The National Infrastructure Law, 2023

21 September, 2023

In June 2023, the National Infrastructure Law of 2023 was published. The law introduces a series of new provisions and indirect amendments to existing legislation, all aimed at eliminating barriers to national infrastructure projects. The law categorizes infrastructure projects and assigns them priority based on the urgency of execution and significance to the economy. Additionally, the law provides general regulations regarding the delineation and transfer of infrastructure lines.

What is an “infrastructure project”? The law provides a comprehensive definition encompassing the various types of projects to which it applies. This includes airports, seaports, power stations, and more; facilities for waste treatment, water, electricity, gas, oil, communication, and others; as well as above-ground and underground infrastructure lines.

To determine which tools the law, along with its indirect amendments, grants to a particular infrastructure project, its classification must be taken into consideration—either as a “regular”, “essential”, or a “priority essential” infrastructure project.

Regular Infrastructure Project

This is defined as any project that meets the broad definition of infrastructure as detailed above. For all infrastructure projects, the law provides instruments designed to remove barriers, streamline, and expedite their planning, establishment, maintenance, and operation. For instance:

– **Infrastructure Coordination Procedures** – One of the main challenges in establishing a national infrastructure project is coordinating with other infrastructure owners and local authorities. To prioritize projects enumerated in the law over others, the law demands that every entity engaged in infrastructure coordination (the “authorized entity”) to publish a clear engagement procedure, with mandatory response times, a grievance mechanism, and appeals. Furthermore, the law prohibits the authorized entity from imposing conditions or restrictions on granting its approval to a project unless they are directly relevant to the required consent.

– **Implicit Consent by Silence** – Since almost all infrastructure projects are constructed on state-owned land, the consent of the Israel Land Authority (“ILA”) is needed for their establishment. This consent often acts as a significant barrier to the progress of these projects, as it is typically contingent upon striking a deal and its subsequent approval, followed by lengthy internal procedures. Therefore, the law stipulates that the ILA must grant consent within 45 days. After this period, if no response is provided, the ILA is deemed to have granted its consent to the project. This provision is relevant solely for the establishment of infrastructure projects, not for their maintenance or operation.

– **Streamlining Planning and Construction Procedures** – The law indirectly amends the Planning and Construction Law of 1965, both in aspects of construction licensing (execution) and planning. For example, the law dictates an automatic government approval of national infrastructure plans, thus saving considerable time in instances where bureaucratic or political reasons (e.g., a transition government) prevent the government discussing of certain matters. The law also exempts national infrastructure projects from the need for the Coastal Environment Protection Committee’s approval, establishing a unified procedure within the National Infrastructure Committee to evaluate the potential impacts on coastal lands. Furthermore, the law sets a shortened process for making changes to national infrastructure plans, ensuring that not every alteration requires comprehensive planning procedures. Regarding licensing, the law expands on the erecting of permitted structures, without a building permit, and enables procedures for easements which eliminate the need to amend approved plans, thus optimizing and shortening execution procedures.

– **Easements from the Clean Air Law** – The indirect amendment to the law allows, under certain circumstances, easements from pollutant emission standards concerning national infrastructure projects.

Essential Infrastructure Project

An “Essential Infrastructure Project” is, in fact, an infrastructure project that the Minister of Finance has granted as a priority over other infrastructure projects. To fit this definition, several conditions must be met:

1. The project must be published in the records as part of the list of essential infrastructure projects.

2.  The project must be included in the list of prioritized projects as an addition to the law.

3. Where necessary, it must meet the conditions specified in the addition (e.g., regarding supply, size of the facility, etc.).

In addition to all the tools available for a regular infrastructure project, the law allows an essential infrastructure project several additional tools. Their main features are outlined as follows:

– **Infrastructure Coordination**: The law dictates that an authorized entity will prioritize handling requests related to an essential infrastructure project over other projects (except for a preferred project as detailed below).

– **Objections Committee – Business Licensing**: The law establishes a special national-level committee, to address objections to decisions of local authorities regarding licenses for essential infrastructure projects. This enables the law to counter decisions influenced by NIMBY concerns and expedite the implementation of essential projects.

– **National Licensing Committee**: Another tool intended to counter decisions of local licensing authorities, which may delay the establishment and execution of essential infrastructure projects due to NIMBY concerns, by allowing, under certain circumstances where handling of permit requests is prolonged, to receive the permit from the national licensing authority.

Preferred Essential Infrastructure Project

A “Preferred Essential Infrastructure Project” is a project included in the list of essential infrastructure projects, and the government has decided to give it special priority due to its national importance, urgency of its establishment, and its economic benefits. This is a list of only 10 projects, which is periodically updated by government decisions.

In addition to all the tools for regular and essential projects, a preferred essential project gets particularly unique and exceptional tools to overcome potential obstacles in its establishment and operation. Mainly:

– **Infrastructure Coordination**: An authorized entity will give priority to handling a request related to a preferred essential infrastructure project over other infrastructure projects. Additionally, a dedicated central entity should be appointed to handle requests regarding preferred projects.

– **Limitations on Administrative Orders**: The law restricts the power to issue administrative orders, regarding planning and construction, prevention of harm, maintenance of cleanliness, and business licensing for a preferred essential project. This prioritizes the project’s advancement over environmental concerns. However, it is essential to note that preventing the authority to issue orders does not detract from the existing criminal and tort liabilities under these laws, rather it prevents halting or delaying the establishment or operation of the infrastructure project.

– **Noise Prevention**: allows setting lenient criteria for the permissible noise threshold from preferred projects.

– **Antiquities**: Setting shorter handling times and automatically approving requests concerning a preferred project.

– **Expropriations**: Automatic authorization for land expropriation for the executing entity of a preferred essential infrastructure project, without needing approval from the minister. However, before taking possession, dependent on the advisory committee’s approval.

In conclusion, the National Infrastructure Law provides many comprehensive instruments to overcome obstacles facing the advancement of infrastructure projects, especially those stemming from NIMBY considerations. Additionally, the law prioritizes certain types of infrastructure projects over various public interests, particularly the interest in protecting the environment from the negative impacts of these projects. Therefore, there is extensive public criticism of the law.

The question of whether these will indeed serve the most essential infrastructure projects and lead to their optimal establishment and operation for the public’s benefit largely depends on the discretion of the Minister of Finance and the government, as well as their authorized representatives enforcing the law’s provisions on the authorized entities.

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