Animal Agriculture and Climate Change: how strategic litigation is being used around the globe

Animal Agriculture and Climate Change: how strategic litigation is being used around the globe

Introduction

While the direct impact of mass animal agriculture is undoubtedly clear and needs reform from an animal welfare perspective, there climate impact is a secondary impact of the industry which requires reform. The impact of mass animal agriculture on the climate is considerable; annually more than 92 billion land animals are bred for food globally which accounts for roughly 16.5% of anthropogenic greenhouse gas (“GHG”) emissions, similar in level to the emissions produced by global transportation. By 2030, the livestock sector is projected to account for almost half of the world’s emissions budget for the Paris Agreement’s target of 1.5 degrees Celsius. Improved legislation is essential, but where legislation is either lacking or slow to be reformed, strategic litigation is beginning to step into courtrooms across the globe to address climate concerns.

What is the environmental impact of animal agriculture?

In Europe, food alone is responsible for 30% of total greenhouse gas emissions, with meat production contributing the most impact. Meat production is the single greatest cause of deforestation globally, with almost half of the world’s habitable land being used for farming animals. Mass animal agriculture also generates a significant water footprint with almost 90% of the world’s water being used for the industry. It is estimated that producing a single pound of beef takes about 8,183 litres of water, the equivalent of pouring 39 baths to their brim due to water intensive crops (soya, grain) required to feed cattle.

The use of strategic litigation to tackle the climate crisis

Despite not being as prominent as litigation against the carbon majors, litigation relating to animal agriculture is slowly starting to emerge in court rooms around the globe as advocates seek the guidance of the courts to tackle the urgency of the climate crisis. The causes of action have varied for these cases, demonstrating the strategic nature of litigation being pursued. A sample of the growing body of case law is set out below:

A. Consumer protection and misrepresentation claims

In the case PMT 17372-21, between the Swedish Consumer Ombudsman and Arla Foods, a large dairy producer, the Ombudsman brought a case on the basis that Arla foods was misrepresenting the impact of its products by using a label stating products have a “net-zero climate footprint”. The Swedish Patent and Market Court determined that the statement was misleading and gave the impression that the dairy products did not produce any climate impact at all and would be misinterpreted by an average consumer to mean that the product had no climate impact, or any climate impact had been fully compensated, which was not the case.

In the case of The Vegetarian Society v Danish Crown the claimants argued that Danish Crown, the EU’s largest pork and beef producer, had mislead consumers through its campaign that claimed that its pork was “climate controlled” and “more climate friendly than you would think” which misrepresented the climate footprint of the animal-based products in violation of the Marketing Practices Act s.5. In March 2024, the Danish High Court determined that the use of the term “climate-controlled” was unlawfully misleading to consumers and ordered Danish Crown to remove the campaign.

The Attorney General of the State of New York v JBS USA Food Company and JBS USA Food Company Holdings is another example of a consumer protection claim. The Attorney General for New York is suing JBS entities, the largest producer of beef related products globally, for “sweeping representations to consumers about [JBS’s] commitment to reducing its GHGs”, amongst other claims, in violation of New York’s consumer protection legislation. The Attorney General is seeking a range of remedies including injunctive relief, disgorgement of profits traceable to the violation of consumer protection legislation and cost penalties.

B. Duty of due diligence

France enacted the Droit de Vigilance, Loi 2017-399, which requires companies meeting certain thresholds to publish an annual vigilance plan detailing and addressing risks that are posed by its supply chain to human rights or the environment. In the first case brought under the law, Envol Vert et al v Casino Guichard Perrachon S.A, a group of non-governmental organisations sued French supermarket chain Casino for failing to adequately uphold its duty of diligence due to the environmental impacts of its beef supply chain. The claimants argue that three slaughterhouses are still supplying a member of Casino’s supply chain with beef from deforested areas or from farms which have been illegally established on indigenous territories. The claimants are seeking injunctive relief with monetary damages in the event of continued delay by Casino to publish a more accurate report.

A similar claim has been threatened in Comissao Pastoral da Terra and Notre Affaire a Tous v BNP Paribas, whereby the claimants allege that BNP Paribas provides financial services without adequate due diligence to large corporations, such as Marfrig, one of the world’s largest beef producers. Suppliers to Marfrig have engaged in severe deforestation of the Amazon and associated illegal zoning of indigenous territories and BNP Paribas continued financing of Marfrig despite its own net-zero commitments and failed to adequately address the impacts of continuing to provide financial services to corporations with environmentally damaging supply chains.

With the introduction of the Corporate Sustainability Due Diligence Directive, which requires certain companies to report on the environmental impacts of their supply chains, it is likely that similar claims will follow which aim tackle the environmental impact of big-ag.

C. Tort

In New Zealand case of Smith v Fonterra, the claimant challenges New Zealand’s seven largest emitters, two of which are animal agriculture organisations: Fonterra Co-Operative Group Limited, the ninth largest dairy producer globally, and its subsidiary Dairy Holdings Limited. Mr Smith’s claims against Dairy Holdings Limited relate only to emissions from animal agriculture. The claim is based on three separate tortious grounds: negligence, public nuisance and a third, novel, duty to “cease materially contributing to damage to: (1) the climate system; (2) dangerous anthropogenic interference with the climate system; and (3) the adverse effects of climate change”. The Supreme Court held that all three grounds could proceed at a substantive hearing. Throughout the judgment, the Supreme Court accepted that animal agriculture is a considerable part of GHG emissions, the first judgment to do so. It remains to be seen whether the case will succeed on its substantive merits.

In a recent letter before action issued to Avara Foods, Freemans of Newent and Cargill PLC, all involved in industrial poultry production in Hereford, claimants allege that they will bring a claim against these entities on the basis of private nuisance, public nuisance and a breach of section 73(6) of the Environmental Protection Act 1990, caused by the unlawful deposit of waste. The claims allege that these entities’ actions have increased the levels of phosphorous pollutants in the locality, in some instances with levels 60% higher than the national average. While not an entirely climate related claim, it is an example of pollutants from big-agriculture being targeted by litigation.

Conclusion

While animal agriculture’s impact on climate change has remained a lesser discussed issue, awareness of is increasing and actors are seeking to hold the animal agriculture sector accountable. As a largely de-legislated sector and one where there is no Paris Agreement aligned transition path, strategic litigation appears to be a useful tool through which to seek positive change. Following the trajectory of strategic climate litigation cases against large fossil fuel emitters, which have received some considerable legal successes, as well as indirect success outside of the courtroom, we should be prepared for the next wave of strategic litigation against big-ag. 

Riley Forson

Associate, Litigation and Dispute Resolution Macfarlanes LLP