In several earlier publications, the Legal Agenda advocated for the people of regions impacted by the illegal system of granting crushers and quarries consecutive grace periods to continue operating in total disregard of the laws governing the sector, along with the environment. We dedicated a full issue to mountain blasting in Koura District and the suffering it inflicts on the residents and environment. We also filed several cases representing environmentalist organizations, including organizations from the region (Earth Will), and the Federation of Koura Municipalities. Here, we are publishing a commentary on two rulings issued in these cases in 2022, which nullified administrative decisions to grant grace periods. Despite the clarity of the rulings, the government has continued to grant grace periods knowing full well that they are illegal, turning the crime of the quarries into one that will come back to haunt it when it eventually comes to trial. (Editor)

 

On 19 January 2022, the State Council issued two rulings nullifying administrative decisions authorizing cement companies to continue operating quarries. The first came in the case that the Federation of Koura Municipalities filed in cooperation with the Legal Agenda against the Hariri government’s decision on 10 August 2019 to grant a three-month grace period for all quarries to continue operating. The second came in the case that the environmentalist organization Earth Will filed, also in cooperation with the Legal Agenda, against the decision by former minister of interior Mohammed Fahmi to grant a grace period for cement companies’ quarries to continue operating on 19 March 2021. The rulings were issued by the Second Chamber, comprising Mireille Afif Amatoury as president and Yusuf al-Jamil, based on reports drafted by rapporteur auxiliary judges Patricia Faris and Rayyan Romani.[1]

 

Before detailing the gains arising from these two rulings, we must first review this issue and the way it previously played out before the State Council.

A Brief Review of the Crushers Situation: “Administrative Grace Periods” to Commit Environmental Crimes

 

The law-dodging in the crushers issue dates back to the post-Civil War period, which witnessed reconstruction plans that peaked from 1994 to 2000. Quarries and crushers spread across all Lebanese territory in the total absence of any environmental vision or legislative framework to regulate the sector. Although the uncontrolled proliferation and unregulated operation of crushers increased environmental and health-related disasters, the governments at the time remained incapable of putting a stop to it. Rafic Hariri’s first government decided to shut down the crushers in June 1994 and issued Decree 5616 – the first to regulate the sector – on 6 September 1994.[2] After this decrees’ nullification, the government caved to market needs and initiated the practice of granting grace periods for crusher owners to continue operating and,in reality, destroying the mountains with no regard for the environment. Because of their continuous repetition, these periods thereafter became known as “administrative grace periods” [muhal idariyya]. While Decree no. 8803 of 2002 placed stringent conditions on the operation of crushers, most importantly that they be located far from the coast and populated areas and that they be subject to prior licensing that limits their environmental harm, it remained unapplied because it blatantly conflicted with the interests of the cement monopoly,[3] which is based on operating quarries in regions close to the coast (especially Koura). Successive governments ignored the quarries decree and continued with the previous approach of granting “administrative grace periods” to ensure that the quarries and crushers could continuously operate.

 

In 2019, Saad Hariri’s government, represented by Minister of Interior Raya El Hassan, placed the crushers issue at the forefront of the reforms it sought to implement. The minister made decisions and statements expressing a preliminary intent to enforce the decree regulating quarries and crushers. She acknowledged the grave environmental damage they had caused, condemned the illegality of the decisions that her predecessor – Nohad Machnouk – had issued on the sector’s regulation, and clarified that the quarries now numbered 150. It emerged that Machnouk had instructed the Internal Security Forces not to take any action against these crushers in a practice that the Legal Agenda described as one of the biggest cases of corruption. Machnouk’s actions were confirmed by Minister of Environment Fady Jreissati, who stressed the government’s determination to put a stop to the illegality.[4] In fact, beginning on 1 March 2019, the quarries and crushers were closed as the Ministry of Interior had instructed security force detachments to shut them down.

