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

The role of public health in climate litigation Climate litigation through a public health lens. Despite growing awareness of health impacts of climate change, the public health lens is yet to be widely adopted by plaintiffs. Our study revealed that only 65 (3.96%) of the 1641 cases used a litigation strategy which included climate change at the center, with extensive use of the word “health” mentioned in the case file submitted to the court. We identified a rise in explicitly health-linked cases over recent years. This rise is consistent with the general increase in litigation cases and is not specific to liti- gation pursued on public health grounds. In their study on the role of health in climate litigation, McCormick et al. (2018) found that the Clean Air Act (CAA) was used to support 32% of all cases in the US in which litigants relied on health concerns to support their claims [100]. Interviews with plaintiffs revealed that their primary incentive for pursuing cases under the CAA was that, unlike laws such as the California Environmental Quality Act and the National Environmental Policy Act, the CAA has the protection of public health as its principle goal [100]. This shows that where health is the main focus of a given legal doctrine or environmental regulation, there exists a more direct and powerful avenue for individuals to pursue litigation on the basis of health concerns. Receptivity of courts to public health-framed argumentation. Amongst the 65 directly health-linked cases, there were 11 wins, 11 losses and 43 remain undetermined. The low num-

ber of directly health-linked climate cases and the number where decisions are pending, pre- cludes accurate assessment of trends in the receptivity of courts to public health-framed argumentation. The early successes, such as Urgenda Foundation v State of the Netherlands (Table 1, case 1) and other cases are testament to the potential power of public health claims in legal argumentation, yet it remains premature to conclude whether or not public health argu- ments presented to courts will be seen with the credibility and weight that they warrant. Nonetheless, one may postulate that as climate-health science matures, making clearer the links on which legal claims rest, the receptiveness of courts to public health language may rise. While McCormick et al. found that cases in which health was an issue had a win rate nearly the same as that for non-health cases (31% and 30%, respectively) [100], claims made by liti- gants attested to the perceived power of health risk attributions in legal argumentation. As stated, many litigants were “motivated to include health allegations in climate cases because they make the consequences of unabated climate change tangible and may increase the chances that courts will grant the relief sought by satisfying the substantive criteria needed to achieve success on the legal merits of the claim” [100]. Additionally, McCormick et al. noted that several cases in the database that centered on claims about contaminated water and used health as a central argument were won by plaintiffs seeking improved protections for local communities [100].

We contend that health ought to have a bearing on court rulings given the inherent political salience it holds. In his review of fishery management law, Craig (2014) argues that when it comes to advocating for laws targeted at ocean-focused climate change adaptation, a public health connection can provide “a political saliency and importance that is often otherwise missing” [101]. Likewise, Nosek (2018) argues that, so long as health threats in litigation cases can be proven as imminent and knowingly created, debate should naturally “shift towards the neces- sity of intervention by government and industry officials” [102]. Attribution and climate-health science. Litigation rests fundamentally upon the ability of the plaintiff to link the accused actions to evidence-backed consequences. Climate attribu- tion science offers the ability to prove causation and is now viewed as a central ingredient for success. Contemporary use of extreme event modelling and the accessibility of this data to the PLOS ONE Public health as a legal tool in climate litigation PLOS ONE | https://doi.org/10.1371/journal.pone.0268633 June 15, 2022 19 / 31