The below article was first published in Jpost Magazine
Tu Bishvat is mentioned in the Mishna as Rosh Hashanah L’Ilan, the New Year of the Tree. It gained in popularity when the 16th-century Kabbalists in Safed began to hold a Seder Tu Bishvat and eat up to 30 types of fruits, while the Zionists in the 20th century began to plant trees on Tu Bishvat.
In more recent years, it has become a day when Jews throughout the world learn about the environment and sustainability.
Therefore, as we approach Tu Bishvat, it is worth informing the Israeli public about a major ongoing environmental issue that has slipped under the radar, and what Jewish law has to say on the subject.
What are the facts?
Since 2004, the Rotem Amfert Negev company has wanted to open a phosphate quarry at Sde Brir near Arad. It is 3.5 km. Southwest of Arad (population 27,000), right next to the 2,500 Bedouin of Al-Fura’a, and 3 km. From the Bedouin town of Kuseifa (population 10,000). Sde Brir contains 65 million tons of phosphate, which is enough to be mined for 35 years.
In that same year, 5,800 residents of Arad signed a petition against this quarry. The mayor of Arad then commissioned a telephone poll of Arad, which determined that 88% of the residents opposed the quarry. In May 2005, the Arad City Council decided unanimously to oppose the quarry. Even so, in 2007 Rotem Amfert Negev renewed its request to open the quarry. Despite all of the opposition to the plan, it was approved by the housing cabinet in January 2018.
Most of the residents of Arad object to this quarry for the following reasons:
Finally, on February 8, 2018, an unusual demonstration took place at the entrance to Arad – 3,000 haredim, secular Jews and Bedouin demonstrated together with Deputy Health Minister Litzman against the plan to dig the mine. Indeed, Prime Minister Benjamin Netanyahu, in his capacity as health minister, has submitted an appeal against the decision.
What does the Jewish law have to say about this issue?
The Tosefta, edited in Israel 1,800 years ago, ruled (Bava Batra 1:10) that “large furnaces must be built at least 50 amot [25 meters] from the city.” This law was codified by Rabbeinu Asher in 14th-century Spain (Bava Batra, chap. 2, parag. 25); by his son Rabbeinu Ya’acov ben Asher in the Tur (Hoshen Mishpat 155) and by the Shulhan Aruch in the 16th century (Hoshen Mishpat 155:23). Indeed, there was an ancient rabbinic enactment not to build furnaces in Jerusalem in the Second Temple period (Bava Kamma 82b). The Talmud explained (ibid.), “because of kutra (smoke).” Rabbi Reuven Bulka interpreted this passage in modern terms: “This is because the pollutants which are emitted by furnaces harm the inhabitants of the city, who need to breathe fresh air.” Therefore, digging an open-air quarry in close proximity to 40,000 people is forbidden because it pollutes the air.
Such a quarry is also forbidden according to the halachic principle of “geirei dilei (his arrows).” In other words, it is forbidden for a person to stand in his domain and to shoot arrows elsewhere claiming that he did not intend to cause damage (Bava Batra 22b; Maimonides, Laws of Neighbors 10:5-6).
Maimonides ruled (ibid. 11:1, cf. Hoshen Mishpat 155:34): “A person who made a threshing floor on his own property or established a latrine or a type of labor that makes dust and dirt and the like, must distance the [source of pollution] so that the dirt or smell of the latrine or the dust should not reach another person, so that it should not harm him. Even if the wind [was responsible for bringing the dust or the smell in the direction of another person, the polluter] is required to distance [the source of pollution] so that they should not reach [other people] and cause damage…. For all these are like a person who damages by shooting his arrows.” If this was true for a private laborer in Talmudic times, how much the more so is it true for a phosphate quarry, which would pollute three towns with dangerous, life-threatening air pollution. As the Tosafists said (Bava Kamma 23a): “From this we can derive that a person should be more careful not to harm others than not to be harmed by others.”
Finally, what happens if Reuven built a furnace or other source of pollution near Shimon and Shimon did not protest – can Shimon protest a few years after the pollution began?
The classic reply is found in Bava Batra (23a): “Rav Nahman said in the name of Rabba bar Abuha: There is no ḥazaka for damages. Rav Mari said: The reference is to smoke. Rav Zvid said: The reference is to the bad smell from latrines.” “Ḥazaka” means the acquisition of a right by a person causing damage to continue causing that damage in the future, because no one has protested. This Talmudic passage said that if Reuven produced smoke pollution or a bad smell for three years and Shimon did not protest, there is still no ḥazaka, and Shimon can protest at any time.
A good example of the application of this law is found in the Responsa of Rabbi Abraham son of Maimonides (No 101). Reuven complained that Shimon was ruining his life because he had built a cloth-dyeing pit and built a fire and caused smoke in Reuven’s direction. Shimon replied: I bought the house and turned it into a dye shop 15 years before you bought your house, so I have a ḥazaka to run my dye shop. Rabbi Abraham ruled: “About smoke and the like, the rabbis said that there is no hazaka for these damages…. Reuven’s argument is therefore upheld and Shimon must do away with this damage.”
In conclusion, digging a huge phosphate quarry near three towns inhabited by 40,000 people is absolutely forbidden by Jewish law before the fact and can also be stopped after the fact. I hope and pray that Netanyahu, Litzman and other Israeli leaders will succeed in stopping this dangerous and unnecessary project.
David Golinkin is President of The Schechter Institutes, Inc. and President Emeritus of the Schechter Institute of Jewish Studies. For twenty years he served as Chair of the Va’ad Halakhah (Law Committee) of the Rabbinical Assembly which gives halakhic guidance to the Masorti Movement in Israel. He is the founder and director of the Institute of Applied Halakhah at Schechter and also directs the Center for Women in Jewish Law. Rabbi Professor Golinkin made aliyah in 1972, earning a BA in Jewish History and two teaching certificates from The Hebrew University in Jerusalem. He received an MA in Rabbinics and a PhD in Talmud from the Jewish Theological Seminary of America where he was also ordained as Rabbi. For a complete bio click here.