 

However, contrary to all these affirmations and expectations, less than 20 days later the Council of Ministers – probably under pressure from the lobbies themselves and especially the cement companies – granted crusher owners an administrative grace period of 90 days to continue operating. The Hariri government thereby returned to a grave practice that breaches the most basic of laws. It then granted a second grace period of one month in August 2019 (the decision challenged by the Federation of Koura Municipalities and addressed by one of the rulings). The Hariri government justified these decisions on the basis that it needed to conduct a study and develop a new decree, and that the market must be able to continue in the meantime. However, the forces constituting the government could not form a consensus on the regions where quarries may be operated, so it failed to adopt the promised new decree. Hassan Diab’s government (2020-2021), under the same pressure, also granted administrative grace periods, albeit only to quarries operated by cement companies. The minister of interior justified this move using the need for reconstruction following the Beirut port blast. The last decision issued by this government was the interior minister’s decision on 19 March 2021, which was challenged by Earth Will and nullified one of the State Council’s aforementioned rulings. On 15 February 2022, just weeks after forming, Najib Mikati’s government issued a decision to grant new administrative grace periods allowing cement companies (Cimenterie Nationale, Al Sabeh, Holcim, SIBLINE, and Societe Des Chaux & Platres Du Liban) to extract the raw materials needed to manufacture cement for as many as 12 months while the ministries of environment and industry prepare a “modern” draft to regulate the extractive industries.

 

Despite the promises to respect the environment and even ministers’ criticism of other ministers for not complying with the decree regulating quarries and crushers, all governments fell at the first hurdle. Hariri’s government, which began by condemning Machnouk for illegally authorizing quarries, ended up doing the same but in a collective fashion.

 

There are two obvious possibilities. One is that respecting the current regulation on quarries or regulating them appropriately is impossible, which is unlikely. The other, more likely possibility – to which we will return later – is that the political regime has a vested interest in keeping the crushers sector free of any legal regulation.

 

Three Gains from the State Council Rulings

 

Based on the above, we discern three major gains from the two rulings:

 

Gain 1: Environmentalist Organizations Can Challenge Decisions Affecting Them

 

This gain was achieved, in particular, in the case filed by Earth Will. The association’s standing to file the case was not specific to it but one arising from its chosen objectives of protecting the environment. Clearly, the success of the case would require recognition of environmentalist organizations’ capacity to challenge such decisions and hence winning what the Legal Agenda has repeatedly labeled the battle for the capacity to challenge administrative decisions in order to ensure their legality.[5] This battle began after the State Council dismissed several cases filed by environmentalist organizations to conserve seafront property and limit marine pollution. The State Council held that these organizations have no direct or specific standing to sue the state and that admitting their claims would enable anyone to challenge administrative decisions without any direct or distinct standing.[6] Thus, under the pretext of avoiding “populist” cases, the State Council had in practice inoculated many administrative decisions (seriously suspected to be illegal or possibly corrupt), sparing them from any judicial review and thereby stripping the administrative judiciary of one of its fundamental roles, namely protecting legality and public resources (including the environment). The latest decision in this regard may be the dismissal of the challenge to the decree to occupy approximately 70,000 m2 of seafront property in Naameh, notwithstanding Judge Lama Yaghi’s elaborate dissenting opinion holding that the capacity of environmentalist organizations in such cases must be accepted so that the State Council can fulfill its responsibility to protect seafront property.[7]

 

Some of these decisions prevented the state from recovering seafront properties estimated to be worth tens of millions of dollars. Notably, the Environment Law explicitly tasks every citizen with ensuring that the environment is protected and hence with defending the right to a safe and stable environment against any encroachment, including by state apparatuses (Article 3 of Law no. 444 of 2002).

