By Jeremy Deaton
Climate advocates have battled long and hard to pass major legislation to rein in carbon pollution, and they have repeatedly come up short even when Democrats have controlled both houses of Congress, and even in deep-blue states like Washington and Oregon. So the climate movement has adopted a new mantra — when all else fails, sue.
Young Americans are suing the federal government and several U.S. states for failing to deal with climate change and, in so doing, infringing on their constitutional right “to life, liberty and the pursuit of happiness and property.” At the same time, several U.S. cities, including New York and potentially Los Angeles, are suing fossil fuel companies for damages inflicted by climate change, mainly flooding caused by sea-level rise.
While recent suits tend to focus on the effects of climate change on property, climate change also poses serious risks to human health. “Those lawsuits don’t explicitly call out health but, if they did, they might have a stronger leg to stand on,” said Sabrina McCormick, professor of public health at George Washington University and lead author of a new study on the role of health in climate lawsuits.
“What we’re seeing is that health, as a damage, could be considered even more powerfully by the courts than, say, property damages,” she said. Research shows that burning fossil fuels can aggravate illnesses like asthma, bronchitis, and heart disease in the short term, and distort the climate in the long term, doing further harm to human health. Hotter temperatures, for example, will worsen air pollution, extend the range of vector-borne diseases, and drive up the risk of dehydration, heat stroke and death.
McCormick, along with a team of scholars at George Washington University, evaluated nearly 900 court decisions from 1990 to 2016 related to climate change and coal-fired power plants and found that health featured in just 16 percent of those cases. Researchers also interviewed dozens of scientists, advocates, and legal experts involved in key climate lawsuits. They discovered that, while litigants who raise the issue of health are no more likely to win their case than litigants who do not, invoking health strengthens climate lawsuits in two significant ways.
First, a plaintiff may gain standing by demonstrating that his or her health has suffered as a result of air pollution. Once in court, the study noted, they may “make legal claims that are not related to the nature of the injury relied on to support standing.” In other words, it’s possible to gain standing by showing how a particular coal-fired power plant threatens one’s health, and then later explain how that power plant is distorting the Earth’s climate.
Second, arguments around public health play well in court. Asked which climate lawsuits were most effective, one expert interviewed for the study said, “Cases with very compelling human stories … like a coal plant burdening lots of neighborhoods with massive amounts of pollution.” These stories are often easier to grasp than stories about the future impact of climate change. Study after study after study has found that the public feels more concerned about climate change when it is presented as an urgent matter of public health.
McCormick said that judges appear more comfortable ruling on matters of public health than litigating climate science. In a landmark case on the EPA’s role in regulating carbon pollution, Supreme Court Justice Antonin Scalia famously said, “I told you before I’m not a scientist. That’s why I don’t want to have to deal with global warming, to tell you the truth.” When jurists don’t want to reckon with science, it’s bad news for climate lawsuits.
“I tend to think that our judiciary is generally not very educated about climate change, and for that reason, they tend to want to defer,” McCormick said. “They want to say, ‘That’s a political question. EPA has already looked at that. I’m not a scientist.’” It would be better, she said, for litigants to speak about public health.
McCormick believes the paper is a call to action for researchers to “think about what science is relevant in the court of law.” Climate lawsuits have relied heavily on science attributing extreme weather and sea-level rise to carbon pollution from cars, trucks, planes, and power plants. Further research into climate-related threats to public health, the study notes, may provide “evidence to agencies or courts about the nature and importance of those links. The courts have been receptive to such efforts, at least in some contexts.”