What Does Jewish Law Say About the Proposed Phosphate Quarry Near Arad?

In the midst of all the headlines about corruption, security issues and President Trump, there is an important topic which has been overlooked. On Thursday, February 8, 2018, hundreds of Haredim, secular Jews and Bedouin demonstrated at the entrance to Arad together with Deputy Health Minister Litzman against the plan to dig a new phosphate mine at Sdeh Brir near Arad. Despite all of the opposition to the plan – see below – the plan was recently approved by the National Planning and Building Commission. Indeed, Prime Minister Netanyahu in his capacity as Minister of Health has submitted an appeal against the decision.

What are the facts? The Rotem Amfert company wants to open a new phosphate quarry at Sdeh Brir near Arad. It is 3.5 km. southwest of Arad (population 27,000), right next to the 2,500 Bedouin of El Fura, and 3km. from the Bedouin town of Kseifah (population 10,000). Sdeh Brir contains 65 million tons of phosphate, which is enough to be mined for 35 years. In 2004, 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. On May 22, 2005, the Arad City Council decided unanimously to oppose the quarry. Even so, in 2007 the Rotem Amfert Company renewed its request to open the quarry, which was approved a few weeks ago.

Many of the residents of Arad object to this quarry for the following reasons:

  1. According to an official letter of Hadassah Aden, District Engineer from February 26, 2008, quoting from a health impact study of Dr. Micha Bar-Hana and Dr. Yonatan Dubnov, public health experts, exposure to dust and radon will lead to an increase of 4.25% in the general mortality rate in Arad, which means seven more people will die every year. An unknown number of people will also contract lung cancer as a result of exposure to radon gas. It is clear that the effect will be even greater on the Bedouin who live in El Fura and Kseifa.
  2. They do not trust the Ministry of Environmental Protection to have the power to stop the Rotem Amfert Co., if need be, in light of failure to do so in similar cases around the country.
  3. Arad has a reputation for clean air. This open quarry will ruin the air and destroy Arad’s tourism industry for generations.
  4. If this quarry is opened, 2,500 Bedouin will need to be expelled from El Fura.
  5. This quarry is not necessary. The area of Mt. Nishfeh in the Arava, which is far from any city, has 320 million tons of phosphates according to a report of the Geological Institute. It might cost more to mine, but that pales in comparison to opening a quarry near Arad, which will kill people, cause cancer, destroy Arad as a center of tourism and expel 2,500 people from their homes. In any case, Rotem Amfert would not lose money since the break-even price for phosphates is $40 per ton while the current price is $80 per ton.

What does Jewish law have to say about this issue?

The Tosefta, edited in Israel 1,800 years ago, rules (Bava Batra 1:10, ed. Lieberman, p. 131) that before the fact, “large furnaces must be built at least 50 amot (or 25 meters) from the city”. This law was codified by Rabbeinu Asher in 14th century Spain (Bava Batra, Chapter 2, parag. 25), by his son Rabbeinu Ya’akov ben Asher in the Tur (Hoshen Mishpat 155) and in the Shulhan Arukh in the 16th century (Hoshen Mishpat 155:23). Indeed, there was an ancient takkanah [rabbinic enactment] not to build furnaces in Jerusalem in the Second Temple Period (Bava Kamma 82b). The Talmud explains (ibid.) “because of kutra [smoke]”. Rabbi Reuven Bulka explained 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 before the fact because it pollutes the air.

Such a quarry is also forbidden before the fact according to the halakhic principle of “geirey diley [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). In one of the laws on this subject, Maimonides rules (ibid. 11:1, which was copied verbatim by the Shulhan Arukh in Hoshen Mishpat 155:34): “A person who made a threshing floor on his own property or a latrine or a type of labor which 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], he [=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 will pollute three towns with dangerous, life-threatening air pollution. As the authors of the Tosafot said (Bava Kamma 23a s.v. u’l’hayeiv): “and 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 ḥazakah for damages. Rav Mari said: The reference is to smoke. Rav Zvid said: The reference is to the bad smell from latrines.” Ḥazakah means the acquisition of a right by a person causing the damage to continue causing that damage in the future, because no-one has protested. This Talmudic passage says that if Reuven produced smoke pollution or a bad smell for three years and Shimon did not protest, there is still no ḥazakah 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 (d.1237; ed. Freimann, 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 ḥazakah to run my dye-shop]. Rabbi Abraham ruled: “About smoke and the like, the rabbis said that there is no hazakah 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 Prime Minister Netanyahu, Deputy Health Minister Litzman and other Israeli leaders will succeed in stopping this dangerous and unnecessary project.

Rabbi Prof. David Golinkin is the President of The Schechter Institutes, Inc. in Jerusalem. The views expressed here are his own.

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