CLIMATE CHANGE AND AGRICULTURE:

A SYNOPSIS OF KEY ISSUES FOR LAWYERS

Frederick O. Boadu Professor

Department of Agricultural Economics Texas A&M University College Station, Texas

David K. Waggoner

The Waggoner Law Firm Hillsboro & Corsicana, Texas

State Bar of Texas

AGRICULTURAL LAW COURSE 2009 May 14-15, 2009 Lubbock, Texas

Inspirational

Why Agricultural Lawyers and Climate Change?

Poses some large legal issues

Humans at center of climate debate

Likely impact on property relationships

Solutions have implication for firms and households

The rural economy is especially implicated

Plan of Presentation

What is climate change?

Climate change and agriculture

Climate change in the courts

Law practice and climate change

What is climate change?

“a change in climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to natural climate variability observed over comparable periods of time.”

UNFCCC, Article 1, 1992

What is climate change?contd.

Climate change and agriculture

Sustainability of resources supporting the production of food. floods, droughts, loss of soil moisture, water

availability, weed growth, and pests.

Solution to climate change may lower food supply

Impact feedstock for biofuels production.

Climate change in the courts

LITIGATION BASED ON ENVIRONMENTAL STATUTES

Massachusetts v. Whitman

New York v. EPA

Northwest Environmental Defense Center v. Owens Corning Corp.

Massachusetts v. EPA

Climate Change in the Courts contd.

Litigation based on WILDLIFE PROTECTION STATUTES

Marine Mammal Protection Act (MMPA)

Endangered Species Act

Climate Change in the Courts contd.

LITIGATION BASED ON ENERGY STATUTES

Energy Policy and Conservation Act (EPCA)

Climate Change in the Courts contd.

LITIGATION BASED ON INFORMATION REQUIREMENTS

National Environmental Policy Act (NEPA)

Climate Change in the Courts contd.

LITITGATION BASED ON COMMON LAW TORT THEORIES

Connecticut v. American Electric Power Co.

Native Village of Kivalina v. ExxonMobil Corp.

Comer v. Murphy Oil USA, Inc.

Summary of Litigation and Challenges

The courts will see more cases

Federal-State preemption issues

International dimensions of climate change litigation may intensify

Litigation has reduced the transaction costs facing private attorneys

POSITIONING LAW PRACTICE IN RESPONSE TO

CLIMATE CHANGE

The “latent market” for legal services

The collateral markets and industries

alternative fuels

environmental goods

rural lands market

government policy and regulations market

International contracts (JI & CDM)

horizontal alliances

Drivers of Agricultural Law Market

Leadership and Service to Rural America

environmental impacts of increased water use and air pollution

utilities and energy distribution systems

organizational and business structure issues

property rights, land and water resources

negotiating land contracts for climate change-related carbon sequestration, and forest management projects.

Drivers of Agricultural Law Market contd.

Make Climate Change Policy relevant to Rural Sector

The goal is to move beyond the widely-discussed cap-and-trade approach and to pay equal attention to “the progress of carbon capture and storage demonstration projects, efforts to build new transmission corridors to bring renewable energy to market, the development of the smart grid, and the retrofitting of energy-efficient homes and offices.

Working with State and Local Governments and Collateral Market Opportunities

Bringing it all Back Home

The Legal issues related to climate change will gain in increasing complexity

The need for horizontal alliances is critical in the expanding market for climate change-related services

The rural climate-related legal market has great potential.

The climate change-related market extends beyond our borders.