZNEI MISHPAT [SCALES OF JUSTICE] (forthcoming 2001). That article explains the underlying assumptions of U.S. cleanup programs and discusses why, given the different legal, political, and social structure in Israel, the same cleanup program will not work in Israel.

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The Pitfalls of Cross-Cultural Legal Capacity Building

American legal and technical experts regularly travel to other countries to participate in capacity building activities. Supported by governmental and private organizations, these experts invest considerable time and effort trying to assist other countries, many of them emerging democracies, to develop and strengthen their legal systems. In particular, this has become common in environmental law, an area in which American law has a relatively long and successful track record in fostering pollution reduction and resource preservation. American assistance can help another "host" country develop its own regime of environmental law with less effort and greater success than if the host country simply began from scratch.¹

Yet, export of American legal expertise is also subject to pitfalls that American experts do not readily recognize. Every legal regime is a product of the political, social, economic, and historical context in which it operates. Each addition to the law also reflects the preexisting legal arrangements. It is difficult for Americans, operating within the American context, to identify the peculiar characteristics of that context or how it has influenced American environmental law. It is also difficult for people who have spent all their professional lives in the United States to see what features of the American political system are peculiarly American, what traits of the American society are not shared by other modern democracies, the ways in which the American economic system is unique to America, the degree to which special features of American history have influenced American law, and how accepted legal doctrines that they view as axiomatic might be peculiar to the United States. American lawyers are so accustomed to the features of the American landscape that they do not easily see how they are absorbed into or reflected in the American laws, nor do they see the unstated assumptions in the American legal system that may be based on these various factors.

On the other hand, when Americans bring legal recommendations to a country with different political, social, economic, and legal arrangements, the Americans are likely to be unfamiliar with those arrangements. Even if they have some knowledge of them, the ways these arrangements have influenced the legal regime of the foreign country may not be transparent to the American lawyer. Similarly, the American legal expert may not know the history of the host country and the ways in which that history has been incorporated into the host country's law.²

To the extent that American lawyers miss all of these factors, they are likely to make assumptions about the host country or its legal regimes that are inaccurate. They may address problems that do not exist, miss problems that are crucial, recommend solutions that are designed for the peculiar characteristics of the American situation and ill-suited to foreign soil, or simply speak in ways that are incomprehensible to the experts in the host country. Even where the American experience can be beneficial to the host country, the American expert may not understand how American law needs to be altered to work in a different environment.

So what is to be done? One response is to give up on the endeavor, however, this would be ill-advised. Americans have great expertise, particularly in environmental law and the closely associated area of administrative law, from which many other countries may benefit. A country lacking the resources for the type of deep thinking on environmental issues that has occurred in the United States can obtain a great advantage by getting the end product of that thinking, without having to duplicate the process that produced it. Also, Americans have significant experience in many legal areas that is missing in regimes that have come only more recently to address their environmental problems.

Another response would be equally ill-advised. That would be to have Americans tell their tales abroad and then leave it to the local experts to figure out what lessons are useful to them and how the American experience can be adapted to fit the host country. The host country's experts, [31 ELR 10858] after all, are likely to be in the same situation as the Americans, only in reverse. They will not understand the degree to which the American laws are a product of unique features of the American landscape, and they may not be able to identify the features of their own system that are inextricably intertwined with their own national experience. Unfamiliar with the American perspective and the ways it has been incorporated into the American system, they might try to take features of the American law that cannot be effectively divorced from the landscape that produced that law. Alternatively, they might see that the American law will not work in the host's context, and, unable to distinguish the features that are universal from those that are related to a particular culture, may nod their heads and then ignore what they have heard.

This Dialogue suggests a more sophisticated response to the problem of presenting the American experience in a way that will be useful in improving the legal regimes of other countries. It recommends specific steps American experts contemplating a foreign visit should take to make their visits most productive. The recommendations presented here are based on my own experience as an American lawyer who has lived abroad for the past 10 years and who has worked extensively in two different legal regimes. I was born in the United States and completed all my studies there. After many years working as an environmental professional in the United States, I moved to Israel in 1991. I have taught environmental law in both countries and also worked with environmental agencies in both places. I speak and read Hebrew, the language of Israel. This experience has provided me with a sense of the political, social, and economic arrangements in both countries, as well as a knowledge of the environmental laws of both on a practical and theoretical level. In my work during the past 10 years, I have tried to help present American law in a foreign country and been a witness to and an active participant in the efforts of others to do the same. In this Dialogue, I try to share what I have learned from these efforts.

Illustration of the Problem: American Efforts at Capacity Building on the Topic of Contaminated Land Cleanup in Israel

Recently, American experts came to Israel to help Israelis develop systems for cleaning contaminated lands. The Americans came enthusiastically, with enormous genuine goodwill and with extensive experience and expertise. The Israelis who came to hear them were very interested. Israelis, usually anxious to listen to American visitors, admire the long, stable American history and its sophisticated, developed legal system. The Israelis knew almost nothing about cleaning contaminated land; no Israeli law specifically addresses the issue and there is little experience with contaminated land cleanup. In general, the Israelis who attended the sessions really wanted to learn. Yet the result of the effort was only to raise the profile of the issue of treatment of contaminated land in Israel. Beyond that, the American efforts did not contribute substantially to formulating a framework for addressing the problem.

This is especially interesting since it should be relatively easy to transfer information between the United States and Israel. Israel is not usually regarded as a developing country, it has a developed legal system and vigorous democratic institutions.³ Its legal system, like that of the United States, was influenced by its history under British rule. Its Supreme Court regularly cites American precedents and American legal literature.⁴ Most of the professionals in the country speak and understand English as a second language and travel abroad frequently to international conferences. In the specific area of environmental law, Israel has a Ministry of Environment and a set of environmental statutes. Yet for all this, there were severe problems of meaningful communication.

The attempted capacity building that I describe occurred at two conferences that were held in Tel Aviv in July 1999⁵ and in Haifa in January 2000.⁶ Most participants at the conferences were non-lawyers, but it was the failure to appreciate the differences in legal structures and the societal forces behind those structures that lead to the failure of understanding. At both conferences, experts in brownfield remediation from the United States exhorted Israelis to learn from the U.S. experience in using private initiatives to arrange and carry out cleanup of contaminated land. The American experts argued that since brownfields had to be cleaned up before they could be used or redeveloped, it was better for the cleanup to be conducted under private initiative than by the government. They recommended that schemes for private remediation developed in the United States be imported into Israel and adapted to the local conditions.

