The Freedom of Occupation and its Limitation - Between the Conveyance of Hazardous Substances in a Pipe Line and its Transport in a Road Vehicle
"Din Vaomer" Journal of The Israel Bar, Haifa and North District Region, Vol. 11
Tzvi Levinson & Tal Tzafrir, Advocates
The Haifa District Court confirmed the indictment of two firms in a charge of operating without a Business License for the "transport" of fuel in a pipe-line. The Court further ruled that the law required the firms to obtain a Business License from every municipality through which their pipe-line passes. We feel that the reasons advanced to support the indictment are misfounded as they are not proportionate and stand in variance with the constitutional tenets of Basic Law: Freedom of Occupation. When the Legislator made municipalities the "Licensing Authorities" it was with the presumption that a municipality has a unique interest in the environmental and safety aspects of activities in its borders; an interest not shared by any other municipality. This line of reasoning holds true even with the licensing of national infrastructures like a power-generation facility or an oil refinery. So much so for the transport of fuel (or any hazardous substance for that matter) by vehicles, for the grounds used for storing the fuel, and for its loading on tankers, are stationary. But pipe-lines differ from other businesses in this respect -- one cannot point any single locus in which this activity takes place and in which the risks inherent to it are exclusively realised. Rather, the risk is present wherever the pipe-line passes, which ought to make it the concern of a regional or even a national authority. Such an authority is the Superintendent acting under the Hazardous Substances Law 1993 who is charged with permitting the use of hazardous substances and with setting conditions in such permits to mitigate the impacts of an activity on the environment and on safety. Applying the principle of proportionality here means that requiring one to procure a Business License from every municipality through which a pipe-line passes is an inferior construction of the law to a requirement to procure one Poisons Permit, while serving the same ends.