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

Climate litigation against ‘carbon majors’ due to public health impact. Litigating against corporations so that they bear the liability for harm to public health is another means to internalize the costs that these companies are currently externalizing. In 2020, a series of cases [113–116] were brought by US states against oil companies, using arguments similar to those used to curtail the tobacco industry for its devastating impact on public health [117]. In an ongoing case, Washington DC (AC Racine v Exxon/BP/Shell/Chev- ron) [118], the defendants are accused of “systematically and intentionally misleading the pub- lic about the central role their products play in causing climate change, one of the greatest threats facing humanity”, including through coordinating campaigns of disinformation. In City and County of Honolulu v Sunoco oil [119], the claim is that not only have “Native Hawaiian cultural sites, built structures, natural resources, and infrastructure including roads, sewerage, and beach parks, and other resources been more frequently flooded and, in some cases, inundated”, but oil companies knew the climate science, and impending harm to public health since the 1950’s. The state is thus seeking financial compensation for losses, which illus- trates how the courts are asked to price the impacts of climate change. In this way market forces incentivize adaptation of corporates’ business model and capital away from harmful activity [120, 121]. The courts play a central role in deciding how quickly

new legal incentives are integrated into legal systems, and these cases may become important milestones. Prioritizing health above economics. Legal epidemiology is the study of law “as a factor in the cause, distribution, and prevention of disease and injury” [122]. The impact of tax and employment law on public health [123] has been studied. In the 65 public health cases included, there is an expectation from plaintiffs that government and economic actors will pri- oritize human health and planetary survival over economic profit. In the case of Youth Verdict v Waratah Coal, youth argue that the government has a duty of care to protect the health of its citizens. Further, in the 2020 ruling on modification to ethanol [124], the Mexican Supreme court decided an agency was restricted from raising the ethanol content in fuel, as the ‘right to a healthy environment’ must be prioritized over economic profit. Research has shown that “carbon-only” approaches to mitigating climate change that do not explicitly integrate air and water pollution and environmental justice considerations could fail to alleviate the public health harms and disproportionate burdens of fossil fuel production and use or even exacer- bate them [56]. Considering that in response to the Covid-19 crisis, many (though not all) gov- ernments acted forcefully to prevent a public health emergency, including by deprioritizing the economy, it is likely that the expectation of prioritizing planetary health will only rise. With global fiscal support for the pandemic already amounting to a sheer $9 trillion by April

2020 [125], the Covid-19 crisis also further demonstrated the financial capacity for large-scale investment when imminent threats arise. At a minimum, to prevent a climate-health crisis, there is an expectation for the risk to be fully priced into the financial markets. Yet, eco-centric laws can go further. The concept of ecocide is a way of protecting the environment and health, which goes beyond civil liability, and makes it a crime to harm nature [126]. As highlighted in the 2020 status report on global climate litigation, there is mounting evidence of an increased appetite by the general public to crack down on corporate irresponsibility, requiring greater climate disclosure and an end to “corporate greenwashing” on the subject of climate and the energy transition. Recommendations As the climate-health crisis further intensifies in the coming years, the expansion of legal chan- nels for halting and prosecuting climate-destructive, health-threatening operations 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 22 / 31