In more detail, the general line of argument was this:

1. It is best to develop new industrial and commercial facilities on brownfields. The alternative is to build new facilities on uncontaminated greenfields, requiring extension of infrastructure into the countryside and extending the area of land contamination.

2. Before brownfields can be recycled for development of new or expanded facilities, they must be cleaned.

3. Cleanup can be conducted by either public authorities or by private parties. It is best for private parties to do the cleanup. Public authorities have very limited funds to spend on cleaning contaminated land and will spend those funds on the sites presenting the greatest danger to the public health, [31 ELR 10859] welfare, and environment.⁷ These may not be the sites the private developer wants to use.

4. Private parties can conduct a remediation in a way that is environmentally and economically responsible and politically acceptable. They can work with environmental regulators to develop and execute acceptable cleanup plans at a reasonable cost. They can sufficiently open the process to public participation to satisfy local political forces.

This analysis omits three basic questions: (1) Why clean the contaminated land at all? (2) Why be concerned only with brownfields and not with contaminated land that is remaining in its present use? (3) Why should someone acquiring land worry about existing pollution on the land? Americans discussing ways to arrange cleanup of contaminated lands never addressed the issue of why cleanup is necessary. Furthermore, they ignored the issue of contaminated land that is in use. In other words, they assumed that the need to clean the land is clear. They further assumed that it is clear who will clean the land presently in use, and that anyone acquiring land to develop it or improve on its existing use would want to clean it first. The only issues left open were how best to arrange the cleanup of land not being used or the use of which is being changed.

These unspoken assumptions made the American experience largely unintelligible to Israelis. Israelis trying to learn from the American experience could not do so until they probed these unasked questions that lie at the basis of all American discussion of brownfields. The conferences, however, hardly addressed these issues.

For Americans, the answers were so clear that they did not see a need to discuss the matter. Israelis, on the other hand, tended not even to ask these questions. Because the assumptions that underlay the American analysis were unstated, the Israelis could not even see that they were there. And if the Israelis asked the questions, they were unintelligible to the Americans, who would in response jump to a more sophisticated level of analysis. The Americans, it seemed to me, had difficulty imagining a framework that did not require cleanup of contaminated land, that did not force cleanup by a polluter actively using the land, and that did not threaten a person acquiring contaminated land with extensive liability. The fact that many Israelis simply do not understand why it is essential to clean contaminated land would have astounded them.

Furthermore, the Americans did not realize that other features of their discussion were based on assumptions that do not apply in the Israeli context. Of course, they recognized the need for all of their suggestions to be adapted to the local context, and emphasized this over and over. But in order to facilitate such adaptation, it would have been enormously helpful for the Americans to articulate the assumptions on which they were basing their discussion. For many matters, such articulation was missing.

What follows is a list of some of the American assumptions, the social, political, economic, and legal arrangements and the history on which they are based, and a discussion of why they do not apply in Israel. This illustrates the source of difficulty of communication.

Assumption 1: Contaminated Land Is Dangerous to the Environment

United States

Most Americans, not only professionals in the land development business, understand that contaminated land leads to contaminated groundwater and is dangerous to those who live on or near the land or are otherwise in contact with it. Love Canal is part of the collective American memory and, at least since the movie A Civil Action, so is Woburn.⁸ Even if people are a bit vague on just how contaminated land endangers the public, they understand that it does.

Israel

Environmental awareness in Israel is generally much lower than in the United States, and the importance of environmental protection has not entered the common consciousness on anything close to the same level. Jerusalem, the capital of Israel, just began treating its sewage, and even now, treats only part of it. Jerusalem still has no modern treatment for its solid waste, while the largest city, Tel Aviv, has only begun using a modern landfill in the past two years. Contaminated land problems are not even on the map for most Israelis, unless their water wells are closed. An experience I had after the Tel Aviv conference is illustrative of the problem: The head of an exporter's association asked me what all the fuss was about. If the material was just in the soil, it wasn't bothering anyone, so why bother to clean it?⁹

Assumption 2: The Law Requires Cleanup of Contaminated Land

United States

This assumption is based on the American legal framework. The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),¹⁰ the Resource Conservation and Recovery Act (RCRA),¹¹ and comparable laws in many states¹² create a legal scheme mandating cleanup of contaminated land. These laws, as interpreted by courts, have imposed joint, several, and nearly absolute liability for the costs of cleanup on all parties with almost any association with the contaminated property.¹³ The courts have interpreted the statutory provisions designating the classes of people who are subject to liability for cleanup costs very broadly.¹⁴ In addition, while the statutes do not expressly [31 ELR 10860] impose liability for contamination caused before their enactment, such "retroactive" liability is recognized by the courts.¹⁵ Further, state and federal agencies work actively to implement these laws, and courts are ready to enforce legal liability under them.

Israel

No law applies specifically to contaminated land. Several laws might be used to address contaminated land problems, but unsettled legal issues surround many of them. For example, the Israeli Water Law requires any person "to refrain from any activity that pollutes water or is liable to cause water pollution, directly or indirectly, immediately or after the passage of time; and it does not matter if the water source was polluted before the action or not."¹⁶ The statute authorizes the Water Commissioner to issue cleanup orders when the Water Commissioner determines that "water pollution has been caused."¹⁷ Does this mean that cleanup orders are available only after the fact? This is too late, since it is best to clean land before the contamination in the soil reaches the groundwater.

The law also allows courts to impose a criminal sanction on anyone who violates the requirement "to refrain from any activity that … is liable to cause water pollution."¹⁸ Presumably, this makes it a crime to cause contamination of land that "is liable" to then cause water pollution. But is this the proper interpretation of the statute, given the limitation on the Water Commissioner's authority? What sense does it make to limit the Water Commissioner's authority to issue orders to clean contaminated land in cases where causing the contamination is criminal? In short, the design of the statute is problematic when applied to contaminated lands. This stems from the fact that the statute was not originally designed with the matter of contaminated land in mind.

Other statutes present legal possibilities to deal with contaminated land problems, but also involve problems.¹⁹ These legal uncertainties in Israeli law could be resolved in favor of interpretations encouraging land cleanup if the agencies charged with implementing the laws adopted such interpretations, and if the courts accepted their position. However, such a resolution is unlikely. Authority for administering the laws is scattered among numerous ministries, not all of which see environmental protection as their primary goal.²⁰ Sadly, experience has shown that various government authorities are more likely to work against each other to advance their special interests than to cooperate in coordinated action to protect the environment.²¹ Furthermore, in this battle among the various authorities, the Ministry of Environment cannot balance the political strength of other ministries. The Ministry of Environment is so weak that during the period from mid-1996 to mid-1999, it did not even have its own minister, but shared a minister with the Ministry of Agriculture. In the formation of the (Ehud) Barak government in 1999, no one wanted the environment portfolio because it was perceived as so low in the political pecking order.

