The Citizens for the Environment, a non-profit organisation, filed a claim and a motion to certify the claim as a class action against 30 plants in the Haifa Bay region, arguing that the plants polluted the environment and caused bodily injuries to the class members who were exposed to the hazardous materials which the plants emitted.(1)
The Haifa Bay area has lots of business activity, including industrial plants engaged in the chemical, petrochemical and energy industries (conducting activities such as storage and transport), which allegedly emit various materials – including contaminating and hazardous substances – into the air.
In recent decades, the authorities' supervisory powers and relevant legislation have been enhanced by laws and regulations against pollution which may cause interference or damage to humans in the surrounding areas. In 2008 the Clean Air Law was passed, imposing limitations on contaminating activities, licensing duties and the monitoring of air quality. In addition, public struggles against these pollutant plants have put pressure on the authorities' decisions and the creation of strategies prepared to limit the Haifa Bay's contamination.
The claimants held that researchers have shown that in the Haifa region, the rate of sickness due to cancer (lung cancer and non-Hodgkin lymphoma) is higher than the national average. For example, in the years 2001 to 2005, Haifa's lung cancer rate was 22% higher than the national average. A similar increase was found with regard to non-Hodgkin lymphoma during the same period. It was alleged that there is a causal connection between hazardous materials emitted to the air and the high sickness rate. The claimants held that the respondents had breached the law and exceeded the emission quantities set by the regulations, causing bodily injuries to many Haifa residents. The claimants argued that this behaviour constituted the tort of negligence and a breach of statutory duty.
Motion to strike out in limine – parties' arguments
The respondents submitted a motion to strike out the claim in limine. They argued that it was impossible to handle a claim for bodily injuries caused by environmental pollution in a class action procedure.
According to the respondents, a claim of bodily injury due to air contamination should not be dealt with as a class action because most of the factual and legal issues which are raised are particular and not common to all of the class members. Each injured person will have to prove liability, the actual damage caused and the potential and specific causal connection between the actions of a specific plant to the alleged damage.
The court declined the motion to strike out the claim. First, the court considered the objective of the class action procedure, which is a special tool by which a claimant may bring the cause of many class members who do not take part in the proceeding into a judicial determination. Usually this concerns cases in which the damage caused to each of the class members is not significant so as to justify a personal claim.
However, there is an interest in enabling difficult and complicated claims which the public interest is in favour of, in order to deter defendants from breaching the law and in order to obtain arrangements which may end the proceeding for the benefit of the whole class. The class action is also a tool for the private enforcement of public and private interests where the authorities' enforcement is less effective.
Usually, a motion to dismiss a claim will be dealt with rarely at the preliminary stage of the certification of the claim. However, where threshold arguments are clear and can be easily determined, this will justify the dismissal of a class action at the preliminary stage. However, this was not the case in this dispute.
The court asked whether the class action procedure would be efficient and fair, which is the test provided by the Class Actions Law 2006. In answering this question, the court emphasised that at this stage, the decision will be only whether to dismiss the claim or deal with it further.
The common question to all respondents was, first of all, the issue of liability. This issue raised secondary issues concerning the materials which were emitted by each of the respondents and whether this emission constituted a breach of the law by any of them. As the claim dealt with mass exposure to hazardous substances which originated from different tortfeasors, the question of how the allocation of liability will best be done emerged. The causal connection issue was also complicated and raised issues which were common to the class as a whole and issues which were particular, and which will be based on statistic and scientific evidence. Finally, the court has a broad discretion on how to allocate the damage. However, particular issues will require determination concerning the medical situation of each class member, their losses and their life expectancy, among other things.
The legislature was aware of the fact that in some claims, not all of the issues will be dealt with in a class action, and granted the courts tools which may assist them in determining the issue of the remedies to the class members, even though a class is not homogenous.
The consideration to which the court gave the heaviest weight was the public interest in handling complicated claims for environmental contamination, which may reach a court determination only through the class action procedure, which will have a deterrent effect. In addition, the court held that it will be more efficient to deal with the exposure to numerous potential contaminant bodies instead of handling particular individual proceedings against each of the respondents.
In view of the above considerations and especially in order to fulfil the objective of the private enforcement of environmental laws, the judge decided that at this stage the proceedings will continue and emphasised that this decision does not accept the claim, but rather only opens the door to a hearing.
Notably, the motion to dismiss was submitted prior to the respondents filing their responses to the motion and the claim. Therefore, the progress of these proceedings should be followed in order to learn how the court will deal with this precedential claim in the future.
Endnotes
(1) Class action 36568-07-19 Citizens for the Environment v Elcon Recycling Center and others.