 

The battle for the capacity to sue also emerged in parliamentary deliberations in 2020 after some MPs discovered the difficulty of challenging the decree to naturalize hundreds of people.[8] The Administration and Justice Committee then produced a bill granting any five MPs the capacity to challenge certain types of administrative decisions concerning naturalization or infringing on public property and  funds, or the environment. The General Assembly, however, refused to go forward with it. Deputy Speaker Elie Ferzli, who is considered one of the most important spokespeople of the ruling political regime, delivered a particularly notable intervention concerning this bill during one legislative session in 2020. According to the Legal Agenda’s Parliamentary Observatory, he said that MPs “overplay the leanings of people towards expanding the jurisdiction of a judiciary while opposing any interference in its affairs”. He continued, “The current judiciary needs to be completely changed. Either we change it completely or we keep what we have without increasing its powers. But it would be wrong for us to enact laws that allow us to rejoice for a few minutes in front of a crowd and then don’t get applied”. He then announced his opposition to exposing the authority to any accountability under the current judiciary: “Can we open the way for current judges to file reports about [supposed] criminals caught red-handed when one of us could be among them?” This intervention clearly illustrates the political dimension of the battle for capacity and, most importantly, the ruling authority’s awareness of these dimensions and apprehension toward any change in this regard.

 

Gain 2: “Administrative Grace Periods” Are a Legal Cover for Crime

 

The second gain is the establishment of the illegality of granting “administrative grace periods” for operating quarries. The rulings responded to two arguments raised by the Cases Authority (which represents the state in court), namely that there is a “convention of regulating the quarries sector in this manner” and there is an exceptional situation that justifies deviating from the decree’s provisions. These arguments are contradictory. The former justifies the grace periods based on a permanent, binding custom while the latter justifies them based on temporary conditions necessitating exceptional measures. Nevertheless, the State Council went to pains to refute them.

 

From one angle, the State Council deemed that “administrative customs cannot be invoked when there are explicit regulations prohibiting administrative grace periods for quarries and crushers”. While the Cases Authority argued that petrol stations receive administrative grace periods, the court responded that, “There is a specific text governing [quarries’] activity that differs from the text governing petrol stations, so the legal situation of these two categories of places cannot be compared”.

 

Moreover, the State Council emphasized that Decree no. 8803 of 2002 stipulates criminal penalties for quarry and crusher operators who operate without legal authorization, which means this is a crime punishable by law. It thereby clearly and assuredly suggested that by granting these grace periods, the government not only establishes an illegal practice but also legitimizes an environmental crime. The court held that granting “administrative grace periods to quarries and crushers operating in contravention of Decree no. 8803 of 2002” constitutes an “indirect means of providing legal cover that violates the regulations in effect, supplants the general principle of legal authorization, and allows businesses that have not obtained legal authorization or do not meet the legal requirements to nevertheless continue operating [quarries]”.

 

As for the argument about the doctrine of exceptional circumstances (namely the domestic market’s need for construction materials, especially cement, and the need to combat the monopolization of cement and high prices under the current economic conditions), the court addressed the conditions for invoking such circumstances so that they cannot be invoked again. The court recalled that this doctrine applies only when the administration is in an exceptional situation that precludes compliance with the principle of legality and demands urgent measures (e.g. a war or natural disaster). Moreover, these measures should be constrained to the exigencies of this situation and not expanded spatially or temporally. The court then eloquently raised a third requirement, namely that “the objective for which the rules governing competence and the principle of legality are sacrificed be important enough to justify this sacrifice, such as protecting public security, restoring public order, or the continuity of fundamental public services on a national or local level”. This third factor comprising the exceptional circumstances doctrine is especially important in the crushers issue as it reminds us that the government cannot invoke the doctrine to achieve a goal less important than the interests being sacrificed.

 

Finally, while the administration argued that the case should be dismissed as moot because the administrative grace period granted had ended, the State Council held that the plaintiff still had an interest in nullifying an illegal administrative decision because it could then seek compensation for the damages stemming from the administration’s unlawful actions.

 

Gain 3: A Systematic Crime by the Ruling Regime

 

The third gain from the State Council’s ruling is that it not only nullified the administrative decision for violating legal provisions but also described it in a manner that reflects its gravity. This is evident from the aforementioned clause, which stated that “successive governments have employed the same policy on the quarries and crushers sector, repeatedly granting administrative grace periods to quarries and crushers operating in contravention of Decree no. 8803 of 2002”. The practice was deemed to constitute an “indirect means of providing legal cover that violates the regulations in effect, supplants the general principle of legal authorization, and allows businesses that have not obtained legal authorization or do not meet the legal requirements to nevertheless continue operating [quarries]”. This clause is extremely important for several reasons:

 

Firstly, with it, the court seemed to be announcing that it was targeting not only the challenged decision but also a long-standing practice repeatedly adopted by successive governments.