As for the courts, Israelis would have no reason to expect their courts to be aggressive in advancing environmental protection goals. Israeli judges suffer from the same lack of understanding of environmental issues as does the general public.²² Further, Israeli judges could not be influenced by a strong legislative policy in favor of cleaning contaminated property because there is no clear policy. Moreover, the current statutes are not designed to address this issue specifically, the way CERCLA and RCRA are designed for the issue.

Assumption 3: The Current Owners and Operators of Contaminated Property Are Liable for Cleanup Costs

United States

The federal and state statutes discussed above place legal liability for cleanup costs on current owners and operators of contaminated land, and on others with some past connection with the land or the waste on it. Therefore, Americans tend to go straight to the question of how current owners or operators can conduct an adequate cleanup, or to the question of how to insulate from liability someone acquiring the land.

Israel

As stated above, there is no law specifically on the matter of cleaning contaminated land. Therefore, it is not clear that the present owner or operator has any liability. In addition, the issue of whether "retroactive liability" can be imposed on the present owner is still unsettled under Israeli law. "Retroactive liability," in this sense, means liability for actions not explicitly prohibited at the time they were taken. It is unclear whether any of the Israeli laws can be interpreted to impose such retroactive liability for the costs of cleaning contamination.²³ Moreover, the constitutionality of retroactive [31 ELR 10861] liability is still in doubt. Israel has quite recent constitutional provisions protecting property²⁴ and the freedom of occupation²⁵ that may be interpreted to protect businesses and individuals associated with them from such retroactive liability.²⁶ Americans, familiar with the accepted imposition of retroactive liability under CERCLA,²⁷ tend to forget that this may be problematic in another legal system.

Assumption 4: A Brownfield Is an Abandoned or Underutilized Property, Not a Property in Fully Productive Current Use

United States

The term "brownfields" means "abandoned, idled, or under-used industrial and commercial facilities where expansion or redevelopment is complicated by real or perceived environmental contamination."²⁸ In the United States, most land that is being well-used will be cleaned, unless the owner lacks the financial resources. In that case, the land can be sold and cleaned. The problems discussed under the rubric of "brownfields" arise where land is underutilized so that it cannot support the costs of its cleanup, or where the land is abandoned.

Israel

When much of the discussion concentrates on inactive or underutilized sites, Israelis are stumped. They are not quite sure why inactive sites are so important. Israel is a very crowded country and has a heavily urbanized population.²⁹ Land use in Israel is very intensive, so Israelis just do not envision the presence of many inactive sites. When discussion focuses on abandoned sites, Israelis do not think they have a big problem. In order to communicate meaningfully with Israelis, its is essential to address explicitly sites currently in use.

Assumption 5: A Person Buying and Cleaning Contaminated Land Needs Legal Protection From Legal Liability for the Costs of Cleaning Past Contamination

United States

The American law imposes liability on almost anyone who acquires contaminated property. In order to escape liability, a person who acquires contaminated land must show that upon acquisition there was no reason to know that the property was contaminated.³⁰ This means the property must be tested for contamination. If the property is contaminated, a proper test should reveal the contamination, thereby notifying the purchaser of the contamination and making the purchaser jointly and severally liable. If the other liable parties are judgment-proof, or if they cannot be found, the purchaser could get stuck with the full cost of the cleanup. As a result, everyone is hesitant to acquire any interest in contaminated property until the contamination is cleaned.

Israel

Just as the liability of an existing owner for contamination is unclear under Israeli law, so is the liability of someone acquiring the property. It is not evident why anyone acquiring a contaminated site should worry so much about liability.

A very recent event, however, does indicate that a person acquiring contaminated land may have difficulty developing the property. The city of Tel Aviv has in the past few months delayed decisions on requests for building permits on two sites, pending further investigation of soil contamination on those sites.³¹ It is not yet clear whether building permits will be denied pending cleanup, or if other local jurisdictions will follow suit. It may be that, in the future, such delays or denials will cause those acquiring land in order to build on it to be cautious. In any case, these permit denials occurred long after the conferences, and while they might alert property buyers today to a potential problem, the need for concern was not as evident at the time of the conferences.

Assumption 6: Land Development Mainly Involves Private Parties

United States

This assumption is based on the usual economic arrangements in the United States. Most land is privately owned and most businesses are privately owned and operated. Therefore, it makes sense for Americans to discuss how to arrange private initiatives for cleaning contaminated land. Of course, much contaminated land in the United States is government owned, but this is not usually the inner-city land and was not the focus of the discussion at the conferences.

[31 ELR 10862]

Israel

The Israel Lands Authority owns over 90% of the land in Israel.³² Not surprisingly, therefore, much of the contaminated land is also owned by the Israel Lands Authority.³³ The Israel Lands Authority is appointed by the government and works under policies set by the Israel Lands Council, also appointed by the government.³⁴ The statutes set almost no substantive limits on, or goals for, the Israel Lands Authority, a situation that has drawn criticism from the Supreme Court³⁵ and legal literature.³⁶ For purposes of the present analysis, this means that the Israel Lands Authority lacks any specific statutory directive to clean the extensive contaminated lands under its control.

Similarly, many of the facilities that occupy the contaminated land are government facilities or are owned and operated by government companies organized under the Government Companies Law.³⁷ The government in Israel has an extensive involvement in the economy of the country; even private companies may have been government industries in the past. All of this derives from the socialist background of the country.³⁸ For the same reasons, it is much more likely that the party wanting to continue using or to redevelop contaminated land is going to be the government itself or a business entity with a heavy government involvement.

As a result of these arrangements, the government is in many cases involved on both sides of cleanups: it is responsible under various laws for protecting public health and it is the party that must conduct and pay for the cleanup. If the government as a whole were seriously interested in cleaning contaminated land, this situation would be ideal. There would be no struggle between the government and a separate, private entity. In the real world of Israeli politics, however, the situation is otherwise. The main interest of the government has not been in cleaning land, but rather in developing land and in saving money.

