Discussion and Decision
- I did not find it acceptable to accept the respondents' argument that the alleged odor hazard is an extension of the façade. The claim was made as stated above in the statement of claims, it is true that in a somewhat minor manner, and no 'external evidence' was even brought in support of it.
- After considering the arguments of the parties to the dispute at hand, I have come to the conclusion that the Applicants have not been able to prove that the Respondents (and they alone) create a "strong or unreasonable odor" that disturbs or is likely to disturb the person.
- An "odor" hazard is included in the definition of an "environmental hazard" in the Prevention of Environmental Hazards Law. For the purpose of defining "smell", the aforementioned law refers to the Prevention of Hazards Law, 5721-1961, in which it is stipulated in section 3 that "a person shall not cause a strong or unreasonable odor, from any source whatsoever, if it disturbs, or is likely to disturb, a person in the vicinity or passersby".
- Hence, in order to show that there is a real chance that the Respondents are causing an "environmental hazard", the Applicants are required to lay an appropriate evidentiary foundation that will prove that the Respondents create a "strong or unreasonable odor" that disturbs or is likely to disturb the person.
- An "environmental hazard" also includes an odor hazard. However, this does not mean that every odor hazard is also considered an "environmental hazard", only an odor of this type that meets the conditions set forth in the definition of the term "environmental hazard" in the Prevention of Environmental Hazards Law , is an environmental hazard to which Item 6
- Brautman testified regarding the alleged odor hazard, inter alia, that:
- "... I have to say that in recent years they have probably done some kind of activity there, right? And the smells went down, because in the past there were very strong smells."There were periods, there were periods" (page 865, lines 20-23).
- In his interrogation, Brautman confirmed that there were many sources of odor hazards, and that he had not filed a complaint about the odor (page 866, lines 2-12).
- According to him later"...Of course, if the waste site (cough) also burns fuel or things like that, then it will have the same smell" (page 869, lines 5-7).
- Klein testified regarding the alleged odor hazard, inter alia, as follows:
- Because he remembers from his childhood and afterwards "unpleasant smells", especially in the afternoon (page 922, lines 25-27), and later "you feel smells in the afternoon" (page 926, lines 1-16).
- Klein also testified regarding the odor hazard that the Kishon River also affected "...You would have blocked the nose because the Kishon spread very, very unpleasant smells around it" (page 931, lines 8-10).
- He went on to describe the air in his childhood decades ago as "bad air," "murky air" (p. 926).
- In her testimony regarding the alleged odor hazard, Mrs. Kraus testified, inter alia, that beginning in 1997 she saw "a cloud lying over the bay", that they moved to another apartment in Neve Sha'anan (in 2003) where they often "smelled bad chemical odors coming from the bay" (page 1036, lines 1-5).
- The expert-psychologist, Prof. Molly Lahad, on behalf of the applicants, noted in his testimony, inter alia, that "... And it's also from the yellowish cloud that was often in Haifa Bay and also the smells, listen, I grew up in the Haifa area, I can say unpleasant smells." (page 1102, lines 12-16).
- The expert on behalf of the respondents , Prof. Gad Rennert – who has lived in Haifa for many years – noted regarding the alleged odor hazard, inter alia:
The only thing I want to say, don't be impressed by the smell or the colors, it's not the indicators, OK? The smell in the bay is mainly of tanners in general, of the leather processing industries. Anyone who lives in Haifa knows this. That's one. Two, the smoke that rises from the bricks is white because you paint, it's water vapor, you paint them. Again, under no circumstances am I trying to protect the industry, but just not to be impressed. There are objective measures, there are ways to measure, and again, if it crosses the threshold, then it must be prevented from crossing the threshold, and if it does not cross the threshold, then do not make a fuss about it. This is all (page 1936) [see also: testimony of Dr. Livki at length, pp. 1778-1783).
- From the testimony of the applicants, which was summarized above, it emerges that none of them called and described the smell (as of the relevant date) as "a strong or unreasonable odor".
- Moreover, Mr. Brautman emphasized that in recent years, the smells have decreased.
- Regarding the source of the odors, Klein noted that the Kishon River emitted very unpleasant odors, and Mr. Brautman confirmed that there are many sources of the odor hazard, including the site of the waste incineration (see also Prof. Rennert's testimony above).
- None of the applicants filed a complaint about the odor hazard.
- Needless to say, the Applicants' (alternative) claim regarding the odor hazard was not supported by an expert opinion on their behalf.
- The court's impression is that it has not been proven by the Applicants with respect to the 'odor hazard' (which was claimed as an alternative claim) that it is a strong or unreasonable odor hazard, which prevails throughout the Bay Area and originates only from the Respondents.
- In Class Action (Center) 20607-04-11 Lieberman v. Moses Kfar Saba in a Tax Appeal (published in Nevo, October 30, 2014) (hereinafter: "The Lieberman Case"), it was held, inter alia:
In order to prove the existence of an environmental hazard, it is not enough to prove that the business violates a statutory provision (in our case, there is no dispute that the Moses restaurant operated and is operating without a business license), but it is required to prove that in addition to this, the business causes a "strong or unreasonable odor" that disturbs or is likely to disturb a person, or "air pollution", as defined in the Clean Air Law. As stated, the Applicant's feeling alone, when it is not supported by the affidavits of other class members, cannot even constitute the first evidentiary basis for such a claim (and compare Criminal Appeal (Haifa) 39853-06-11 Peleg v. Ministry of the Environment - Haifa District (given on March 19, 2012). hereinafter: "The Peleg case") in which Justice Ron Shapira pointed out the difficulty in "determining a strong or unreasonable odor, based on the claim of an anonymous person, that he will naturally bring his subjective feelings and perception to the definition of what is an unreasonable or strong odor, while the law's requirement to define a strong or unreasonable smell is objective "according to the test of the reasonable person and not according to the specific person who was sensitive" [quoted from Criminal Appeal 151/84 Israel Electric Company v. Prasht, IsrSC 39(3) 1, 5] (ibid., section 15).
