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Public Health, Climate Change and Strategic Litigation

Date:03 December 2021

By David Patterson LLM. MSc.PhD. Candidate
Global Health Law Groningen Research Centre, d.w.patterson@rug.nl

The following article was orginally published on the blog 'Better Health For All', on November 24, 2021. For more information, see: https://betterhealthforall.org/2021/11/24/public-health-climate-change-and-strategic-litigation/

Mosquitoes winging their way north across Europe bringing dengue. Floods and drownings. Heat stress. Despair. We are all aware of the health impacts of climate change. But how do we get governments to act? Ballot box pressure (in democracies) does not guarantee results as shorter-term concerns distract from our overheating planet. No easy answers, but experience from the environmental movement provides clues and inspiration.

On 7 October the Faculty of Public Health co-hosted a webinar on  Public Health, Climate Change and Strategic Litigation  (recording now available online). It aimed to alert public health academics and practitioners to the opportunities for legal action to hold governments and private sector polluters to account for health-harming pollution and climate change.

Moderated by Dr Farhang Tahzib, the webinar attracted over 800 registrations from around the globe. Starting close to home, Rosamund Adoo-Kissi-Debrah recounted how air pollution in London led to the death of her daughter, Ella. Sir Stephen Holgate gave expert testimony at the coronial enquiry into Ella’s death. He noted how air pollution is now largely invisible and hence neglected – yet ‘breathing clean air is a right, just as we have the right to clean water.’ Dr Maria Neira, WHO’s climate change and health champion, presented the ‘health argument for climate action’ that WHO will take to CoP26.

But governments have long been aware of the short- and long-term health impacts of pollution. What else can be done? Strategic alliances between public health actors, environmental activists and legal academics and practitioners are using court action to highlight government inaction and industry abuses. Marlies Hesselman, lecturer at the University of Groningen, Netherlands, gave a ten-minute ‘strategic litigation 101’, noting four recent and current cases where governments have been called to answer before international courts and tribunals for health harms related to climate change. Irmina Kotiuk, senior lawyer with ClientEarth’s Clean Air Program, noted the huge role for public health specialists as  experts  in strategic litigation – building on the experience of tobacco and asbestos. She urged nurses and doctors to collect and record evidence in medical files which can later be used in expert testimony.

Richard Harvey, barrister and legal counsel for Greenpeace, drew parallels between tobacco companies’ now infamous denials of the link between smoking and ill-health, and today’s spin from fossil fuel companies. The Dutch District Court in The Hague was not fooled – in a landmark 2021 decision it ordered Shell to reduce CO2 emissions by 45% by 2030, globally. Dr Marina Romanello, Research Director for  Lancet  Countdown, reiterated the health impacts of climate change and the continuing financing of the destruction of our health through fossil fuel industry subsidies.

Yet the   Lancet  Countdown 2021 report  on health and climate change: code red for a healthy future, makes no reference to the role of the law (other than to the International Health Regulations), let alone to the hundreds of current and recent legal cases on climate change alone, easily searchable through  online databases. Restating the problem in ever greater detail is not a strategy for change. We need to combine the credibility of hard science with the legal skills of seasoned national and international litigators and the experience in social mobilization tested and proven by other social movements – all adapted to today’s online, COVID-19 constrained world. Dr Neira remarked that ‘People working in the environment say we need to hear more from the public health community – because you are still trusted – politicians will listen to you.’

Bridges between the public health, environmental and legal communities must be strengthened if we are to ‘keep 1.5 alive.’ The 7 October webinar was co-hosted by the  Global Health Law Groningen Research Centre  and the ‘law and public health’, ‘environment and health’ and ‘ethics and public health’ sections of the  European Public Health Association.  Section membership is free and not limited to public health practitioners or people resident in Europe.