Legal implications of the climate-health crisis: A case study analysis of the role of public health in climate litigation

industrial levels, providing more legal leverage for plaintiffs suing purely on the basis of GHG emission exceedances [85], and 2) the landmark judgement delivered in the Urgenda case where a class-action brought by 886 Dutch citizens resulted in a court order for the Dutch gov- ernment to adopt a more ambitious emission reduction target [86]. The momentum created by the success of Urgenda (Table 1, case 1) led to similar cases emerging in the domestic tribunals of several jurisdictions all over the world, ranging from Belgium to France and South Korea, beginning what has been referred to as the “new wave” of climate litigation [86]. Despite the trend in plaintiffs using litigation as a legal tool for climate action, it remains unclear, from our results and other studies [84], to what extent climate litigation generates new government legislation or policy. This uncertainty is especially pronounced among LMICs, where the frequency of filed cases remains extremely low, representing only 2% (n = 35) of the 360 non-US cases. Notwithstanding the relatively high volume of litigation, Table 1. (Continued) Case No. Plaintiff v Defendant Court and Year Case Filed Brief Case Description and Outcome (If Available) # Times Health Mentioned Example of Health Term Usage 7 Juliana v United States [81] United States Court of Appeals for the Ninth Circuit, 2015 (decided 2020) Case: In a split decision, the Ninth Circuit Court of Appeals ruled that young people and other plaintiffs asserting a claim against the federal government for infringement of a Fifth Amendment due

process right to a “climate system capable of sustaining human life” did not have Article III standing. Outcome: Decided against the Plaintiff. Petition for re- hearing has been submitted. 9 “In these proceedings, the government accepts as fact that the United States has reached a tipping point crying out for a concerted response—yet presses ahead toward calamity. It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses. Seeking to quash this suit, the government bluntly insists that it has the absolute and unreviewable power to destroy the Nation” STATON, District Judge, dissenting against the majority ruling. 8 UN Human Rights Committee Views Adopted on Teitiota Communicatio [82] United Nations Human Rights Committee, 2015 (decided 2020) Case: On September 15, 2015, Teitiota filed a communication with the UN Human Rights Committee, alleging that New Zealand had violated his right to life under the International Covenant on Social and Political Rights. The New Zealand Supreme Court had decided that the applicant did not qualify as a climate refugee under international human rights law. The Committee ruled that an arbitrary deprivation of life must be personal rather than rooted in the general conditions of the receiving state. Outcome:Case dismissed on merits. 21 “It would indeed be counterintuitive to the protection of life, to wait for deaths to be very frequent and considerable; in order to consider the threshold of risk as met. It is the standard upheld in this Committee,

that threats to life can be a violation of the right, even if they do not result in the loss of life. It is should be sufficient that the child of the author has already suffered significant health hazards on account of the environmental conditions”, dissenting judgement. 9 Milieudefensie et al. v Royal Dutch Shell [83] Netherlands, The Hague, District Court, 2019 Case: This case built on the landmark Urgenda decision which found that the Dutch government’s inadequate action on climate change violated a duty of care to its citizens. In the suit against Shell, plaintiffs extend this argument to private companies, given the Paris Agreement’s goals and the scientific evidence regarding the dangers of climate change.Outcome: Defendant Shell must reduce carbon emissions by 45% by 2030 relative to 2019. 77 “Humans depend on healthy and sufficiently vital ecosystems for their lives and well being, that can provide such ecosystem goods, functions, and services that humans need for their existence, in a sufficiently reliable manner. Climate change is a threat to ecosystems and therefore a threat to human life and well- being” https://doi.org/10.1371/journal.pone.0268633.t001 PLOS ONE Public health as a legal tool in climate litigation PLOS ONE | https://doi.org/10.1371/journal.pone.0268633 June 15, 2022 15 / 31