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

life, liberty and security of person”—rights which climate destructive actions explicitly threaten. Yet “environmental law continues to struggle with the complaint that it re-articulates some of the patterns of colonial exploitation in environmental terms”, most notably by treating nature’s resources as mere commodities and by failing to provide an enabling framework for indigenous populations to regain rightful stewardship over their lands [50]. Hence, reconciling environmental and human rights law remains an ongoing process, one which will arguably be central to creating a health-friendly legislative environment in the years to come. On a national level, Environmental Law consists of statutes, regulations, applied common law, and in some countries, constitutional provisions. Currently, 155 countries have binding legal obligations to respect, protect and fulfill the right to a healthy environment [51]. Environ- mental rights consist of procedural rights (e.g. access to information, access to justice, right to participate in environmental decision making) and substantive rights (i.e. civil and political, economic and social, cultural, and collective rights) which implicate legal requisites to prevent- ing environmental degradation [51]. Mapping the landscape within which environmental health features in international law also requires an understanding of International Health Regulations (IHR) which, in principle, embody a legal commitment of governments to respond to environmental health threats. The

IHR are legally-binding for all 194 WHO member states and include requirements to report public health events with potential to cross borders and to maintain core capacities for pre- paredness, surveillance and response [52]. Consequentially, it can be said that obligations under the IHR imply a commitment to sound governance in response to environmental health emergencies which, by nature, have high potential to transcend international borders. Climate change litigation Litigation is defined as “the act, process, or practice of settling a dispute in court of law” [53]. What is often disputed in climate litigation, is whether governments or market actors are ‘miti- gating, regulating or adapting’ industrial activity which causes climate change. According to the IPCC [54], system change is required across all industrial sectors to substantially reduce greenhouse gas (GHG) emissions. Litigants and lawyers use such statements to support liti- gation and in recent years, individuals and communities have aligned their causes of social, human and economic justice with environmental and climate justice. Indeed, the Paris Agree- ment notes “the importance for some of the concept of climate justice, when taking action . . .” [37]. Legal Liability is defined as the “responsibility that someone has for their actions, for example the responsibility to pay another person for harm or damage that is the result of these actions” [55]. Climate laws and policies create new legal liability for market actors, but there is increasing

evidence that polluting industries impose health burdens on their neighbors and that these risks are higher for black, brown, indigenous and poor communities [56]. As indicated in the cases discussed below, liability is sought not only using climate statutes, but using all areas of the law including corporate, financial, constitutional, and human rights. Given the empirical grounding of CCL, climate attribution science is now playing an increasingly important role. By adopting epidemiological methodologies of quantifying pro- portional risk, climate attribution science “aims to establish the relationship between anthro- pogenic emissions and specific extreme weather events” [57]. As climate science has matured in the past decade, climate attribution methodologies are now increasingly capable of provid- ing evidence to demonstrate causation and responsibility. By calculating the strength of the causal relationship, attribution studies bolster empirical arguments underpinning legal claims PLOS ONE Public health as a legal tool in climate litigation PLOS ONE | https://doi.org/10.1371/journal.pone.0268633 June 15, 2022 5 / 31