|Letter to the Ministry of Energy and Water Resources|
Feb. 16, 2012
To: Yossi Wurzburger, director of natural-resources administration
Ministry of Energy and Water Resources
Re: Comments on the Petroleum Regulation Memorandum (Permission to deviate from the provisions of the Planning and Building Law)
I am honored to present my comments on the Regulation Memorandum (Permission to deviate from the provisions of the Planning and Building Law) (hereinafter: “The Memorandum”) published in the Ministry of Energy and Water Resources site. My comments are presented in the order of memorandum items and not by priority.
1. Regulation 1 and Regulation 3: These sections demonstrate that when applying for an oil drilling permit, one is not required to present a detailed plan, as would be required without the deviation from the Planning and Building law, but a “request” only. The properties of such as “request” differ from those of a detailed plan. A major difference is regarding the lack of requirement for the application to include references to plans of a higher grade applicable to the area for which the application is requested. In addition, the proposed planning procedure does not distinguish between the planning and the licensing phases.
The exemption from referencing plans of a higher grade applicable to the application area is unlikely for several reasons:
a. The exemption contradicts the national planning policy requiring gradual planning and addressing zoning determined at the state, regional and local level. This absence of reference might mislead the public and the planning authorities regarding planned zoning in the area. Drilling (if approved) might prevent future use of the land. A request that does not refer to the current and future planning of the area and the existing land purpose is an "island" of lack of planning in a sea of planning, and endangers any planning achievements attained for such areas.
b. The exemption is unreasonable due to the environmental impact of oil drilling. An oil drill is an industrial and infrastructural facility for all purposes, in which hazardous substances are used, in which emissions to the environment, air, earth and water might occur, and in which there is (and unfortunately not so small) a probability for accidents and groundwater contamination (in relevant areas). There is no justification for exempting oil drilling from the stringent requirements applying to industrial facilities with similar characteristics (for which the economic incentive and motive for a swift approval is as large).
c. The exemption from referring to plans of a higher grade impairs the factual basis placed in front of the regional planning committee, and this committee is obliged to make decisions based on factual basis. An administrative and planning decision is judged by the integrity of its factual basis (See Daphna Barak-Erez, Administrative Law, Volume I, page 439 (2009)). It is pointless to reach a decision whose arguments are appropriate and reasonable if does not fit the factual circumstances. The regional committee must base its decision on sufficient facts. In this case, since the potential impact of oil drilling on man and environment is high, the required evidentiary standard for a regional committee hearing is strict as well. (Compare to Barak Erez page 447.)
In light of the above, partial factual basis will not suffice, and the request presented to the regional committee must include a full reference to all programs applicable to the region and to alternative drilling sites (see discussion below in my comments regarding the environmental document).
2. Regulation 1 – The environmental document mentioned in the regulation is a document of unclear legal standing. Since there is no definition in the authorizing act to an "environmental document" as stated, many open questions remain regarding the legality of its requirement, its stature, who is authorized to edit it, who is authorized to examine it, and what data exactly should this document contain. For example, it is not stated that document is to include a full detail of a monitoring plan for environmental emissions from the drilling facility — how would this plan be implemented, as well as a detailed list of reports and information that would be transmitted to the supervisor responsible for the existence of the environmental document. Especially disconcerting is the fact that the environmental document as defined in the memo is not obliged to perform an examination of alternatives, including the zero alternative (no implementation).
Given the absence of needed detail, and lack of clarity regarding these issues (and others), any deviation from the existing mechanism of an environmental-impact assessment must be avoided.
The absence of a requirement for an examination of alternatives, including the zero alternative, impairs the factual basis placed in front of the regional planning committee when making a decision. This not only puts the decision-making process in a negative light, as if it is meant to approve the request regardless, but might also lead to a decision that could be found flawed under judicial review.
3. Regulation 3(2) – This regulation leaves the decision of whether to request an environmental document to the discretion of the committee. Leaving this decision to the discretion of the committee is neither desirable nor helpful, for the following reasons:
a. As stated above, any oil drilling has far-reaching environmental implications. There is no sense in requiring an environmental document for only some of the wells.
b. Requiring the preparation of an environmental document as an obligatory part of the request process would cause certainty among oil drilling requestors and would allow them to prepare in advance.
c. Imposing a binding requirement in all cases would ultimately shorten schedules since this requirement would be known in advance and would not be made once the request hearing was already underway.
d. This will reduce the exposure of the regional committee to pressures from financiers and entrepreneurs.
4. Regulation 4(1) - Allowing filing objects to a request is appropriate and desirable given the importance of transparency and public participation in such matters.
5. Regulation 4(ix) - Preventing filing appeals to the state council of planning and building is undesirable. This regulation would not streamline the process, since the lack of possibility of appealing to the state committee over decisions of the regional committee would lead in suitable cases to the filing of an administrative complaint in court against the decision of the regional committee. Filing legal action would further delay the process.
6. Regulation 5(4) – Mentions sub-terrain heating as included in the oil-drilling process. Sub-terrain heating is a procedure used in producing fuel from oil shale, a procedure completely different from routine oil drilling. Including this procedure in the above indicates an intention to apply these regulations to fuel production from oil shale, although this was not explicitly stated. This intent directly contradicts the petroleum law, which does not address fuel production from oil shale. It should be mentioned that this interpretation of the petroleum law is pending in the Supreme Court. It is inappropriate that regulations would operate under the guise of determining planning processes, and would enter through a back door technology that is different, controversial, and has planning and environmental impact that is totally different from routine oil drilling. This is akin to mixing oil and water. In light of the fact that there is no national master plan for fuel production from oil shale, and given the uncertainty surrounding technologies needed for producing fuel in this matter, we must not allow binding these two methods together.
7. Regulation 7(b) – Although this regulation is poorly worded, subject to varied interpretation, and is not tied to the situation addressed by the regulation, I will comment as follows:
a. It is unclear what the “procedures needed to for fuel production” mentioned in this section are, in contrast to the procedures “for fuel production” defined in section 1.
b. The regulation mentions procedures “for commercial oil production.” These are not mentioned at all in the regulations, and the regulations do not apply to them.
c. The regulation probably requires submitting a detailed plan in order to approve “commercial oil production” to one whose drilling request had already been discussed by the committee prior to the regulation start date.
d. Commercial oil production is a procedure different in essence and scope from fuel-exploration drilling. Therefore is it unreasonable to allow commercial operation prior to approving a detailed plan (as the regulation allows).
In order to properly regulate the planning process related to “commercial oil production” a comprehensive settlement must be established, and this issue must not be added as a misplaced patch.
To summarize, the said regulations contain the blessed aspect of regulating the planning procedure applicable to oil drilling, a process unregulated thus far. However, the regulation manner is inadequate and raises concerns of an attempt to allow rapid approval of “drilling requests.” Although there is an interest and need to increase the efficiency of planning processes in such cases, this interest must be balanced properly against the interest of a process that is transparent, controlled and based on an adequate evidentiary foundation. It appears that in these regulations as they are, the required balance has been violated. The proposed amendments will allow improving the balance between planning efficiency considerations on the one hand, and strict protection of proper and sustainable planning on the other.
Dr. Orr Karassin
Dr. Orr Karassin is a Green Zionist Alliance representative to the board of directors of Jewish National Fund in Israel.
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