‘Tis the season when food is on most of our minds. What if next year or the year after some of that food was no longer available or even edible? The question is far from idle—ask almost any climate scientist. Better yet, ask a crab fisherman on the California or Oregon coast if climate change is having an impact on her catch and income.
A California court granted the Pacific Federation of Fishermen’s Associations standing to sue major oil producers just before Thanksgiving. It appears to be the first time a food industry has sought to recover lost revenues and wages from fossil fuel companies. The suit, Pacific Coast Federation of Fishermen’s Associations, Inc. vs. Chevron and some 30 other companies, stems from the delayed opening of Pacific Ocean waters off the coasts of California and Oregon.
Pacific Coast Federation of Fishermen’s Associations (PCFFA) is the largest commercial fishing trade group on the west coast. On behalf of Dungeness crab fisheries, the organization is seeking compensatory payment for the financial losses incurred as a result of toxic algae blooms. The US Department of Commerce has already allocated $15 million from the $200 million of available disaster assistance funds to help the fishing industry after hurricanes. The allocation falls far short of the Association’s estimated loss of $445 million.
The group is claiming the defendant oil companies have known for nearly a half century that “unrestricted production and use of their fossil fuel products create greenhouse gas pollution that warms the planet, changes our climate, and disrupts the oceans.” According to the complaint:
These changes threaten both the productivity of commercial fisheries and safety of commercially harvested seafood products. In so doing, they also threaten those that rely on ocean fisheries and ecosystems for their livelihoods, by rendering it at times impossible to ply their trade.
The case follows the same legal path plowed in the recent lawsuits of state, city, and county governments against major oil companies, e.g., City of Oakland and the People of the State of California v BP P.L.C. et al., and the tobacco cases of the 1980s and 1990s. All were pursued under state and federal nuisance laws.
Nuisances are considered tortious acts for which compensatory and punitive damages may be awarded. In law, a tort is defined as an act or omission giving rise to an injury or harm to another. Under federal common law, a public nuisance is an unreasonable interference with a right common to the public good.
The oil companies unsurprisingly have said the suits are without merit. In its defense, a spokesman for Chevron pointed out that fossil fuel production is not just lawful but encouraged by governments and vital to the economy.
The government lets me do it defense in climate cases is just beginning to be tested in state and federal courts. In one sense it’s a reasonable claim. Exploration, extraction, and fossil-based fuels are certainly not illegal activities in a holistic sense. Of course, owning a gun, driving a motor vehicle, or yelling fire aren’t per se illegal acts either—neither are they unfettered activities. Yelling fire in a movie theater or driving your car into a crowd of anti-Nazi protestors will get you significant jail time.
Smoking wasn't illegal at the time of the damage awards; neither is it illegal now. Although, the sales of some flavors of cigarettes, e.g., menthol, and vaping liquids, e.g., bubble-pop, are banned, and tobacco is regulated. The liability warning on tobacco products are the partial results of the lawsuits. The other results involved billions of dollars in damages. Beyond telling smokers what they might be in for, these warnings shift responsibility from the suppliers to the users.
I am not suggesting that notices warning consumers about the dangers of fossil fuels would prove to be a future defense for oil and coal companies. What I am saying is that these companies may be facing an onslaught of lawsuits whether PCFFA prevails or not. Early lawsuits against the tobacco companies weren’t successful—over time, as knowledge of the consequences became more solid and the count of the dead and dying kept growing, the government lets me do it defense didn’t play well in the courts. Liability still attached because the companies knew tobacco kills and failed to warn consumers.
The Pacific coast crab industry is not the only food producer that is or will be impacted by rising global temperatures and increasing numbers of extreme weather events. A recent study published in the journal Science Advances states that Arctic fish communities are already under stress and that a rise in global temperatures above 1.5 degrees Celsius (2.7 degrees Fahrenheit) will likely cause a severe decline in Atlantic cod populations. Cod are not only a food source for humans, they are food for other ocean species. The rising acidity and temperatures pose a double threat to commercial Atlantic fisheries.
The weather has always been a farmer’s best friend and worst enemy. Since Jacob walked in Egypt, good years and lean years for farmers have been written about. Natural cycles are one thing—global warming is another. If the Trump administration’s Fourth National Climate Assessment and the recent UN report by the Intergovernmental Panel on Climate Change are even half right, farmers in the US and around the world will be confronting obstacles not easily gotten around or over.
