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

court plays a large role in determining the “attributable risk” of scrutinized actions in climate litigation [103]. With climate-health science currently increasing in strength and credibility, data-backed argumentation offers powerful leverage in future health-centred climate litigation. For exam- ple, in Neubauer et al. v Germany (Table 1, case 4), plaintiffs cite IPCC data showing the risk of death, injury, and damage to health in low-lying coastal areas vulnerable to storm surges, coastal flooding, and sea level rise. Plaintiffs cited robust evidence of the link between rising allergies and lengthening pollen seasons, between respiratory diseases and both ragweed blooms and flood-induced indoor mould growth, and storm/flood disasters and psychological trauma. This is supported by the conclusion drawn by McCormick et al. (2018) that “the strength of the scientific evidence mustered to support litigants’ challenges is likely to be an important determinant of case outcomes” [100]. Cases reviewed by McCormick et al. [100] revealed that climate science was only occasion- ally a central part of the court decisions. This indicates the existence of competing factors which weigh into the decision-making on legal outcomes. Thus, to strengthen the relative weight placed on scientific evidence in legal decision-making on climate litigation, an argu- ment can be made that emphasis should be put on the most scientifically sound, and socially, politically, and economically salient points, backed by expert testimony and robustly generated

syntheses of the literature. An additional requirement may be for evidence to show that health risks are imminent, since it has been shown that the narrative of climate risks being distant in space and time dilutes the urgency to act now or the credibility of climate risk allegations [102]. With regards to leveraging the insights, research, and testimony of public health experts in climate litigation, it is worth noting the possibility of COVID-19 having opened a policy win- dow for such action. Undoubtedly, COVID-19 has raised the profile of public health expertise and the value of epidemiology. Thus, public health expertise may be accorded rightful recogni- tion in courts of law in a post-COVID-19 era, something which can and should be exploited in upcoming climate litigation. Economic incentives as a barrier to or incentive for public health Financial liability and public health. The case law brings forward economic and finan- cial considerations, presenting as either incentives or barriers to ‘adaptation and mitigation’, accompanied by liability for market actors. This can give rise to climate laws and policies, that are concerned with “mitigating, adapting and regulating” industrial activity which causes cli- mate change. Whilst the unmitigated consequences from climate change are catastrophic, a hesitance persists in some courts to “overhaul industries”, as indicated by the Juliana case [67]. Despite pledges by many corporations to reach ‘net zero’ emissions by 2050, there is not yet any con-

tractual or legal obligation to enforce this. The agreement at COP26 to establish rules for a global voluntary carbon market also raises complex issues about the ethics of carbon offsetting, and whether access to finance comes with a human rights and health cost for local and indige- nous communities in low-income countries [104]. The evolving link between financial systems, climate change, and the public health cost, is an important indicator in climate litigation [105]. It is extensively documented in the publica- tions of UNEP(FI) [106] where “climate change is referred to by leading economists as the greatest market failure in human history”. The 2020 EU taxonomy regulation on sustainable finance, is framed along the same lines as ‘climate law and policy’, namely objectives of Climate change mitigation, Climate change adaptation, Sustainable use and protection of water and PLOS ONE Public health as a legal tool in climate litigation PLOS ONE | https://doi.org/10.1371/journal.pone.0268633 June 15, 2022 20 / 31