Background
In 2021, Shapir Engineering and Navigation Ltd. and Bloom Technology Ltd. (the operators) won a tender to upgrade and operate a desalination facility in Ashdod’s northern industrial zone. To power the facility, they proposed building a co-located power station with five 100-megawatt generating units fueled by gas engines. Part of the power would supply the desalination plant, while excess capacity would feed Israel’s national electrical grid. The facility received approval under the planning system, and the Environment Ministry’s supervisor issued Emissions Permit No. 2211 under the Clean Air Act, 2008.
Six respondents—including Ashdod and Yavne municipalities and several environmental organizations—challenged the permit in the district court. On June 8, 2025, the District Court of Jerusalem canceled the permit and remanded the matter to the supervisor for reconsideration, holding that the supervisor must comply with the statutory requirement of “best available technique” (BAT) by comparing different power generation technologies and selecting the cleanest option, rather than simply imposing emission controls on the chosen facility.
The operators and the State appealed to the Supreme Court, requesting a stay of the District Court’s decision pending appeal. Justice Alex Stein considered whether the appeal had sufficient merit and whether the balance of convenience favored a stay.
The Court’s Holding
Justice Stein granted the stay and found the appeal has good prospects of success. The court rejected the District Court’s broad interpretation of “best available technique.” The statutory text of section 22(d) of the Clean Air Act explicitly distinguishes between “source of emissions” and the technique that must accompany it. Similarly, section 2’s definition of “best available technique” refers to “technology and other advanced methods serving in the design, construction, operation and maintenance of a source of emissions,” or “technology and means aimed at preventing or reducing air pollution, added to a source of emissions.” The statute thus separates the source (the facility choice) from the technique (the emission control measures).
Justice Stein drew support from the concept’s origins in the U.S. Clean Air Act’s “best available control technology” (BACT). U.S. courts, including the influential Helping Hand Tools v. EPA (9th Circuit 2016), have held that BACT does not require choosing among fundamentally different facility designs—a doctrine known as the “redefining the source” rule. Under that doctrine, a coal-fired power plant need not consider nuclear power as an alternative because it would require a complete redesign of the facility. The supervisor may instead require add-on controls and measures to optimize the chosen facility’s emissions performance. Justice Stein concluded that the Israeli statute, which is based on the American model, embodies the same principle: the supervisor must impose the best available controls on the operator’s chosen facility but cannot compel the operator to redesign or replace the facility itself.
Regarding the balance of convenience, Justice Stein acknowledged that weighing economic harm to the operators against environmental and health harm to the public presents an “incommensurability” problem—the two types of harm operate on different scales and cannot be meaningfully compared. However, he found that once the appeal’s merits pointed clearly toward the operators’ interpretation, the balance of convenience favored staying the order to preserve the status quo pending resolution.
Key Takeaways
- The statutory requirement of “best available technique” requires the permitting authority to impose optimal emission control measures on the operator’s chosen facility, not to select between competing facility types or power generation technologies.
- The Israeli statute’s language and structure—distinguishing between the “source of emissions” and the “technique”—mirrors the U.S. Clean Air Act and incorporates the American “best available control technology” principle, including the “redefining the source” doctrine that restricts regulators’ authority to demand facility redesigns.
- A stay of enforcement pending appeal was warranted because the appeal raised a substantial legal question with good prospects of success, and the incommensurability of the competing harms (economic vs. environmental/health) meant the balance of convenience did not clearly favor either party—but favored preserving the status quo.
- The lower court’s requirement that the supervisor compare and choose among different power generation technologies exceeded the statutory mandate and was not supported by the statute’s text or regulatory design.
Why It Matters
This decision clarifies the scope of environmental regulators’ authority under Israeli air quality law. By adopting the U.S. “redefining the source” doctrine, the court has held that the permitting process focuses on optimizing a chosen facility’s emission controls, not on second-guessing the operator’s core technology choice. This distinction has significant implications for industrial projects that require energy-intensive infrastructure: regulators cannot unilaterally impose fundamental redesigns after a permit has been issued and major investments made, though they retain full authority to impose or strengthen emission control requirements on the chosen facility.
The case also illustrates how Israeli courts interpret statutes that reference or are modeled on foreign legal frameworks—here, the court looked to American precedent to constrain what might otherwise appear to be an expansive regulatory mandate. The decision balances regulatory authority to protect air quality against legal certainty and finality for permit holders, an ongoing tension in environmental law worldwide. The appeal is scheduled for December 2, 2026, and the full merits decision will likely provide further guidance on whether Israeli law should follow the American or European approach to emissions regulation.