Backlash – CP just triggers pre-emptive action from other branches. Industry will also push back.

As Benjamin Ewing and Douglas Kysar have written, government actors should “perform[] their official roles with a self-conscious appreciation for the ways in which they can signal to other institutional actors that a given problem demands attention and action.”175 They can use “prods and pleas” to combat “government underreach,” much as they can use checks and balances to regulate government overreach.176 This dynamic can become even more powerful when multiple levels of government act simultaneously.177The “exceptional” status of agriculture under federal environmental law is, as J.B. Ruhl has argued, highly questionable. Farming operations contribute significantly to the environmental harms that other industries alone are tasked with remediating. If public nuisance suits open the doors to liability for environmental harms flowing from agricultural activities, history may repeat itself and the agricultural industry may seek out preemptive federal regulatory legislation that both protects the industry and ensures a baseline level of control over the environmental harms that farms create.178 Courts’ ability to find and remedy liability can amount to an intolerable change to the policy status quo (from the perspective of producers of meat) which may induce coordinate branches to take up the problem, and when they do, national regulatory policy will be up for debate. 2. Encouraging and Accelerating Change in the Industry Another major indirect effect of even the possibility of exposure to liability is that it can spur innovation and self-regulation, whether in an attempt to appeal to niche markets or to limit risk.180Indeed, the deterrence theory of torts is premised on the hope that exposure to liability will encourage potential defendants to avoid harms ex anteby taking adequate precautions.181In many ways, the potential for liability for public nuisance for contributing to climate change through meat production would only reinforce larger market trends that are promising to fundamentally change the animal agriculture industry. Cell-cultured meat—i.e., meat grown from stem cells in a lab—appears to be on the verge of marketability.182 Such meat would have an estimated 7 to 45 percent reduction in energy use, a 78 to 96 percent reduction in greenhouse gas emissions, a 99 percent reduction in land use, and an 82 to 96 percent reduction in water use.183In fact, incumbent meat industry leaders have recently begun investing in the technology.184 Short of a shift to cellular agriculture, there are ample opportunities for cutting emissions from the supply chain of meat production. The United Nations’ Food and Agriculture Organization has outlined a suite of technologies and practices that increase the efficiency of animal agriculture.185 Implementing them across the industry could reduce emissions by 30 percent.186All these adaptations would tend to limit firms’ exposure to liability. Consequently, one way to speed the transition would be to heighten the incentives to avoid liability, thereby increasing the incentives to find inefficiencies and remedy them.