Pollution Law

Climate change research shows that our every day use of fossil fuel energy may already be altering the weather in ways that are harming millions worldwide. These effects are projected to accelerate dramatically over the coming decades. Droughts and flooding are set to increase, worldwide water shortages will become critical, and famine will become more widespread.1

What are the ethical implications of these linkages between burning fuel in one part of the world and people suffering in another part?

Judaism has developed a sophisticated and detailed body of law that is acutely relevant to this question. Hilkhot Shekhenim2 explores the diverse ways in which neighbours damage one another through their domestic and economic activities and the redress that is available in each case.

Of course, these laws were developed to deal with conflicts between neighbours separated by a garden fence. The rabbis did not imagine our situation in which coal-fired power stations in Michigan may contribute to drought in Mali. Today we can cause damage to “neighbours” whom we will never meet.

The genius of halakhah has been its capacity to apply the wisdom of ancient principles to ever-new situations. Here we will briefly set out a few of the key sources in Jewish pollution law, and point to strategies for applying them to the new and urgent issue of global climate change. We have two purposes in doing this. First, we hope that poskim, qualified judges of Jewish Law will take up the challenge of issuing legal rulings on this subject. Second, we hope that those for whom halakhahis a source of binding norms will be energised in their activism by a sketch of what global warming halakhah might look like.

Hilkhot Shekhenim balances the legitimate rights of people to do what they want with and on their own property against the rights of their neighbours not to be seriously damaged or inconvenienced by those activities.3

There are obviously some damaging actions where everyone will agree that a propert owners rights to commit them must be curtailed. The Talmud calls this class of actions giri dilei literally “his arrows.”4 As Maimonides explains the metaphor, “it would be like him standing in his own property and shooting arrows into his neighbour’s domain,”5 which is clearly unacceptable! Among the activities that the Talmud places in this class is large-scale grinding that causes the neighbour’s house to vibrate.6

An in-depth exploration of global-warming halakhah would need to consider whether burning (excessive?) amounts of fossil fuels counts as“giri dilei,” direct, unacceptable damage that must be curtailed.7

Another crucial and relevant principle of Jewish pollution law is that there are certain kinds of damage for which a presumptive right to commit them (hazakah) can never be established.

If your neighbour lets you commit various minor types of damage for three years without complaining, then you may assume that he is not bothered by your actions.8 However, the Talmud and commentaries define a list of activities that you must always assume are intolerable to your neighbour.9 However long he appears to put up with them, his silence can never be interpreted as assent to your continuing to damage him. Among the damages in this category is pollution caused by smoke. There is some argument in the commentators about whether the smoke needs to be of large quantity and/or of constant duration.10 Greenhouse gases that cause climate change would appear to meet both criteria.

Why does smoke damage fall into this category? According to the great medieval authority, Rabbenu Tam, it is because the victim can always believably claim, “I thought that I could put up with it, but now I find that I can’t.11 Another major commentator, Nachmanides distinguishes between damage to a person’s property and damage to physical wellbeing. According to Nachmanides, there can never be a presumptive right to damage someone else’s body or health, for example by emitting large quantities of smoke into his property.12

Can these sources be extrapolated to damage caused on a global scale and through complex mechanisms of causation by greenhouse gas emissions? A number of twentieth century responsa on the issue of cigarette smoking suggest principles for doing so.

Rabbi Eliezer Waldenberg, makes the important argument that however long your neighbours may have put up with your cigarette smoke, they have every right to cease tolerating it in the light of new scientific research that proves smoking’s harmfulness. (He bases this on Rabbenu Tam’s position quoted above.) 13 The analogy with the mounting scientific evidence on climate change is clear.

Rabbi Moshe Feinstein, probably the greatest 20th century halakhist takes what seems to me to be a major step towards translating the laws of damages between neighbours into an industrial context. He was asked whether a student might smoke in the study hall of a yeshiva. R. Feinstein replied that this is forbidden by halakhah as it potentially damages the health of other students.14 Then he adds the following:

“And even though one person smoking in a large room such as aBeit Midrash would not by himself cause damage, nevertheless, since each smoker knows that many other people are smoking, he knows thathis smoke is causing damage.”

R. Feinstein here disallows the argument of each individual smoker’s relative insignificance in the big picture. Since each smokerknows that he is a small part of a larger phenomenon that cumulatively is inflicting serious harm on others, he must take responsibility for hisrole in contributing to that damage.

It seems to me that there is a quantitative leap involved in transferring this principle from smoking in a large room to climate change, but not a qualitative one. How many times have we heard (and made) the argument that there’s no point in my driving a smaller car/flying less/installing energy-efficient light bulbs, because I am only a tiny, insignificant part of a massive problem?

Applying R. Feinstein’s logic we would answer: that doesn’t matter. Once we know beyond reasonable doubt that our actions are part of a mass phenomenon that is causing immense harm, it becomes our moral responsibility to change our actions so that we stop being part of the problem.15

1 See summary of IPCC 2007 athttp://www.ucsusa.org/global_warming/science/ipcc-highlights2.html.
2 See Shulkhan Arukh, Hoshen Mishpat 153-6, and commentaries.
3 The outer limits of the rights of property holders are championed in the Mishnah by Rabbi Yossi. See Bava Batra, 25b.
4 Bava Batra, 22b-23a, 25b-26a.
5 Maimonides, Hilkhot Shekheinim, 10:5 The medieval commentators discuss the conditions under which an action is classed as “giri dilei;” whether it’s effects have to be direct or immediate or both.
6 Bava Batra, 25b.
7 The medieval commentators further distinguish between the categories of giri dilei and grama d’girei, where the mechanism of damage is somewhat indirect. A full analysis would consider which of these categories best fits the effects of greenhouse gas emissions on climate change.
8 Insert.
9 Maimonides enumerates the following damages in this category; smoke, the smell of outdoor toilets, dust, vibrating ground, intrusion on privacy (hezek re’iyah) and constant traffic of people caused by a shop in a residential courtyard. Hilkhot Shekeinim, 11, 4-5.
10 See, for example, Tosafot s.v. B’Kutra, Bava Batra, 23b arguing that smoke caused by an oven or furnace falls into this unacceptable category..
11 Quoted in Tosafot s.v. Ein Hazakah l’Nezikin Bava Batra 23a.
12 Hiddushei HaRamban, Bava Batra, 59a. Nachmanides’ position here appears to be related to the prohibition on voluntarily undergoing personal injury.
13 Tzitz Eliezer, 15:39. In this responsum R. Waldenberg displays striking sensitivity to the scientific research underlying his decision. He writes that he is “shocked and astonished” by the latest medical findings and mentions in passing that he is in the middle of reading the US Surgeon General’s report.
14 Iggerot Moshe, Hoshen Mishpat, 2:18.

15 I benefited from learning the sources quoted with my chavruta Rabbi Josh Weisberg, and from a written discussion by Rabbi Dov Berkowitz.