Document Type



Nevada Law Journal




Regenerative agriculture—a farming practice that sequesters atmospheric carbon dioxide (CO2) into the soil—has potential to turn into big business in this climate crisis. If farmers can accurately measure the amount of trapped carbon in their soil, they can sell that stored carbon as a “carbon credit,” a tradeable certificate representing the right to emit one metric ton of carbon dioxide (CO2) or the equivalent amount of another greenhouse gas. As more than seventy countries race to cut greenhouse gas emissions by 2050 in order to meet Paris Agreement1 goals, carbon credits are becoming the “new currency” to meet or exceed national and global targets. Carbon credits can also reduce exposure to legal liability from shareholder misrepresentation, fraud and greenwashing claims that may arise when firms advertise corporate environmental, social, and governance (“ESG”) policies.

While regenerative agriculture is gaining momentum, investors are cautious about the carbon sequestering potential it holds. Of the top one hundred food companies in the world, fifty-eight are working on regenerative agriculture projects to sequester carbon—either as small pilots, by meeting specific acreage targets (like General Mills, Pepsi, and Cargill), or by tying them to larger business strategies (like Nestlé).2 All the while, critics say that carbon sequestration projects are ‘unquantifiable,’ ‘unreliable,’ and evidence of ‘greenwashing.’

If regenerative agriculture is to play a larger role in helping the US reach a goal of “net-zero” by 2050, regulations are needed to reassure buyers that carbon credits from carbon sequestration are measurable and verifiable, and to reassure sellers that their interests will be protected. Regulations are necessary to: (1) raise market confidence by reducing information asymmetry in contracting, (2) provide a uniform definition and standards for regenerative agricultural practices, (3) improve measurements of regenerative agriculture outcomes and soil carbon, and (4) require public companies to disclose the role that carbon offsets play in their climate-related business strategy. Filling gaps in food law and environmental governance literatures, this Article is the first to analyze the carbon market using case studies from food market participants. The Article proposes regulatory changes to help mitigate the risks associated with the trading of carbon credits. This Article is timely, arriving when America’s recommitment to the Paris Climate Agreement is setting the stage for a new emissions accounting era.