 

Secondly, the court concluded from the repetition of these decisions that they are a product not of circumstances, chance, or an unintentional error but of a desire to provide illegitimate cover for businesses that do not meet the legal requirements. It thereby accused the government of colluding with cement companies to provide legal cover enabling them to operate quarries close to their plants in areas where quarries are prohibited. In practice, it accused them of sacrificing legality and public interest for the interests of cement companies. This accusation is especially serious because operating quarries in contravention of legal provisions is not just an administrative infraction but also a criminal offense. Hence, it means that successive governments have encouraged citizens to commit crimes.

 

Thirdly, and perhaps most momentously, the court went as far as to speak of an “alternate” system of legality whereby these administrative grace periods become the sole means available for operating quarries while the legal system stipulated in the decree ceases to have any effect. This was already confirmed by Minister of Environment Fady Jreissati, who said in 2019 that except for one quarry whose location he did not specify, all quarries were operating without legal authorization. Thus, we depart entirely from a system in which rights and controls are defined by general texts applied to everyone and enter an alternate system in which successive governments (and the political forces they represent) make whatever decisions they please with no controls or need for explanation. This alternate system gives the ruling political forces broad latitude to control the entire sector and, in practice, impose a monopolistic structure that it can control and exploit because it holds all the keys. This the Legal Agenda addressed at the beginning of its special issue on monopolies.[9] It argued that the war and the means of control and reaping spoils that emerged during and following it produced new forms of monopoly, and many of these monopolies subsisted on lawlessness and allowed vast sectors to be controlled by the most powerful without any controls or restraints.

 

This article is an edited translation from Arabic.

 

[1] “Iktisab Sifat al-Difa’ ‘an al-Jibal?”, Nizar Saghieh, The Legal Agenda, 20 May 2022.

[2] “Al-Tahasus fi al-Hasa”, Joelle Boutros and Razi Ayoub, The Legal Agenda – Lebanon, 24 January 2019, p. 58.

[3] “La Sawt Ya’lu ‘ala Sawt Tafjir al-Jibal: Ihtikar al-Ismant wa-Fasaduhu”, Nizar Sagheih, The Legal Agenda, 12 April 2021.

[4] “Taghtiya Sahafiyya, Jarisati fi Liqa’ ma’a al-Muhandisin li-Sharh wa-Munaqashat Khuttat al-Maqali’ wa-l-Kassarat”, website of the Order of Engineers and Architects in Beirut, 16 April 2019.

[5] “Tastamirru Ma’rikat al-Sifa wa-l-Maslaha Amama Majlis Shura al-Dawla al-Lubnaniyy: Makhawif min Tajrid al-Dawla min Akhir al-Mudafi’in ‘anha”, The Legal Agenda, 27 June 2020.

[6] “Al-Sifa wa-l-Maslaha fi al-Qada’ al-Idariyy al-Lubnaniyy”, Francois Blanc, The Legal Agenda – Lebanon, 27 June 2020, p. 65.

[7] “Shura al-Dawla Yatakhalla ‘an Dawrihi fi Himayat al-Amlak al-Bahriyya: Ra’y Mukhalif Wa’id fi Qadiyyat al-Na’ima”, Nizar Saghieh and Aya Farhat, The Legal Agenda, 14 February 2022.

[8] “Jalsa Tashri’iyya li-Isti’adat Haybat al-Majlis fi Muwajahat al-Thawra.. al-Farzali: ‘al-Israf fi Tabri’at al-Dhat Isqat Laha, wa-Yu’kalu al-Thawr al-Abyad Yawma Yu’kalu al-Aswad”, Maher El Khechen, The Legal Agenda, 27 April 2020.

[9] The Legal Agenda – Lebanon, is. 68: Ihtikarat al-Muhasasa al-Shamila.