Increasingly, the climate impact of our diet is being recognised. The uncomfortable knowledge that the contents of our dinners can affect planetary health makes the issue of mitigating these emissions contentious, particularly with regard to our consumption of animal products. The role law has historically played and is still playing in creating the current levels of livestock production is often displaced in this debate – instead, we often focus on individual consumer choice or the perceived responsibility of farmers to consider sustainability in their farming practices. This contribution intends to highlight the role of law and lawmakers have had in current levels of livestock production and how law is a key piece in the puzzle of achieving a sustainable global diet.

Law’s Enabling Role in Livestock Emissions Production

Transforming the livestock industry through climate change mitigation law is no simple feat, with multiple important legal concerns intersecting within the governance of the livestock industry. A wide range of legal regimes are relevant in livestock governance, which must also be considered alongside any attempts at transformation. Elsewhere, I have argued for the existence of a “regime complex for agri-environmental governance”. This regime demonstrates the complex multitude of (understandably fragmented) regimes that regulate the multiple facets of agri-environmental governance, including food security, agricultural trade, climate change, forests, biodiversity, public health, animal health and welfare, and beyond.

Within these legal regimes, historic norms and path dependencies have emerged that have contributed to the current unsustainability of the global livestock sector. More specifically, the historical development of global agricultural governance has embedded models of agricultural productivism in international livestock governance that frequently run against current environmental trends. Post-World War II, agriculture was effectively excluded from the development of international trade law due the global bargaining influence and power of large protectionist agricultural economies at the time, such as the EEC and US. This exclusion of agriculture resulted in major overproduction of certain agricultural commodities in protectionist agricultural economies and global distortion in agricultural market prices. Despite major reforms made at the Uruguay Round in 1992 to reduce the overproduction and protectionism in major agricultural economies, it has been argued by myself and others that a “hangover” of productivism has lingered in agricultural governance, even after these reform attempts.

The legacy of the historical embedding of productivism in agricultural governance is particularly relevant when discussing agri-climate measures, as these productivist agricultural norms have been identified to still be “stabilised” and “locked-in” to modern agriculture due to a number of mechanisms, such as scale economies, sunk investment and infrastructure – to the detriment of better integration of climate mitigation in the sector.

We are all aware of the durability of legal norms due to the nature of law itself often requiring significant reform for transformative changes to be made. The durability of agricultural productivist norms in law is particularly pervasive due to a divisive stagnation of necessary reforms to overarching rules that govern the global agricultural sector. For example, utilising the WTO example, negotiations on agricultural issues are often very slow and unproductive. Attempts in the Doha Agenda in 2001 to reform the Agreement on Agriculture ultimately failed. Ministers met multiple times between 2003 and 2008, and negotiations broke down in 2008 due to political tensions between developed agricultural economies and developing agricultural commodities in relation to the US and EU’s maintenance of agricultural subsidies. Further attempts were made in 2008 by the US, China, and India to overcome these differences through further negotiations, however, ultimately, these once again failed. Even as recently as WTO’s 13th Ministerial Conference in February 2024, agreements on agriculture were unsuccessful.

Similarly, attempts in international climate law to improve the climate change mitigation for the agricultural sector within the UNFCCC COP meetings have made little progress, despite an increasing focus on agri-climate issues in and around annual COP meetings. Generally, agriculture has been granted “exceptional” status in the development of international climate law. In more recent years, the Sharm el-Sheikh Joint Work on Implementation of Climate Action on Agriculture was agreed upon at COP27 to extend the previous scoping work of the Koronivia Joint Work on Agriculture agreed upon at COP23; negotiations were still fraught with fundamental disagreements. The agricultural agenda item at COP27 had more hours of negotiation in the first week than any other agenda item at the COP Meeting. Carbon Brief highlighted that “whole food systems approaches” were the key dividing element between countries more willing to embrace aspects of agri-climate law and policy, such as consumption diet, and those who were reluctant to risk the impact of measures such as these on their domestic agricultural sectors. Notably, there were even objections to the words “climate action” (over simply, “action”) in the title of earlier drafts of the Decision for the Sharm El Sheikh Joint Work, even though this ultimately remained in the title as “climate action”. It is therefore unsurprising that agriculture’s treatment in the climate regime is underpinned with exceptionalism – not dissimilar to its treatment over half a century ago in post-World War 2 negotiations on agricultural production.