- It was also held in the Lieberman case above, inter alia:
Another way to prove the existence of an odor hazard is through the opinion of an expert in this field. Thus, for example, according to the procedure for defining odor hazards, the existence of an odor hazard can also be proven by any of the following: 1. "A report from an official (an employee of the ministry, a municipal association, a local authority) who has undergone training... " (Section 4.2 of the Procedure; See also Peleg's case); 2. "Determination of the smelling team..." (Section 4.3 of the Procedure); 3. "An expert's determination..." (Section 4.4 of the Procedure).
- As the court concluded in the Lieberman case above, and the words are valid in our case as well, the only evidence before the court, according to which the smell emitted by the respondents is an "unpleasant smell", is the unprofessional testimony of the applicants "...This evidence alone, when it is not supported either by an opinion, not by an affidavit of a person with appropriate training, does not provide for the assumption of a prima facie evidentiary basis that would enable it to be determined that the claim that the respondents create an environmental hazard has a reasonable possibility of acceptance" (ibid., paragraph 18).
- In our case, the applicants' arguments are also that the (alleged) odor hazard caused by the respondents is contrary to the statute. In order to substantiate these claims, the applicants had to prove that they deviated from an objective standard. It is not sufficient to claim that the smell caused subjective discomfort to the applicants or to any of them. In the absence of proof by an objective standard, there is great difficulty in determining that it has been proven that the alleged odor hazard is an "environmental hazard", which is included in Item 6 of the Second Addendum to the Law, and especially in view of the testimonies of the Applicants and Prof. Rennert as cited above regarding the source of the odor, and in light of Mr. Brautman's admission that in recent years "the smells have decreased" (see also: Class Action (Center) 60781-07-20 Cohen v. Rishon LeZion Municipality (published in Nevo, April 8, 2025)).
The Psychological Survey [Appendix 4.2]
- In their affidavits of testimony, the applicants argued in the same manner, inter alia, that "...Ever since I learned of the health risks caused by air pollution as a result of the emission of hazardous substances from the industrial plants in Haifa Bay, I have been very concerned about my health, and that the knowledge that as a result of air pollution increases the chance of developing cancer, "...causes me great anguish, despair and great fear for my health" (see paragraph 7 of the affidavits of Klein and Brautman; Paragraph 5 of Blum's affidavit; Paragraph 8 of Krauss's affidavit [and also paragraph 6 of her affidavit]).
- All the Applicants also referred in their affidavits to what was stated in Prof. Lin's opinion, which they said was produced for their review, and noted with regard to what was stated therein that "...This determination causes me to be extremely anxious that I am more exposed to cancer" (see paragraphs 10-11 of the affidavits of Klein and Brautman; paragraphs 8-9 of Bloom's affidavit and paragraphs 11-12 of Krauss's affidavit).
- Molly Lahad and Mr. Dima Leikin published a survey designed to provide an up-to-date and comparative picture of the behavioral effects on the civilian population exposed to air pollution in their area. The survey examined and compared attitudes toward the consequences and effects of air pollution among residents of Haifa Bay (500 subjects) and residents of the center (494 subjects) (see Appendix 4.2 to the application for approval). The survey questionnaires and raw data were not attached, but only a summary opinion.
- The concluding opinion argued, inter alia, that the findings of the survey raise a worrying picture regarding the psychological effects of the presence of the factories in March in Haifa. It seems that there is increased concern about the damage to the environment, which is marked second in terms of intensity (after security threats), compared to the residents of the central region who are similar to them. In addition, the damage to the environment is perceived by the residents of Haifa, as opposed to the residents of the center, as one of the three threats that most endanger them and their families.
- These findings add to the global body of research that indicates that various environmental threats have a negative impact on human mental health, including a decrease in the level of mental well-being, an increase in anxiety and depression levels, and a negative impact on cognitive functions.
- Lahad and Mr. Leikin concluded the opinion by stating that "...It can be concluded that our findings support the assumption that the presence of the factories has a clear negative impact on their lifestyles and perception of the mental and physical health of hundreds of thousands of residents of Haifa Bay, whether they are connected to the factories (and it could be assumed that they will be anxious for their livelihood) or whether they are mere residents. According to what is known in the world, this suffering has long-term psychological implications."
- Against this opinion, the respondents submitted an opinion by Dr. Kfir Yifrach, a clinical psychologist. According to the expert, in summary, the opinion of the applicants' experts suffers from basic methodological failures that negate its conclusions. The opinion assumes that there is air pollution, but as stated, this assumption is erroneous. In addition, the questionnaires reflect subjective reports that were not quantified numerically, were not compared to a control group, did not address possible alternative explanations, and did not examine the relationship between cause and effect over time. In addition, the statistical tests to examine the significance of the relationship being examined are not described, and there is no reference to important personal characteristics that could explain the differences between the groups that responded to the survey.
Testimony of Prof. Molly Lahad and Dr. Dima Leikin
- In his interrogation, Prof. Lahad confirmed that although he himself knows that the burning torch visible from a distance on the second page of the questionnaire actually means that at that time no pollutants are emitted into the air, as far as people are concerned, the torch is a source of anxiety:
Q: You know if when there's a flame from the torch it's It means that substances are emitted into the environment or it means the opposite, that substances are not emitted into the environmentDo you know how to say that? To answer that?