The interest in land development is illustrated by a case involving not land contamination, but water pollution. The Ministry of Housing sponsored construction of a new residential area in the city of Sefad, high in the hills of Galilee, at the same time that the Ministry of Environment was trying to deal with water pollution from inadequate sewage treatment in the city. In fact, the Housing Ministry was marketing the new units, even though they were not tied to any sewage treatment facility.³⁹ As for the government's interest in saving money, it has been alleged that the Ministry of the Treasury takes the lead role in deciding what shall be done with contaminated land, despite the lack of any specific statutory authority to perform this function.⁴⁰

Assumption 7: Regulatory Agencies Must Be Satisfied That Any Cleanup Is Adequate

United States

Americans design their voluntary land cleanup programs in a way that will satisfy the regulatory authorities. The structure of the programs is such that if the regulatory authorities are not satisfied with the cleanup design and execution, extensive liability may be imposed on all those associated with the land and its cleanup. An important objective of voluntary, private cleanup is to free those associated with the land from liability for cleanup costs that might be incurred by the government. This objective is obtained only if the property is cleaned and the regulators are satisfied that the cleanup is adequate. The private parties connected with the land initiate contact with the authorities in order to obtain the authorities' approval of the cleanup plans and of the later execution of those plans, thereby eliminating the need for regulating authorities to initiate action on the site.

Israel

Developers in Israel rarely are under the same pressure to convince regulators that the land they plan to develop is clean. Theoretically, a legal framework is in place to allow consideration of the condition of the land, among other factors, before land development. Any land development needs a permit from the local authority.⁴¹

Environmental considerations come into play in two ways. For a very major project, an environmental impact statement (EIS) must be prepared and considered before the project is approved.⁴² Thismethod for considering the environmental impacts of development generally, or the need to clean the land specifically, is not very meaningful for most projects because the requirement to prepare such a statement is limited to only the largest of undertakings. For most projects, environmental impacts may be considered by the local authorities deciding whether to issue the permit, although there is no requirement for an in-depth study of those impacts before the permit decision is made. In urban areas, the local council, comparable to a city council in the United States, serves as the planning board. In most cases, long-term environmental protection is not the primary interest of these bodies.

This is seen in the events that led to a recent case in the city of Nahariya. The city wanted to develop a very large children's park. In this case, it needed approval from the regional planning board. The city presented the request for approval, which was granted. Later it was revealed that there were substantial deposits of asbestos waste from a neighboring factory on the site. There were even allegations that the city had prior information that the site was contaminated but did not include information on soil borings that showed the [31 ELR 10863] asbestos contamination in its application for plan approval.⁴³ In any case, even after the contamination was revealed, the city was anxious to go ahead with the project, without preparation of the EIS. This kind of municipal attitude toward the environment is unfortunately all too common.⁴⁴ While the recent cases of building permit delays in Tel Aviv may herald a change of approach, it is far too early to be sure that they do.

Therefore, the situation in Israel varies from that in the United States in three crucial respects. First, in most cases in Israel, the developers are under no specific obligation to provide information on the state of soil at the site. Second, it is not in their self-interest to provide the information. Third, the planning authorities are not very concerned about land contamination. The situation in Israel is not only very different from that in the United States; it is almost unimaginable to a visiting American expert.⁴⁵

Assumption 8: The Public in the Area of the Contaminated Land Must Be Satisfied That Any Cleanup Is Adequate

United States

Those cleaning contaminated land in the United States are wary of public reaction to the cleanup. Several of the presentations at the conferences addressed how to build structures to workwith the public. In many places in the United States, through large national "public interest" organizations or through state or community-based groups, the public actively participates in the decisionmaking process involved in cleaning contaminated lands. Some of these "public interest" organizations are well-financed and widely recognized. The public represented by all of these groups has extensive rights to information about cleanup plans, the right to a voice in designing such plans, and the right to assure that the government and private parties address those concerns. Aware of this triumvirate of legal rights, all those involved in American land development know from the beginning that they must involve the affected public and respond to its concerns.

The right to obtain information regarding contaminated land and its cleanup is based on CERCLA,⁴⁶ the Freedom of Information Act,⁴⁷ the Administrative Procedure Act (APA),⁴⁸ and similar state statutes, all of which are a familiar part of the legal landscape. Armed with information, members of the public can voice their concerns about any cleanup and ensure that these concerns are considered.

In formulating a plan for cleaning contaminated land, the government must allow participation of interested persons.⁴⁹ The term "interested persons" is generally broadly defined in American administrative law and would allow for comment by just about anyone.⁵⁰ Public participation generally includes the right to a notice of what the government proposes to do and the justification for the proposal, the right to comment on that proposal, and the right to have the comments seriously considered.⁵¹ The public has similar rights of participation as to formulation of rules on the subject of cleanup of contaminated land.⁵² If there has been litigation over cleanup of a particular site, the public also has a right to participate in determining the terms of any settlement.⁵³ The U.S. Attorney General must file any written public comments with the court and must consider the comments in deciding whether to continue to support a proposed settlement. Finally, if all this is not enough, citizens may sue those who do not fulfill CERCLA's cleanup requirements,⁵⁴ and they may sue the Administrator of the U.S. Environmental Protection Agency for failing to carry out adequate cleanups.⁵⁵ Extensive public participation rights are also found under RCRA and under state laws.

Israel

The environmental laws that might be applied to land cleanup provide no explicit rights to public participation. Therefore, any rights the public might have derive from general laws, and these rights are not well defined.

The right of the Israeli public to obtain information is now in a state of legal uncertainty. Prior to the recent enactment of a new Freedom of Information Law,⁵⁶ the case law on the matter was inconsistent. The new statute provides broad rights, on the one hand, but also includes ill-defined and potentially [31 ELR 10864] broad exceptions to those rights.⁵⁷ The courts may well interpret these exceptions narrowly, but until they do, the public can expect resistance to requests for information. This resistance derives from not only the uncertainty in the law, but also the traditional paternalistic approach of Israeli agencies to the public. I recall attending one conference on the Freedom of Information Law when it was still a proposal and hearing a representative of the Ministry of Health explain why data on the quality of the country's drinking water could not be released to the public. Release of that information to the public, she explained, might cause a panic. It is almost inconceivable to think of an official spokesman of an American agency making a similar statement in a public forum. Nor is this an isolated example. In the spring of 2000, a study was being done on groundwater pollution in the densely populated center of the country, in an area not far from Tel Aviv. The former acting Water Commissioner refused to divulge the findings of the study because it was only a preliminary investigation.⁵⁸ Even if Israelis can get information, it is likely to be after protracted efforts. Those efforts alone can wear outinterested public representatives.

Once information is obtained, the issue of the right to be heard arises. Israeli law provides only very limited rights for the public to be heard. There is, for example, no obligation to publish drafts of proposed rules and no right of public participation in rulemakings, such as is provided in the APA. In fact, drafts of proposed rules, although they are circulated among affected government ministries,⁵⁹ are not regularly provided to the public.