Undoing Productivist Norms

So, where does this leave the role of law in sustainably transforming livestock governance? Frequently, it is suggested that the law does not possess the correct toolkit to be able to shape global agricultural markets and consumers’ plates significantly to reduce livestock emissions. Instead, the state’s role in tackling the overconsumption of these goods is often seen solely as an educational or awareness-raising endeavour among the wealthy consumer elite.

This perspective underestimates the role law can play in undoing the productivist norms previously embedded in agricultural legal governance. A true ‘undoing’ of these norms might require a complete overhaul reform of agricultural governance globally, given the locked-in nature of productivism in agricultural governance. In practical terms, at a minimum harmful, agricultural subsidies and support should be reduced where support is provided that causes market distortions for the livestock sector. Despite the legal forums where agri-climate mitigation is raised, much of this ‘undoing’ will likely need to take place beyond the climate change regime, looking towards core principles and models utilised in broader agricultural governance, such as trade or domestic agricultural rules, and their synergistic or limiting effect on climate mitigation goals.

Creating New Norms for Sustainable Agriculture

The creation of new norms for the livestock sector to supplement and go beyond this initial undoing of productivist norms could emerge from the climate change regime (such as the Sharm El Sheikh Decision at COP27) but may also require engagement from other relevant regimes in the current regime complex for agri-environmental governance. Multiple authors and studies suggest practical livestock solutions that can be beneficial for reducing the climate impact of the livestock sector, but the complexities lie in utilising these in the appropriate legal forums where new norms can emerge in a way that is compatible with other relevant legal rules – such as those of the WTO or broader principles of equity that may exist. Legal and policy solutions need to be context-specific and have an awareness of other important socio-economic factors, such as hunger, inequality, and vulnerable populations, that may be affected by fundamental reorientations of agricultural priorities.

In response to this, I argue that actors with the most capability globally should be leading the way in terms of introducing these more disruptive agri-climate solutions into legal governance, in line with the international climate law principle of Common But Differentiated Responsibility (CBDR). In the context of the livestock sector, this will mean developed nations with higher levels of luxury consumption of livestock goods should be the first to move, given the lesser threat to national food security and more insulation from economic shocks from agricultural market shifts than less wealthy nations. Moreover, active protection and support needs to be put in place to protect those most vulnerable to the shifts, such as livestock farmers who may require support for diversification of production and income production. Policies that support vulnerable and affected actors in these shifts may be as important as the attempts at a more fundamental reorientation of agricultural priorities.

An emerging trend is utilising public health synergies with climate change mitigation to make this shift more politically palatable. The concept of a “healthy sustainable diet” highlights the public health impacts of current consumption trends of livestock goods when compared to other healthy dietary components – ideally providing a “win-win” solution for policymakers as well as lawmakers to an otherwise unwanted shift away from agricultural productionism. This blog post has not engaged significantly with “soft” or “non-law” solutions, but these may well be where significant norm shifting occurs for the sector.

Examples of interesting legal developments to monitor for their success include the EU’s new due diligence regulation that covers supply chains of high deforestation and ecosystem agricultural commodities, like beef or soy for livestock feed. Similarly, attempts at food system transformation by the EU through its Farm to Fork plans should be keenly monitored to assess their success and failures, of which many have already emerged.

Conclusion

Overall, transformation of the livestock sector with climate change mitigation law alone is not a simple feat. Multiple legal regimes with pre-existing legal norms govern livestock goods simultaneously, including regimes with economic or agricultural goals, such as the trade regime. The historical development of agricultural models and their embedding in legal systems is still pervasive today, despite reform. Any attempts to reorient livestock systems to be more climate friendly will require engagement with and reform of these historical productivist norms across the myriad of regimes – despite their perceived politically unpalatability.  I propose that these norms firstly need to be “undone” to allow for any livestock solutions for climate to be effective. Of paramount importance is respecting important interlinked socio-economic goals, such as food security.

As a result, developed nations with more capability and resilience to shifts in agricultural norms and markets should be leading the way for reform and the introduction of new climate norms in the agricultural sector. Even with greater capabilities and resilience, the political barriers to this transformation of the food system are likely to be high – given the stakes that are at cost, such as farmer livelihoods. Support needs to be provided through market shifts and diversification to minimise the human impacts of transforming livestock systems. Regardless of its complexities, the role of law cannot be underestimated in livestock system transformation given its history. Moreover, while climate change mitigation law has a role to play, broader regimes will need to be engaged for meaningful transformation of the livestock sector.