Climate Torts Against Big Agriculture
Shanthi Chackalackal
Over the past two decades, the way society has discussed what was once referred to as “global warming” has evolved dramatically, becoming “climate change,” “the climate crisis,” and most recently, “the climate emergency.” This new sense of urgency reflects more than just rhetorical flourish; underlying it are the increasingly dire warnings of the scientific community that if governments do not act swiftly to curb carbon emissions, the devastating effects of the climate crisis will become irreversible. In a recent press release, Intergovernmental Panel on Climate Change (IPCC) Chair Hoesung Lee emphasized the necessity of “immediate and more ambitious action,” noting that “[h]alf measures are no longer an option.”[1]
Not coincidentally, there has also been a rise in climate-related torts—particularly in light of recent revelations that major fossil fuel corporations not only knew about climate change as early as the 1970s, but also pumped millions of dollars into campaigns aimed at discrediting climate science and preventing climate action.[2] While earlier attempts to redress the climate crisis using tort law focused on greenhouse gas emissions themselves as the harm—and almost universally failed—this new wave of climate torts has focused on disinformation as the harm, bringing state tort claims based on tortious marketing of fossil fuel products.[3] The tortious conduct alleged is a systemic use of a “disinformation plus path-dependence” strategy—similar to that utilized by the tobacco industry, consisting of (a) the proliferation of disinformation to influence decision making about use of the product and (b) the ensuing deprivation of free choice on the part of those who become dependent on the product[4]—to carry on profiting from the sale of a product despite evidence of their dangerous nature.[5] Focusing on marketing can also avoid one of the common pitfalls the first wave of climate torts encountered: holdings that claims based solely on greenhouse gas emissions were beyond the scope of tort law because they were preempted by the Clean Air Act. Additionally, state tort law is well-equipped to deal with wrongful marketing of products claims; similar claims have been brought in state courts against the manufacturers of opioids, lead paint, and guns.[6]
The second wave of climate torts has other strengths the first wave lacked. First, the evidence of the existence of anthropogenic climate change is now beyond dispute. Second, the plaintiffs have evidence of the specific contributions made to global greenhouse gas emissions of each defendant. Lastly, there is documented evidence of the defendant’s knowledge of their contribution to climate change and that they responded by launching disinformation campaigns aimed at preventing efforts to reduce greenhouse gas emissions. It remains to be seen whether this second wave of climate torts will prove successful than their predecessors; but if they do, could these types of suits be used against other industries that are responsible for a large percentage of global greenhouse gas emissions?
Although often overlooked in discussions of climate action, the agricultural sector—particularly industrial agribusiness, or “big agriculture”—is a key player, responsible for 24% of global greenhouse gas emissions according to IPCC estimates.[7] This is no insignificant percentage; for comparison, electricity and heat production account for 25% of emissions, industry for 21%, and transportation for 14%.[8] Large scale animal agriculture—especially the production of beef—is particularly deleterious to the environment, thanks to substantial methane emissions and loss of stored carbon as forests and soils are cleared for livestock grazing and feed production,[9] and nitrous oxide emissions from the nitrogen-rich fertilizers used in large-scale farming to grow products like corn to feed livestock.[10]
While most industries are responsible for environmental harm, big agriculture is arguably the most analogous to the fossil fuel industry, not only in terms of its environmental impact but also because of its political activities and misinformation campaigns. Like the coal, oil, and gas industries, big agriculture has worked tirelessly to obstruct policies aimed at preventing climate disaster.[11]
In 1980, the American Farm Bureau Federation (the “Farm Bureau”)—a major lobbying group for the agriculture industry—called for the abolition of the Environmental Protection Agency.[12] During the Clinton Administration, it collaborated with the fossil fuel lobby to prevent the U.S. from signing onto the Kyoto Protocol and to frustrate emissions regulations and legislation such as the Waxman-Markey cap-and-trade plan[13] Dan Kleckner, then Farm Bureau president, frequently characterized climate change as an unproven theory. The Farm Bureau became a member of the Global Climate Coalition (GCC)—a lobbying group including industries such as Exxon—which spearheaded a $13 million campaign to sabotage Senate approval of the Kyoto Protocol and proliferated the message that climate science was uncertain and climate action would devastate the American economy. Over the next decade, the Farm Bureau also allied itself with the Heartland Institute, a conservative think tank known for its denial of climate science and of the negative impacts of smoking.[14] To this day, the Farm Bureau hardly concedes the existence of human-caused warming.[15]
Climate torts against fossil fuel companies may achieve success by focusing on both the corporations’ contributions to climate change and their efforts to stymie climate action through lobbying and misinformation campaigns. Big agriculture is responsible for both of these harms as well. The similarities between the fossil fuel industry and big agriculture don’t end there; just as climate disaster cannot be avoided without ending society’s reliance on fossil fuels, new United Nations reports indicate that there is no way to keep global average temperature rises under 2℃ without significantly reducing emissions from agriculture.[16]
As in the case of fossil fuels, torts against big agriculture based on environmental harm face many obstacles. Foremost among them are so-called “right to farm” laws, which provide affirmative defenses against nuisance claims levied at farms, including those for environmental harm. All fifty states have enacted some kind of right to farm law; Michigan’s states that a farm shall not be found a public or private nuisance “if the farm or farm operation alleged to be a nuisance conforms to generally accepted agricultural and management practices according to policy determined by the Michigan commission of agriculture”[17] or “if the farm or farm operation existed before a change in the land use or occupancy of land within 1 mile of the boundaries of the farmland, and if before that change in land use or occupancy of land, the farm or farm operation would not have been a nuisance.”[18] Iowa’s right to farm laws make proof of compliance with federal and local requirements an “absolute defense” in “any nuisance action or proceeding against a feedlot brought by or on behalf of a person whose date of ownership of realty is subsequent to the established date of operation of that feedlot.”[19]
These right to farm laws make it practically impossible for nuisance claims against big agriculture based on environmental harm to succeed. But perhaps, as in the case of torts against fossil fuel corporations, focusing on tortious disinformation campaigns rather than on emissions themselves could circumvent such right to farm laws, and allow for some legal avenue towards holding big agriculture accountable for its contributions to the climate crisis and to climate denial. Only time will tell.