Certain members of the public do have limited rights to participate in the planning process. After a plan is presented for approval, it must be made available to the public.⁶⁰ At this stage, affected individuals and certain public interest groups have the right to submit statements of opposition, which must be considered by the planning board before approval of the plan. Further, if an EIS is prepared on a project, that must also be presented to the public for this comment process.⁶¹ This is the law that was recently used by a local environmental group to force the planning authorities to consider land contamination in deciding whether to allow the city of Nahariya to develop a children's park on land heavily contaminated with asbestos.⁶²

In theory, the public has another legal mechanism to make its voice heard, but in practice the utility of this mechanism is limited. The public has extensive rights to obtain judicial review of agencies' decisions about cleaning contaminated land based on the public's more general right to obtain judicial review of all administrative decisions. Israeli law is quite flexible on the matter of standing. The courts have discretion to recognize the standing of public petitioners, even if they do not suffer direct injury.⁶³ On the other hand, the courts also have discretion not to recognize the standing of public petitioners in such cases. Judicial review is available both for refusal of authorities to require others to clean land privately held, and for failure of the public agencies to clean land that they own.⁶⁴ Of course, litigation, unlike participation in administrative processes, requires legal representation, which is an expensive barrier for many. Furthermore, the Israeli judiciary is not nearly as sensitive to or supportive of environmental values as are courts in the United States. While the Israeli Supreme Court has been aggressive in limiting governmentaction that affects what it defines as human rights, it has not been nearly as enthusiastic about protecting environmental interests. Therefore, the avenue of pursuing litigation to force consideration of public concerns is not as sure for the Israeli public as it is for American environmental groups. In summation, for decisions not covered by the planning process, the public must depend mainly on the administrative authorities' voluntary willingness to listen.

Developers know all this. They know that the public will have trouble obtaining information, they know that the public has limited rights to have a say, and they know that the frequency of judicial reversal of decisions on environmental grounds is low. They know also that there are substantial social barriers to the public's making its voice heard.

The public has few organized groups with sufficient funding to represent them. Israeli society presents a number of barriers to organization and operation of such groups. One is that Israeli bureaucracy has long operated under a paternalistic attitude.⁶⁵ It is the task of the authorities to take care of the public; the public, in turn, leaves the work of protecting its interests to the authorities. Another factor is that a high percentage of the population is immigrants who are just trying to cope with a new language and get their lives in order in a new country. These immigrants are not likely to engage in volunteer work. In addition, Israel faces burning issues of war and peace, life and death, on a daily basis. This also leads to more limited activism on environmental issues. It is hard to convince people that environmental issues are sufficiently crucial to warrant contributions of their limited time when much more pressing issues are the stuff of the hourly news broadcasts to which Israelis listen obsessively. It is notable that despite these barriers, environmental activism is growing. Still, the Israeli groups lack the kind of support and funding typical of the major environmental organizations in the United States.

Finally, suspicion of environmental groups runs deep in many sectors of the regulated community.⁶⁶ Responsible parties might not be willing to engage in negotiations over cleanup with a ministry or a local authority if environmental groups were invited to participate in those negotiations. Since the law does not force them to negotiate with the environmental groups, they will not do so voluntarily.

[31 ELR 10865]

For all of these reasons, those connected with contaminated land have less need to feel concern about public reaction than do their counterparts in theUnited States. Consequently, they have even less incentive to invite public participation from the beginning. It may indeed be important for them to involve the public, but the reasons would be different in Israel than they are in the United States, and are not at all apparent without discussion. Therefore, when Americans launch into suggestions on how to structure public involvement, many Israelis wonder why they are bothering with the topic at all.

Solutions

This part suggests several measures to avoid the type of problems illustrated above. There may be other ameliorating measures; it is hoped that this Dialogue will spark discussion of them.

The Visiting Expert Should Try to Identify Those Characteristics of the American System That Influence the Legal Regime to Be Presented

The first measure is for the visiting expert to be aware of the problem presented and to think hard about how to address it. This means that a trip to another country must be treated as more than a pleasant jaunt where the expert invests minimal effort and talks about already familiar material. It is essential to go beyond that.

The visiting expert must try to identify those assumptions that underlie the American legal provisions to be presented. This is not easy because, as stated above, outside of a comparative framework, it is difficult to identify the peculiar characteristics of your own system. The effort involves asking at every turn: "Why is the law designed this way? How did it get to be this way?" This sounds, of course, like law school, and shows that, sometimes, law school matters.

There is no simple way to escape the need for careful examination of the underlying assumptions. It is not enough to say to the hosts: "I know this approach is based on the characteristics of the American legal system and of American society, and you will have to adapt it to your own conditions." This statement is not helpful. It assumes that the hosts can figure out what characteristics of the American legal system and of American society have influenced the legal concepts being presented. They cannot. The hosts may be not only ignorant of, but even misinformed as to the American system and social structure. Many residents of foreign countries have substantial misunderstandings of what life is like in the United States. I have known many Israelis, for example, who have traveled to New York City and generalize from that experience to the characteristics of American life. Americans would find quite odd the notion that New York City is representative of American society. In other ways, too, America is opaque to those in other countries. I recall being asked many questions at the time of the Senate hearings on the then-future U.S. Supreme Court Justice Clarence Thomas. Israelis could not figure out what all the fuss was about. The degree of importance that Americans assign to issues of race and gender, and their prominence in the American political psyche, were not apparent to Israelis.

Once the visiting expert has some idea what features of the law depend on peculiar features of the American background, it should be possible to have better discussions with advisors in the host country on whether these features will be useful in the host context.

The Visiting Expert Should Learn About the Host Country

No lawyer should go into a courtroom around the corner unprepared; neither should a lawyer go into any office or meeting hall that is far away unprepared. The visiting experts should read and learn about the host country. This should be easy. The Internet makes available a wealth of material, in addition to that found in more traditional sources. Information may also be obtained from the hosting institution. On this source, there may be need for caution. If there is a substantial political split in the hosting country, the visitor will need to consider whether the information received is complete.

The visitor cannot, of course, use the information learned in a short time as a basis for deciding what features of the American legal scheme are appropriate for another country. The information obtained in the background reading is useful instead in facilitating the discussions with local experts in preparation for the presentation. That is the next step.

