Darrick T. Evensen
The word of G-d is a powerful thing. HaShem works through the scriptures in many ways – sometimes through a subtle whisper, the literary equivalent of the still, small voice Elijah heard on Horeb after the storm, the earthquake, and the fire. Other times the Torah smacks you right in the face, like a young shepherd’s stone between the eyes of a towering Philistine. Reading Deuteronomy, chapters 16 and 24, had the latter effect on me.
One way to make your point with even the most unreceptive audience is to state it over and over again. Twice in Deuteronomy, chapter 16, and twice again in Deuteronomy, chapter 24, we are exhorted to recall the Hebrews’ bondage in Egypt. This language immediately grabs your attention if you are at all familiar with the oppression of the Jewish people under the Pharaohs, and their journey to freedom with Moses. Why, you might ask, do we need to constantly recollect such somber and onerous times? Deuteronomy 16 explains that remembering the Hebrew slavery will help us understand how and why we worship G-d as we do. For example, Deuteronomy 16: 11-12 states,
“And rejoice before the Lord your G-d at the place he will choose as a dwelling for his Name – you, your sons and daughters, your menservants and maidservants, the Levites in your town, and the aliens, the fatherless and the widows living among you. Remember that you were slaves in Egypt and follow carefully these decrees.”
Through this passage, we recall that life can be much worse than it is for us today, and that it is our duty to follow the laws of G-d, who has redeemed us. Deuteronomy 24 uses the Hebrews’ oppression in Egypt to instruct us how to interact with each other. Listen to G-d’s word from Deuteronomy 24: 17-18:
“Do not deprive the alien or the fatherless of justice, or take the cloak of the widow as a pledge. Remember that you were slaves in Egypt and the Lord your G-d redeemed you from there. That is why I command you to do this.”
And now from Deuteronomy 24: 21-22:
“When you harvest the grapes in your vineyard, do not go over the vines again. Leave what remains for the alien, the fatherless, and the widow. Remember that you were slaves in Egypt. That is why I command you to do this.”
These passages make very clear why we must regularly recall the Hebrews’ arduous slavery in Egypt. We will be far less likely to oppress others if we remember that we too have suffered oppression. We must acknowledge that we could end up in someone else’s shoes. HaShem would have us treat others with the charity and justice due to any human being.
All this scripture and interpretation probably sounds pretty familiar – it is rather similar to the common adage of the “Golden Rule” – do unto others as you would have them do unto you. This stems directly from the commandments in Leviticus 19 to “love your neighbor as yourself”. This immensely important law has been reduced to the point of banality today, because it is uttered so frequently. Therefore, let me set this old law in a fresh context. What would it mean to remember that the Hebrews were slaves in Egypt when thinking about natural gas development via hydraulic fracturing, or fracking?
I want to consider this question from an individual and societal perspective. First, as individuals, we can view remembering the Hebrews’ slavery as a call to treat others justly and charitably. The great modern philosopher John Rawls has offered his theory of contractualism as a means for decision making on contentious political issues. In this approach, individuals are to operate under a veil of ignorance, that is, they should act as if they know they will be one of the persons affected by the outcomes of a given action, but they do not know which person they are. Decision makers are asked to identify an action and associated set of outcomes to which all affected parties could agree. The idea is that everyone would be treated equitably under this paradigm. Rawls’s contractualism, while considered influential philosophy today, is really just an embellishment of the admonition to remember the Hebrews’ bondage in Egypt.
What would it mean, then, to operate under the veil of ignorance when making decisions on fracking? We first need to know something about the potential outcomes that attend shale gas development. In terms of economics, some individuals will benefit substantially from leases, royalties, and jobs; many will not see these benefits. Everyone in communities where fracking occurs will experience a slight benefit from an increase in taxable income from the gas industry and ancillary businesses. Some persons may lose economically due to the crowding out of existing industries (such as tourism or farming), or from substantial increases in housing rental prices. In the areas of environmental, health, and community effects, everyone in regions where fracking occurs has the potential to experience degradation in air and water quality, soil erosion, reduced outdoor recreational opportunities, road damage, noise, light pollution, dust, and diminished aesthetics. For some people, community character will improve (for example, jobs could keep kids local, but I should note that most jobs are temporary). For others, community character and way of life will deteriorate (for example, the rural lifestyle will be lost and peace and quiet will be disrupted [again, temporarily]).
Some good and some bad will necessarily accrue to everyone exposed to fracking. Additionally, there is a certainty that substantial good will accrue to some people and substantial bad will be experienced by others. Finally, there is the possibility that a wider group of people could experience significant harm.
With this understanding of the effects of fracking, Jewish law and tradition can help us evaluate how we should act. Say, for example, that you had to decide whether or not to lease your land for gas development. Remembering that the Hebrews were slaves in Egypt reminds us to not treat the less fortunate poorly or to disregard them just because we can. The halakha – the collective body of religious laws – is replete with examples of how damages to neighbors are prohibited.
For example, the Talmudic text, the Bava Kamma, is one of three Talmudic texts that deals with Nezikin (or damages). It states that when damages are not caused directly by persons, but rather by inanimate objects – something the text calls “damages caused by a pit” – the party responsible for the damage is the person who “uncovered the pit”. The parallels to natural gas development are uncanny. The person responsible for air and water contamination from fracking, for the soil erosion, noise, light pollution, and marred aesthetics is the person who facilitated the opening of that deep “pit” in the earth, that is, the landowner who signed the lease.