Shanthi Chackalackal is a Junior Editor with MJEAL. Shanthi can be reached at shanthic@umich.edu.
[1] See Press Release, IPCC, Climate Change: a Threat to Human Wellbeing and Health of the Planet (Feb. 28, 2022), https://www.ipcc.ch/report/ar6/wg2/resources/press/press-release/.
[2] See Shannon Hall, Exxon Knew About Climate Change Almost 40 Years Ago, Sᴄɪᴇɴᴛɪғɪᴄ Aᴍᴇʀɪᴄᴀɴ, (Oct. 26, 2015), https://www.scientificamerican.com/article/exxon-knew-about-climate-change-almost-40-years-a go/.
[3] See Karen C. Sokol, Seeking Climate Justice in State Tort Law, 95 Wᴀsʜ. L. Rᴇᴠ. 1383, 1414 (2020).
[4] See Karen C. Sokol, Smoking Abroad and Smokeless at Home: Holding the Tobacco Industry Accountable in a New Era, 13 N.Y.U. J. Lᴇɢɪs. & Pᴜʙ. Pᴏʟ’ʏ 81, 94-102 (2010).
[5] See Sokol, supra note 3 at 1417.
[6] See id, at 1415-16.
[7] See EPA, Global Greenhouse Gas Emissions Data, Uɴɪᴛᴇᴅ Sᴛᴀᴛᴇs Eɴᴠɪʀᴏɴᴍᴇɴᴛᴀʟ Pʀᴏᴛᴇᴄᴛɪᴏɴ Aɢᴇɴᴄʏ (Apr. 21, 2022), https://www.epa.gov/ghgemissions/global-greenhouse-gas-emissions-data. (Showing sector emissions data calculated by combining food production and the land use associated with farming).
[8] See id.
[9] See Climate Nexus, Animal Agriculture’s Impact on Climate Change, Cʟɪᴍᴀᴛᴇ Nᴇxᴜs (Apr. 21, 2022), https://climatenexus.org/climate-issues/food/animal-agricultures-impact-on-climate-change/
[10] See Our Endangered World, Is Corn Bad for the Environment?, Oᴜʀ Eɴᴅᴀɴɢᴇʀᴇᴅ Wᴏʀʟᴅ (Apr. 21, 2022), https://www.ourendangeredworld.com/eco/is-corn-bad/#:~:text=First% 20of%20all%2C%20the%20farm,the%20environment%20than%20carbon%20dioxide.
[11] See for example Timothy A. Wise, Big Ag is Sabotaging Progress on Climate Change, Wɪʀᴇᴅ (Aug. 28, 2019), https://www.wired.com/story/big-ag-is-sabotaging-progress-on-climate-change/
[12] See Charlie Mitchell, The Farm Bureau’s Cunning Plan to Fight Climate Change—and Regulation, Tʜᴇ Nᴇᴡ Rᴇᴘᴜʙʟɪᴄ, (Apr. 2, 2021), https://newrepublic.com/article/161926/farming- lobby-cunning-plan-fight-climate-changeand-regulation; Marc Heller, ‘Climatic Events’: How Farm Groups Skirt Global Warming, Gʀᴇᴇɴᴡɪʀᴇ, (March 3, 2020), https://subscriber.politicopro.com/article/eenews/1062507769 (“Major farm groups have hit on a new way to tiptoe around climate change affected by human activity: Call it “climatic events.” That’s the catchphrase in a new initiative by the American Farm Bureau Federation and 20 other farm groups meant to address the ongoing debate about agriculture’s contribution to — and role in mitigating — a warming climate.”).
[13] See Neela Banerjee, Georgina Gustin, and John H. Cushman Jr., The Farm Bureau: Big Oil’s Unnoticed Ally Fighting Climate Science and Policy, Iɴsɪᴅᴇ Cʟɪᴍᴀᴛᴇ Nᴇᴡs (Dec. 21, 2018), https://insideclimatenews.org/news/21122018/american-farm-bureau-fossil-fuel-nexus-climate-c hange-denial-science-agriculture-carbon-policy-opposition/
[14] See id.
[15] See Mitchell, supra note 12.
[16] See Mark Howden, UN Climate Change Report: Land Clearing and Farming Contribute a Third of the World’s Greenhouse Gases, Tʜᴇ Cᴏɴᴠᴇʀsᴀᴛɪᴏɴ (Aug. 8, 2019), https://theconversation.com/un-climate-change-report-land-clearing-and-farming-contribute-a-thi rd-of-the-worlds-greenhouse-gases-121551.
[17] See Mich. Comp. Laws Ann.§§ 286.471–286.474 (West 1981).
[18] See id.
[19] See Iowa Code § 172D.2 (2021).