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

North America (including Canada) has passed only 33 climate laws and policies, which is sig- nificantly less than the 677 passed in Europe and Central Asia. Whilst outside the scope of this study, analyzing the relationship between existing legal frameworks, breaches of these and numbers of cases brought before courts is an area worthy of further research. The total rise in cases is due largely to the recently documented increases in annual liti- gation occurring in the US and in a select few other jurisdictions including Australia, New Zealand, the European Union, Spain, and the United Kingdom [87]. However, litigation may indicate that there are political, cultural or other obstacles to climate justice in a particular jurisdiction. In Juliana v United States (Table 1, case 7), despite a 38-page submission by lead- ing public health experts stating that “without significant intervention, this new era will come to define the health of an entire generation”, the court declined to directly adjudicate on cli- mate change. The court explained the adjudication did not refute the science, rather recoiled from passing a political ruling in the following statement: “There is no justiciable ‘controversy’ when parties seek adjudication of a political question. . . It is not the province of the judiciary to make the policy decisions required to grant Plaintiffs the relief they seek. Nor may this Court direct other branches of government to overhaul their fossil fuel, agriculture, logging, and family planning policies to address climate change. To suggest otherwise is to overlook

‘the separate and distinct constitutional role’ of the judiciary” [81]. This ruling may yet be overturned on appeal, but the judges of this case interpreted the constitution so as to hold that climate policy must arise from the legislative and political process, and not the judiciary. Scholars have highlighted that the role of the global South in climate litigation should not be overlooked. We find this contention meritorious because, despite the relatively low num- bers of cases from LMICs, many, most notably in Colombia, Ecuador, Bangladesh and India, were eco-centric cases brought against powerful companies. The important context here is that the 52 LMICs produced a fraction of the total 2020 CO2 emission [88], yet, they dispro- portionately bear the brunt of climate change impact and a higher risk of climate-driven health threats. Therefore, it is particularly salient for LMICs to use legal arguments based on climate injustice and vulnerability. Finally, our finding that a growing number of cases are being brought by individuals (for instance as class-action lawsuits) provides further evidence of an increasingly “bottom-up approach to climate governance” [86]. From a pro-health standpoint, this can be viewed as an indication of rising public awareness of the threat of climate change and an accompanying realization by individuals and civil society of their democratic right to hold corporations and governments accountable for actions which infringe their rights to a healthy environment.

Our analysis of litigation outcomes shows marked heterogeneity. Increased pressure on legisla- tures and corporations to change their behaviour is clearly evident, yet many courts remain slow to take the fullest action that the science calls for. Trends suggest this pressure is likely to increase this decade. Still, early successes particularly in the field of human rights give reason for optimism; amassing a folio of successful litigation that translates to pro-health and pro-environment pol- icy can be expected to motivate others to bring forward cases citing egregious occurrences or prospects of harm. Temporal and geographic trends in legal argumentation Climate change as a peripheral vs. core issue. Climate Change Litigation (CCL) has gained prominence over the past three decades as a “governance mechanism for addressing climate change” [61]. In the late 1980s and early 1990s in the United States, climate legal action began as a means to hold actors accountable for activities knowingly contributing to GHG PLOS ONE Public health as a legal tool in climate litigation PLOS ONE | https://doi.org/10.1371/journal.pone.0268633 June 15, 2022 16 / 31