The Visiting Expert Should Have Preparatory, In-Depth Discussions With Lawyers in the Host Country

The visiting expert should contact lawyers in the host country well ahead of time to discuss the planned presentation. The visiting expert should state specifically the concern about whether the advice will be seen as comprehensible, relevant, and useful in the host country. It is best to go over every point in the planned presentation and, for each, ask: "What do you understand this to mean? Is the matter being addressed a problem in your country? Will this help in your country?" In other words, the visiting expert should actively elicit response. Otherwise, the host may be too polite or too wary of revealing ignorance to provide useful feedback. I have sat through presentations where Israelis who speak English did not ask questions or comment on a presentation because they were unsure they understood just what was said and did not want to reveal their ignorance, or where the Israelis were unsure of whether they could make complex questions clear in English. Therefore, the visiting expert might need to dig to get an honest and complete reaction.

It is important in these discussions to be especially careful in examining the matters identified as linked to the American context. On these matters, there is the highest likelihood that the hosts will not understand the American approach or that the American approach will be irrelevant in the host's context.

It is best to talk to a person in the host country who knows the legal schemes and societies of both places and whose specialty is environmental law. Sometimes it is possible to find an American who has been residing and working abroad for an extensive period of time, or a foreign lawyer who has studied or worked in the United States. That makes the entire process easier and avoids language problems. To find such an individual, as a first step, the host institution should be consulted. It is important to state specifically the [31 ELR 10866] characteristics desired in the contact person. The Internet may also be helpful in identifying an appropriate person.

An alternative is to try to assemble a panel of lawyers in the host country who can help with preparatory discussion. One member of the panel can have experience in both countries, and another can be an environmental lawyer. This sort of contact need not be face to face, but it should precede the planned presentation by a long enough period to allow the traveling expert to adjust the presentation in light of what is learned in these preparatory discussions. The expertshould consider whether using e-mail or telephone is best, however, language problems can be a barrier in both modes of communication. E-mail has the advantage of overcoming time differences where the distance is great, but it requires correspondents who share the ability to write a common language. Sometimes, no modern communication technique will work, and someone has to travel, in one direction or the other, so that the preparatory discussions can be conducted face to face.

The Visiting Expert Should Work to Foster Understanding of Language

The main issue raised in this Dialogue is not language problems; but language plays a large roll in cross-border legal capacity building, so it is addressed briefly here. Fortunately, Americans speak a language that is understood by many lawyers in many countries. That often helps to get over the initial problem of language, although, there are also more subtle problems.

Speaking slowly. I always tell Americans speaking to Israelis to speak very slowly; much, much more slowly than they would to an American audience. At least some people in the audience are translating to themselves as they listen. This effort takes time. For the same reason, it is advisable for the speaker to stop periodically to let the audience absorb what has been said.

Using visual aids. Many people absorb written English better than they understand spoken English. Visual aids can also help present ideas in a non-language format. It is essential to check that any equipment you bring for presenting the visual aids will work in the host country. Most countries use different electricity and different television formats. A U.S. video will not run in another country unless equipment specifically adapted to the U.S. format is used.

Avoid idioms and legal jargon. The traveling expert must eliminate all idioms and all legal jargon, which can be difficult. We tend not to know when we are speaking idiomatically. As for legal jargon, the audience will not understand. For example, both American law and Israeli law recognize the concept of obiter dictum. Americans usually refer to something in a decision being, "just dictum." That phrase is doubly misunderstood by Israelis. First, Israelis use the term "obiter" for statements not essential to the holding of a case. Unless they have worked with American law, they do not understand the term "dictum." Second, Israelis do not assume that dictum is not binding. Israeli Supreme Court law contains a great deal of dictum that is usually treated as binding by both judges and lawyers.⁶⁷

The Funding Institution Must Provide Funding for Preparatory Work

All of these solutions require time and money. The institution funding the capacity building activity must also be willing to fund the time for the lawyers who will be involved in these preparations. The visiting expert may require compensation, or extra compensation, to devote the necessary time to this sort of preparation. It may also be necessary to compensate foreign lawyers called on to assist at the preparatory stage. Extra travel may be involved. This is not the place to skimp on funding. If funds are limited the program should send fewer experts and devote the saved funds to preparatory activities.

Conclusion

Legal capacity building activities are worthwhile, but only if they are designed in a way to avoid the pitfalls of cross-cultural communication. American legal experts have a great deal of knowledge and experience that can be extremely useful in countries short on both. Legal capacity building can help host countries better cope with severe problems while avoiding an extended and costly learning curve.

At the same time, it is important that the people in the host country understand the ideas brought by the American experts. If they do not, they will at best not learn anything and the entire effort will have been wasted, except to provide a travel experience for the Americans. There may also be worse results. The foreign country may be persuaded to adopt a legal scheme inappropriate for it, through innocent but harmful mutual misunderstanding. This Dialogue illustrates some of the pitfalls of cross-cultural legal capacity building and opens the discussion of solutions with some concrete suggestions.

1. The importance of altering legal regimes in order to increase environmental protection in developing countries has been previously noted. See William Andreen, Environmental Law and International Assistance: The Challenge of Strengthening Environmental Law in the Developing World, 25 COLUM. J. ENVTL. L. 17 (2000); Mark A. Drumbl, Does Sharing Know Its Limits? Thoughts on Implementing International Environmental Agreements: A Review of National Environmental Policies, a Comparative Study of Capacity Building, 18 VA. ENVTL. L.J. 281 (1999) (discussing necessary political and legal arrangements); William Futrell et al., Lawyers on the Side of Life, 32 TEXAS INT'L L.J. 131 (1997). Calls for legal capacity building have been issued in areas besides environmental law. See Michael Bachrach, The Protections and Rights of Victims Under International Criminal Law, 34 INT'L LAW. 7, 19 (2000); Dror Ben-Asher,What's the Connection? Vietnam, the Rule of Law, Human Rights, and Anti-Trust, 21 HOUS. J. INT'L L. 427 (1999).

2. For an interesting account of how history has shaped a country's resistance to changing the environmental regime, and suggestions on how to overcome that history, see Ruth Greenspan Bell, Legitimacy, Trust, and the Environmental Agenda: Lessons From Armenia, 30 ELR 10771 (Sept. 2000).

3. Articles on Israeli law appear regularly in American law journals. A few of the recent, general articles are: Hon. Dalia Dorner, Does Israel Have a Constitution? 43 ST. LOUIS U. L.J. 1325 (1999); Amit M. Schejter, The Fairness Doctrine Is Dead and Living in Israel, 51 FED. COMM. L.J. 281 (1999) (media law); Rafael Efrat, The Evolution of the Fresh-Start Policy in Israeli Bankruptcy Law, 32 VAND. J. TRANSNAT'L L. 49 (1999); Shlomo Levin, The State of the Courts in Israel, 45 FED. LAW. 33 (1998).

