Q. You recently wrote that pollution is not an inherent case of "damage" but a kind of nuisance which the community must weigh against cost of control. What about global dangers like global warming, where no meaningful community control exists?
A. I received many thoughtful replies to the pollution column, which was intentionally meant to open the topic for further discussion. The most common question was the one above. If one neighbor engages in an activity which causes a nuisance to others in the neighborhood, then the entire neighborhood can establish mutually acceptable binding guidelines. This approach gives a satisfactory solution for many kinds of pollution. Municipal councils may often function reasonably well, and the same goes for state and national governments.
However, even in some localities there is no meaningful collective authority, and certainly it is extremely difficult to get whole nations to limit their sovereignty even in the face of very frightening environmental threats like global warming.
The question then is, what does the Torah say about pollution when there is no effective communal authority to regulate it?
Logically, we should break this question down further. First, what guidelines exist for acting in the absence of authority? Second, what does our tradition teach us about how to create effective authority to obtain a truly consensual solution?
This column will deal with the first question. Next week we will discuss the second.
The Mishna presents the following disagreement: "A tree must be distanced at least 25 cubits from a well. . . If the well preceded the tree, the tree is cut down and he [the owner of the well] pays., but if the tree was there first it is not cut down. If there is a doubt which was first it is not cut down. Rabbi Yosi says, even if the well preceded the tree it is not cut down, since this one dug in his own property and this one planted in his own property." (1) The Talmud explains that according to Rabbi Yosi, it is in general the responsibility of the injured party to take care, not that of the injuring party. (2) Of course this is not true in ordinary tort law where damage is strictly forbidden. This is his opinion only in the context of "nuisance" law, where the loss to one neighbor from refraining from planting may very well be commensurate with the loss to another from refraining from digging a well. In this case there is no justification for the law to take sides.
However, the Talmud concludes that even Rabbi Yosi concedes that it is forbidden to engage in activities which cause some kind of immediate or direct damage to the neighbors. The example is someone who has a factory for making sesame oil where the pounding shakes the ground and undermines an adjacent home. This kind of damage is called giri dilei. This is usually translated "his arrows"; some authorities translate it as "his causality". (1)
The distinction between immediate or direct damage and delayed or indirect damage is a subtle one, and much judgment and experience is needed in a leader or judge to determine exactly where it is appropriate to draw the line. The line is clearly drawn when one neighbor's actions make it impossible for other neighbors to engage in normal everyday activities. This is the case with the oil factory. By contrast, when the "damager" is himself engaging in a normal activity but this makes it difficult for the "victim" to engage in something unusual, then this would not be considered a case of direct damage. The Talmud gives the examples of beekeepers who find that the honey is worse when the bees feed from certain common flowers. Growing such flowers does not thus become defined as a damage; rather, the beekeepers have to figure out how to keep their bees from encountering the problematic plants. (2)
I think that we have to acknowledge that most kinds of pollution, including those contributing to warming, don't fall into the category of giri dilei, something which causes direct and immediate damage which keeps others from engaging in normal activities. Even if the ultimate result of these activities is truly catastrophic, the only way to deal with them is through collective action. Otherwise there is no way of establishing meaningful guidelines. Every time we breathe we contribute to global warming, through the heat generated by our metabolism and the carbon dioxide created by our respiration. We don't want people to stop breathing, yet we do seek a way to limit the much greater and also much less vital atmospheric heating caused by cars and industry.
Long-term environmental threats, as important as they may be, cannot be effectively battled by individuals; it is necessary to create a neighborhood, a context in which very large groups of people, perhaps the entire industrialized and industrializing world, can work together to limit damage. We will examine insights into this process in next week's column.
iSOURCE: (1) Babylonian Talmud tractate Bava Batra page 25b. (2) Ibid page 18b
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