A second rabbinic text that speaks to the acceptability of leasing one’s land for fracking comes from the Yevamot tractate of the Mishna and warns that we must not prevent others from enjoying something beneficial, even if they have no legal claim to it. The Mishna states explicitly, “one should not drain the water of his well when others need it”. This could serve as sage advice to landowners contemplating fracking, and the effects fracking could have on local well water.
Third, the Shulchan Aruch, the most authoritative legal code of Judaism ever written, explains that four nuisances to one’s neighbors are particularly egregious and objectionable: smoke, sewage odors, dust and similar aerosols, and vibrations. While Yosef Karo wrote this code in 1563, it seems impossible that he did not have divine foresight, as he comments on exactly those concerns most connected with fracking. Air pollution, dust, and vibrations (or micro-seismicity in technical terms) are frequently mentioned directly in relation to fracking. Sewage odors are a close cognate for methane leakage. The Shulchan Aruch, thus, paints fracking and its effects as an objectionable practice to which we should not expose our neighbors.
Perhaps the most unequivocal statement against fracking under Jewish Law comes from Rabbi Yitzchak ben Sheshet’s Responsa #196. Rabbi Sheshet, an important Talmudic authority in Spain and North Africa during the 14th Century, wrote, in one translation, “One may not protect his own property from damage at the expense of his fellow’s damage”, and in another translation, “One is forbidden from gaining a livelihood at the expense of another’s health.” The Rabbi’s interpretation clearly delineates which methods of decision making about fracking are appropriate and which ones are not. A utilitarian approach that weighs total amount of good and bad outcomes against each other, without attention to who benefits and who is harmed is not supported by Jewish law. Likewise, claims that property rights should allow one to permit fracking on one’s property, even if it would bring harm to others, are rejected.
Taken together, all this law and interpretation intimates a serious prohibition against leasing one’s land for fracking. A similar argument can be made about whether society should devise policies that permit or prohibit fracking. There are some people, perhaps some in this room, who would argue that the philosophy and ethics that guide our personal lives, particularly when based on religious law and values, should not inform policy decisions. This is, however, a far cry from what Sol Linowitz believed and how he lived his life. In recalling a conversation he had with ex-Secretary of State and Nobel Peace Prize winner Elihu Root, Linowitz stated that Root convinced him that, “If you really believe in your principles, you ought to put them to use in the real world and not just preach them from the pulpit.” It was Elihu Root who persuaded Sol Linowitz to become a lawyer, and eventually a statesman, rather than a rabbi.
There is perhaps no greater example of someone publicly living out the admonition to “remember that you were slaves in Egypt” than Linowitz’s own work negotiating a new treaty with Panama to transfer ownership of the Panama Canal back to that nation. Linowitz stated himself in 1995 that this was the accomplishment, over his whole life, of which he was most proud. In an interview with a legal magazine called Bar Report, Linowitz explained why he considered the treaty so significant:
“In recognizing the legitimate dissatisfaction the Panamanians had with the 1903 treaty and making the adjustments, we were acting the way a great nation should act. We could have thrown our clout around and made this little country come to heel, but instead we chose to treat the Panamanians with the dignity and respect they deserve.”
Linowitz helps us see the reason why recalling the Hebrews’ bondage is so necessary. When making difficult decisions, it is not about what you can do; it is about acknowledging the needs and interests of those who are less fortunate.
Unsurprisingly, not everyone agreed with Linowitz’s gracious and nuanced perspective. The outspoken Governor of California at the time, Ronald Reagan, was a chief opponent of Linowitz during the treaty’s ratification process. Reagan would constantly argue about the Panama Canal, “It’s ours. We built it. We paid for it.” All of these claims are, of course, true and are equally irrelevant to the question of what action is most just. To remember the Hebrews’ slavery in Egypt is not to focus on what belongs to you. The Hebrews’ land ostensibly belonged to Pharaoh. If we exercise the veil of ignorance from John Rawls’s theory of contractualism, however, we remember to look at each decision from the position of those in power as well as from the perspective of the oppressed, poor, and downtrodden. Deuteronomy also enumerates these pariahs that we must accommodate when it repeatedly commands us to provide for and include “the alien, the fatherless, and the widow”. Keeping in mind that our duties to others are also a duty to G-d, we are much more likely to adopt the right policies.
I have used fracking here as a current and potent example of how, if we forget the Hebrews’ slavery in Egypt, we could be tempted to enslave our own neighbors. This is just one example to which the law clearly speaks. My message today is not so much about appropriate policy in relation to fracking as it is a call to constantly relive the Hebrews’ bondage in our minds and to use that awareness and emotion to motivate us to behave in an upright manner. When considering individual actions or broad state and federal policy, let us remember the alien, the fatherless, the widow, and their modern-day equivalents. In terms of fracking, I am not even recommending that fracking be disallowed, or that it never occur. Rather, I am suggesting that if it were to occur, we would, as a society, need to devise regulations that do not allow some people to benefit at the severe detriment of others. This guiding principle contains a level of nuance often neglected in discourse about major policy issues.
When we leave this room today, my hope and prayer is that we do not take the aggadah and halakha – the stories and the law of the holy texts consulted here – and file them away in the “religious section” of our brains. The word of G-d and the rabbinic texts are at times provocative philosophy, and they are often beautiful literature, but they are always commandments and profound truths about how to live. The word halakha, while referring to the law, more literally means "the way of walking”. G-d’s commandments set before us a righteous path. Remembering the Hebrews’ bondage is not comfortable or pleasant, neither are many of the decisions we will be asked to make based on G-d’s commandments. Yet, far more onerous was the Hebrews’ oppression in Egypt. If we remember how bad some people have it, we will be more motivated to behave justly. Sol Linowitz understood this well, and so should we.