The food system contributes 1/3 of greenhouse gasses. What does that mean for liability?
Recent studies have shown us that the way we account for carbon emissions can lead us to dramatically different conclusions. The most recent example of this was the news that our food system contributes one third of global greenhouse gas emissions if you fully account for all the activity that goes into it. This number stands in sharp contrast to the 10% normally linked to food production. Both of these numbers stand in contrast to the 5.2% share of GDP from the overall food system, or 0.6% of GDP directly from farming.
The prevailing view isn’t the result of anything nefarious – it’s simply a result of how the United Nations framework for greenhouse gas accounting was designed. The UN framework limited the “agricultural” category to the direct emissions of nitrous oxide (N2O) and methane (CH4) – but not carbon dioxide! (CO2) – directly from farms, which includes burning crops, emissions from draining soil, enteric fermentation in animals, releases from fertilizers, and rice cultivation. These activities alone contribute the 10% of greenhouse gas emissions mentioned above.
The UN system therefore classifies all of the following CO2, N2O, and CH4 emissions as coming from non-agricultural sources: on-farm energy use, converting forests to farmland, downstream food waste decomposition or incineration, food transportation, food packaging, fertilizer manufacturing, and more. The startling realization from the new report is that accounting for all of these greenhouse gas sources as part of the food system results in more than tripling food-related emissions from 5.3 to 16.1 gigatons per year of CO2-equivalent.
We view climate litigation as a multifaceted risk with many possible avenues for litigation to take hold and succeed. First, and most obviously, there is direct climate litigation where citizens or governments sue actors in the oil and gas industry for the effects of climate change on their lives and cities/states. There are already many cases along this litigation track, from the children’s lawsuit in Oregon to both East and West Coast cities suing big oil manufacturers. If this sort of direct litigation expands beyond targeting oil companies, this paper suggests that large companies in the food industry may get sued sooner than they would otherwise for their contributions to climate change.
The second facet of climate change litigation is what we term “proxy litigation”: litigation that may not proximately be about climate change but seeks to hold greenhouse gas emitters responsible for bodily injury or property damage that they’ve caused. The desire to hold large emitters responsible for climate change makes this a tempting way for some plaintiffs to sue, for example, big oil or power companies. This propensity to sue in a proxy litigation is elevated when the targeted sector is responsible for more greenhouse gas emissions compared to its economic output. Our diesel exhaust scenario, for example, contemplates exactly this kind of climate change litigation by proxy, with the claims premised on the health effects of particulate matter from diesel exhaust. Defendants in that scenario include transportation companies, bus/truck/train manufacturers, and more. The revelation that the transportation of food contributes substantially to climate change may increase the likelihood this litigation begins.
A third facet of climate litigation involves what we’re seeing with the arsenic in baby food litigation: it is neither explicitly nor implicitly about climate change, but the lawsuits likely would not have happened but for it. The consequences of our changing climate include increased drought, which increases the concentration of arsenic in soil. The increase in global temperatures also cause rice plants, long known to take metal up from the soil, to take in a larger proportion of arsenic than before. This double-whammy of climate effects created the conditions for elevated arsenic levels in baby food and the resulting litigation.
The realization that the food system overall contributes a third of global greenhouse gasses suggests that companies involved in the food system are at increased risk for both directly-targeted climate litigation and climate litigation by proxy, especially given the food system’s contribution to climate change compared to its economic output. This increase in litigious energy could find an outlet in several places. The increased desire to hold climate change actors responsible for their emissions could lead to initiation of litigation about the harmful health effects of food packaging plastics that leach endocrine disrupters into our bodies. The practice of burning fields of sugar cane plants to simplify their harvest may also provide increased incentive to sue sugar companies over obesity, metabolic syndrome, and type II diabetes caused by sugar consumption.
The variety of climate change related risks is large. Our increased understanding of what sectors of the economy contribute to climate change provide hints as to which of them might be viewed as good targets for future litigation.