Two recent Circuit Court (2nd and 5th) decisions allowed civil lawsuits against oil and utility companies for their role in climate change. Agriculture should be very concerned, several attorneys say.
"We already know that environmentalists and animal welfarists have raised concerns about emissions in agriculture,” says Peter Glaser, chair of the Climate Change Practice Team at Troutman Sanders LLP. "Several things are significant about these cases. First, they are nuisance suits, which are fairly straightforward. In the 5th Circuit case, size didn't seem to matter—any emitter of greenhouse gases or producer of fossil fuels can be sued. Second, there currently is no law spelling out a safe threshold for various greenhouse gases, so there is no way for producers to know they are under the limit.”
"These cases can have far-reaching implications for agriculture,” adds Gary Baise, a principal at Olsson Frank Weeda Terman Bode Matz, PC, who specializes in ag environmental issues. "Not only confinement animal units could be targeted, but producers who apply fertilizer—nitrous oxide emissions from anhydrous ammonia are 200 times more potent than carbon dioxide, which isn't even a real pollutant.
Joel Cape of Frilot LLC in New Orleans points out that the 5th Circuit case has some unique properties, however. The plaintiffs alleged that pollution caused global warming, which led to a rise in sea water and more volatile weather, contributing to the severity of flooding and resulting property loss, he points out. "It may be a little more difficult to show direct damage, say in the Midwest, where more of agriculture is centered.”
In addition, he says, there is some chance that climate change legislation will address some of the issues. However, Baise doesn't believe legislation will pass this year, at least.
"These are some of the most interesting cases to come down in awhile,” says Cape. "They raise many issues. It will be interesting to see whether they continue forward. Causation is required, so someone will have to testify that the defendants were the cause of greenhouse gas and that that caused the damage from Katrina. That may be a long way to go. But the whole notion that private individuals have standing to sue against climate change is certainly significant.”
Given the current atmosphere in Washington, DC, chances are the scales are tilting to the side of environmentalists and others battling against perceived polluters.