Let’s start with the morning’s coffee; continued warming will result in a redistribution of growing areas in Brazil, the world’s biggest producer. According to studies, up to 33 percent of the Arabica-growing region will be lost due to heat and more frequent and intense rainstorms. Although southern areas of Brazil are now too cold for growing coffee, they could become available. Even with the opening of those regions, however, overall production will substan-tially decrease.
In Tanzania, coffee production will need to move to higher altitudes to escape the heat. Redistribution of suitable production areas will have serious socio-economic impacts as farmers will have to establish other crops for their livelihoods. As coffee production moves up the mountains, it will compete and likely displace forests and natural ecosystems, which will further exacerbate the climate problem.
Other food crops like wheat, corn, and peaches will also need to seek higher ground. Climate models are predicting that rising temperatures in the US Corn Belt will receive rain less often; but, when it comes, it will be more intense. Corn doesn’t do well in the heat, and its root structure does little to prevent erosion—both circumstances bode badly for the crop and the environment. Jason Clay, at the World Wildlife Fund, predicts that “by 2100, the Corn Belt is going to be in Canada, not in the United States."
Rain-fed field crops like corn and soybeans in the Midwest appear most vulnerable to higher temperatures and less regular rainfall, according to a recent study by Cornell University. According to the study:
The results show a clear escalation in climate sensitivity in the Midwest between two distinct time periods. In the 1960s and '70s, a 2-degree Celsius rise in temperature during the summer resulted in an 11 percent drop in productivity. After 1983, however, the same rise in temperature caused productivity to drop 29 percent.
More alarming than what has happened is what the research suggests will happen. A rise in temperatures of 1-degree Celsius (1.8-degrees Fahrenheit) will more than quadruple the frequency of summer crop losses amounting to half a farmer’s profit every four years. In the words of one researcher: “That’s a big loss.” Given the findings of the Administrations Fourth National Climate Assessment, the UN’s Intergovernmental Panel on Climate Change report, there is no doubt that a rise of 1-degree Celsius will happen within less than the next ten years.
A redistribution of growing areas around the world will take their toll on production and cause the type of socio-economic disruption being predicted in Tanzania’s coffee regions. As a practical matter, there is only so much “up” that can take place—coffee growers will run out of mountains to climb just as corn and peach producers in the US and Canada can only go so far north, before they must come back down south.
Algae blooms are not limited to the Pacific coast. Blue-green blooms and red tides in Florida have been in the news a lot lately and even played a part in the November elections in the state. Warming waters are not the only threats to food sources from the oil industry. Leaks from pipelines and rigs both offshore, e.g., Deep Well Horizon, and on land, e.g., Keystone Pipeline, threaten food sources in the US.
The Brookings Institute estimates the economic importance of commercial fishing operations such as seafood wholesalers, processors, and retailers in the US to be around $90 billion and supports over one and a half million jobs. That number is roughly equal to 75 percent of the jobs in the top 10 energy sectors combined, according to the US Department of Energy. (see Table: Employment Comparison)
The Table also shows that the solar employs almost three times the number that the coal industry does. While coal jobs will decline over the next decade the number of jobs in the solar and wind industries will be growing exponentially. Coal can’t compete with solar, wind, or natural gas based on price—not because of environmental regulation. Solar alone employs more than natural gas and in combination with wind more than oil/petroleum industry. Both renewable sources have far less impact on food production and contribute little to global warming.
As temperatures rise, they will continue to take a toll on food production. Whether the PCFFA case succeeds or not, suits against oil companies by food producers will continue. Unlike the litigation against the oil companies by local governments, food producers will easily meet the standing requirements of--sufferance of an actual injury or harm traceable to the defendant’s actions and redressable by the courts. Once in court, almost anything can happen.
Lawsuits and damage awards do nothing to solve the problem. Whereas they may end up compensating some plaintiffs for their losses, the losses will continue for as long as the US and other governments around the world do far less than is required either to combat climate change or adapt to it.
Lead image: Antonio de Castillo, The Triumph of Joseph in Egypt, c.1655
Joel B. Stronberg
Joel Stronberg, Esq., of The JBS Group is a veteran clean energy policy analyst with over 30 years’ experience, based in Washington, DC.