4. See, e.g., H.C. 6698/95, Kahdan v. Israel Lands Auth., 54(1) P.D. 258, 279, 283 (discrimination); Cr.A. 1027/94, Silverman v. State of Israel, 99(3) Takdin Elyon 329, 337 (obligation of financial columnists to reveal stock interests); Cr.A. 4675/97 Rosov v. State of Israel, 99(3) Takdin Elyon 155, 177 (burden of proof in criminal proceedings).

5. Conference on Brownfield Redevelopment, Evolving a Model for Israel, presented by the Embassy and the Israel Export Institute, in cooperation with Israel's Ministry of Environment, the U.S. Environmental Training Institute, the U.S. Environmental Export Council, the U.S. Embassy in Israel, Commercial Section, with the sponsorship of AIG Insurance Company, in Tel Aviv (July 8, 1999).

6. Israel Brownfields 2000, Planning for the Recycling of Environmentally Contaminated Land, Technion Faculty of Architecture and Town Planning, Haifa (Jan. 5, 2000).

7. Cf. 42 U.S.C. § 9605(a)(8), (c)(1), ELR STAT. CERCLA § 105(a)(8), (c)(1) (Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)).

8. Jonathan Harr wrote a book by the same title describing a lawsuit over injuries from contamination at the W.R. Grace site in Woburn, Massachusetts. JONATHAN HARR, A CIVIL ACTION (1995). This book has now been made into a motion picture.

9. See also Tradesport, Trade Directory, Israel, Closing the Pi Glilot Gas Farm, at www.tradesport.org/ts/countries/Israel/mrr/mark0028.html (last visited Feb. 12, 2001).

10. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405 and other scattered sections of the U.S. Code.

11. Id. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11011.

12. See, e.g., Minnesota Environmental Response and Liability Act, MINN. STAT. § 115B.01-.24 (2000).

13. See 42 U.S.C. § 9607(a), ELR STAT. CERCLA § 107(a).

14. See, e.g., Nurad, Inc. v. Wm. E. Hooper & Sons Co., 966 F.2d 837, 22 ELR 20936 (4th Cir. 1992) (reading a provision imposing liability on owner "at the time of disposal" to include owner at the time waste moved through the environment without any active involvement of the owner); FMC Corp. v. Department of Commerce, 29 F.3d 833, 24 ELR 21097 (3d Cir. 1994) (holding that the United States was "operator" of a plant under the statute because the plant had been operated during World War II at the government's direction, although under ownership of a private corporation).

15. See United States v. Northeastern Pharmaceutical & Chem. Co., 810 F.2d 726, 733-34, 17 ELR 20603 (8th Cir. 1986), cert. denied sub nom. Northeastern Pharmaceutical & Chem. Co. v. United States, 484 U.S. 848 (1987).

16. The Water Law 1959, § 20.2 (translated by the author).

17. Id. § 20.7(1).

18. Id. § 20.21. This section provides a criminal sanction for violating any requirement of the part of the Water Law that deals with water pollution prevention. This includes the general requirement to "refrain from any activity that … is liable to cause water pollution." Id.

19. These include The Maintenance of Cleanliness Law, 1984; The Public Health Ordinance; The Business Licensing Law, 1968; and The Business Licensing Rules (Disposal of Hazardous Substances), 1990.

20. Cf. Rachelle Adam, Government Failure and Public Indifference: A Portrait of Water Pollution in Israel, 11 COLO. J. INT'L ENVTL. L. & POL'Y 257, 270-71 (2000) (charts showing the dispersal of authority over water pollution among eight different national authorities).

21. See id. at 269-96.

22. For example, it has been shown that penalties assessed against polluters by the courts are completely inadequate to recoup profits made from polluting. Alon Tal, The Economic Benefits of Noncompliance With Environmental Law: The Role of Economic Analysis in Assessing Penalties for Polluters in Israel, ECOLOGIA V'SVIVA [ECOLOGY & ENV'T], Jan. 2000, at 2 (in Hebrew).

23. This issue was raised in a recent petition to the Supreme Court, in an action for judicial review of a Ministry of Environment cleanup order. H.C. 6252/99, Itanit Bldg. Materials v. Minister of Env't, Petition of Petitioner Itanit, Sept. 3, 1999 (in Hebrew) (on file with author). The case was settled without the court's reaching this issue.

24. Basic Law: Human Dignity and Freedom, § 3, 1992, S.H. 150.

25. Basic Law: Freedom of Occupation § 3, 1994, S.H. 90.

26. On the constitutional status of these laws, see Marcia Gelpe, Constraints on the Supreme Court Authority in Israel and the United States: Phenomenal Cosmic Powers; Itty Bitty Living Space, 13 EMORY INT'L L. REV. 493, 500-05 (1999).

27. The leading case is United States v. Northeastern Pharmaceutical & Chem. Co., 810 F.2d 726, 17 ELR 20603 (8th Cir. 1986), cert. denied sub nom. Northeastern Pharmaceutical & Chem. Co. v. United States, 484 U.S. 848 (1987). See also United States v. Monsanto, 858 F.2d 160, 19 ELR 20085 (4th Cir. 1988) cert. denied sub nom. Monsanto v. United States, 490 U.S. 1106 (1989); Franklin County Convention Facilities Auth. v. American Premier Underwriters, 61 F. Supp. 2d 740 (S.D. Ohio 1999); United States v. Dico, Inc., 189 F.R.D. 536 (S.D. Iowa 1999) (containing a good discussion of the issue); United States v. Vertac Chem. Corp., 33 F. Supp. 2d 769, 29 ELR 21060 (E.D. Ark. 1998).

28. This is the U.S. Environmental Protection Agency's (EPA's) definition. See http://www.epa.gov/swerosps/bf/glossary.htm#brow (last visited Feb. 18, 2001). See also Linda K. Breggin & John Pendergrass, Voluntary and Brownfields Remediation Programs: An Overview of the Environmental Law Institute's 1998 Research, 29 ELR 10339, 10344 n.68 (June 1999) ("The most common criteria used by states for including sites in their brownfields programs are that the sites are abandoned or underutilized and have potential for redevelopment.").

29. It was recently reported that if the 60% of Israel's land that is very sparsely populated desert is ignored, the rest of the country is more densely populated than any country other than Bangladesh. Prof. Yoram Avnimelech, Technion Israel Institute of Technology, Environmental Myths (Israel Channel 1 radio broadcast, Feb. 6, 2001) (in Hebrew).

30. 42 U.S.C. §§ 9601(35), 9607(b)(3), ELR STAT. CERCLA §§ 101(35), 107(b)(3).

31. This is the first time that permits have been delayed for such a reason. Interview with Moshe Belsinheim, Director of the Environmental Quality Unit, City of Tel Aviv, at Kibbutz Ketura, Israel (Feb. 14, 2001).

32. See Basic Law: Israel Lands; Israel Lands Authority Law, 1960; ROBERT A. SIMONS, BROWNFIELDS IN ISRAEL (on file with author).

33. For example, the badly polluted site near Tel Aviv where the Israel Military Industry operated a weapons manufacturing facility is owned by the Israel Lands Authority. See H.C. 3485/00, Adam Teva v'Din—Israeli Union for Envtl. Defense v. Israel Military Indus., Petition of Adam Teva v'Din.

34. Israel Lands Authority Law, 1960, §§ 2, 3. See H.C. 6698/95, Kaadan v. Israel Lands Auth., 54(1) P.D. 258.

35. See Kaadan, 54(1) P.D. at 258.

36. See YITZHAK ZAMIR, I HASAMCHUT HAMINHALI [THE ADMINISTRATIVE AUTHORITY] 236-37 (1996) (in Hebrew).

37. Government Companies Law, 1975.

38. See WILLIAM FRANKEL, ISRAEL OBSERVED: AN ANATOMY OF THE STATE 34-35 (1980).

39. See Adam, supra note 20, at 325-33.

40. See H.C. 3485/00, Adam Teva v'Din—Israeli Union for Envtl. Defense v. Israel Military Indus., Petition of Adam Teva v'Din (on file with author).

41. See Planning and Building Law, 1965, §§ 61-62b.

42. See id. § 119b; Planning and Building Regulations (Environmental Impact Statements), 1982.

43. See A.R. (Hi.) 166/98, The Association for Envtl. Quality & Life in Nahariya v. City of Nahariya, 98(3) Takdin-Mehozi 459 (1998).

44. The city of Jerusalem did not have secondary treatment for any of it sewage until recently; it still treats only part of its effluent. Raw sewage from coastal towns regularly contaminates the Mediterranean Sea. Three of Israel's cities (Acre, Nahariya, and Beit She' an) do not even have wastewater treatment plants. Wastewater Treatment and Reuse, 23 ISRAEL ENV'T BULL. 8 (2000).

45. The recent delay of a decision on a building permit in Tel Aviv may be a sign of a change. See supra note 31.

46. CERCLA provides public notice of any cleanup plan, including "sufficient information as may be necessary to provide a reasonable explanation of the proposed plan and alternative proposals considered." 42 U.S.C. § 9617(a), ELR STAT. CERCLA § 117(a).

47. 5 U.S.C. § 552.

48. This statute, as interpreted by the courts, provides the public with a right to all information supporting proposed and final rules, including of course those on cleanup of contaminated land. See 5 U.S.C. § 553(b), (c), available in ELR STAT. ADMIN. PROC.; see ALFRED C. AMAN JR. & WILLIAM T. MAYTON, ADMINISTRATIVE LAW §§ 2.1.2 & 2.1.3, at 53-63 (1993).

49. CERCLA provides for two types of cleanup actions for contaminated properties: removal actions and remedial actions. "Removal actions" encompass all actions related to preventing threatened releases of hazardous substances into the environment and cleanup of released hazardous substances, including associated assessments, monitoring, etc. 42 U.S.C. § 9601(23), ELR STAT. CERCLA § 101(23). "Remedial actions" encompass other actions needed to provide a permanent solution to contaminated land problems, such as setting up a protective perimeter of ditches around a contaminated site and relocating residents and facilities. 42 U.S.C. § 9601(24), ELR STAT. CERCLA § 101(24). Interested persons have a right to participate in determination of both removal and remedial actions. 42 U.S.C. §§ 9613(k)(2)(A), (B), 9617(a), (b), ELR STAT. CERCLA §§ 113(k)(2)(A), (B), 117(a), (b).

50. See WILLIAM F. FOX JR., UNDERSTANDING ADMINISTRATIVE LAW § 37, at 201 (3d ed. 1997).

51. See particularly the detailed rights set out as to remedial action plans in 42 U.S.C. § 9617(a), (b), ELR STAT. CERCLA § 117(a), (b).

52. This is derived from the general right of interested parties to participate in formulation of all substantive rules. See 5 U.S.C. § 553(c), available in ELR STAT. ADMIN. PROC. (right to have notice of proposed rules and opportunity to comment) and AMAN & MAYTON, supra note 48, § 2.1.4, at 56-67 (obligation of government to consider the comments and respond to those that are significant).

53. See 42 U.S.C. § 9622(d)(2)(B), ELR STAT. CERCLA § 122(d)(2)(B).

54. See id. § 9659(a)(1), ELR STAT. CERCLA § 310(a)(1).

55. See id.

56. Freedom of Information Law, 1998, § 1.

57. Id. §§ 8, 9.

58. See Natziv Ha'mayim Horah Lo Lachsof Ha'mimtzaim [The Water Commissioners' Orders Not to Reveal the Findings] (in Hebrew), HAARETZ, May 12, 2000, at 5a.

59. See Hanchayot Ha'yoetz Ha'mishpati La'memshalah, Hanchaya 60.012 (Chakikah Mishneh: Nohal v'Hanchayot) [Guidelines of the Legal Advisor to the Government, Guideline 60.012 (Secondary Legislation: Procedure and Guidelines)] (in Hebrew).

60. See The Building and Planning Law, 1965, § 100.

61. See The Building and Planning Regulations (Environmental Impact Surveys), 1982.

62. A.P. [Administrative Petition] (Haifa) 166/98, The Organization for the Quality of the Env't & Life in Nahariya v. The City of Nahariya, 98(3) Takdin-Mechozi 459.

63. See H.C. 910/86, Ressler v. Minister of Defense, 42(2) P.D. 441; see generally ZEEV SEGAL, STANDING BEFORE THE SUPREME COURT SITTING AS A HIGH COURT OF JUSTICE (2d ed. 1993) (in Hebrew).

64. For an analogous case, in which a public interest group sued several local authorities to get them to treat their sewage, see H.C. 1131/93, Adam, Teva v'Din v. Minister of Interior, 94 (1) Takdin-Elyon 324.

65. See Efrat, supra note 3, at 51-52 n.4.

66. I witnessed this phenomenon when I served as a member of the Interministerial Commission of the Government of Israel to Establish Procedures and Methodology for Setting Environmental Standards, appointed by the government of Israel, during 1996-1997.

67. See Gelpe, supra note 26, at 537-39.