Climate crisis: ‘right to healthy environment’ fills causal gap in climate litigation

Polly BotsfordThursday 21 March 2024

In February, the US Department of Justice (DoJ) was denied a stay in the long-running climate case, Juliana v US. In the case, 21 youth plaintiffs are arguing that the federal government violated their Fifth Amendment constitutional right ‘to life, liberty and property’. It’s the latest interim proceeding in the claim, which has been running since 2015 and which the DoJ has argued should be dismissed.

The case is a high-profile example of climate litigation that cites, amongst various legal arguments, the concept of the ‘right to a clean and healthy environment’ as a springboard for a claim. This concept is distinct from other established human rights, such as the right to life and liberty. Juliana v US pushes the right quite considerably by arguing that the US Constitution ‘guarantees the right to a stable climate system capable of sustaining human life’ and that the government has failed to protect that right through the continued authorisation and subsidisation of fossil fuel extraction and consumption. The DoJ, meanwhile, argues that the issues at the centre of the case are ‘significant matters of policy that are properly committed to the political Branches.’

Two similar claims are running at a state level in the US. In Held v Montana, a group of 16 young people argue that the state is violating their right under its own constitution to a ‘clean and healthful environment’. So far, Montana’s argument has been that even if it stopped allowing carbon dioxide emissions, this wouldn’t have any meaningful impact on the climate crisis in general. The case is now heading to Montana’s Supreme Court. Elsewhere, another youth case, Navahine F v Hawai’i Department of Transportation, will be heard in July.

Outside of the US, some 36 climate litigation cases specifically raise the right to a healthy environment, according to the database of the Sabin Center for Climate Change Law at Columbia Law School. Although 36 isn’t a huge number in relation to climate cases as a whole – which total around 2,000 – the concept of the right to a healthy environment is ‘gaining traction’ among human rights-based climate cases, says a report by the London School of Economics’ Grantham Institute on Climate Change and the Environment. Indeed, there were around 13 ‘right to a healthy environment’ cases from 2011 to 2020, but this number has already been surpassed between 2021 and 2023. Academics have described the right as a ‘game-changer’.

You can see these cases at a symbolic level. You may not bring about direct change, but it […] can help shape climate policy

Wilhelm Bergthaler
Co-Chair, IBA Environment, Health and Safety Law Committee

The concept was given a significant boost in summer 2022 when the UN General Assembly (UNGA) passed a resolution declaring a ‘clean, healthy, and sustainable environment’ to be a human right. Although not legally binding for the UN’s 193 member states, it’s anticipated that the resolution will become an integral part of international human rights standards. However, at this point in time, ‘it is too early to tell whether or not the UN’s specific declaration is having an impact’, says Corina Heri, a postdoctoral researcher at the University of Zurich’s Faculty of Law, who co-organises the human rights database of the institution’s Climate Rights and Remedies Project.

As Juliana v US and the American state cases demonstrate, plaintiffs are relying on the right embedded in existing domestic legal protections as the basis for these climate cases, and not the UN resolution. According to a report by the UN Special Rapporteur on Human Rights and the Environment, 80 per cent of UN member states – amounting to 155 countries – have some form of legal protection for the right to a healthy environment in their domestic law.

The right has already formed the basis for national cases in Latin America, says Catherine Higham, a policy fellow at the Grantham Institute, ‘where many countries have the right to a healthy environment enshrined in their constitutions, pre-dating the recognition of the right to a healthy environment at the UNGA’.

In 2018 in the case Demanda Generaciones Futuras v Minambiente, Colombian youth plaintiffs successfully argued in the country’s Supreme Court that their government’s failure to reduce deforestation and enforce compliance with zero-net forestation in the Colombian part of the Amazon by the year 2020 was a threat to their right to a healthy environment, life, health, food and water under Colombian domestic law.

The attraction of the concept of the right to a healthy environment for climate cases is that it fills a causal gap. For most such litigation cases, plaintiffs must show that climate change directly leads to detrimental impacts on their own health and lives. This is difficult, because medical and scientific evidence on the climate crisis tends to be general rather than specific to them. With a more general right to a ‘healthy environment’, the causal link is easier to establish. ‘The right makes environmental harm directly actionable, without an intermediate need to prove an impact on health or life or property or other right or interest’, explains Heri.

In a recent paper, academics reviewed 19 ‘right to a healthy environment’ cases that had been decided as of early 2023. Of these, 15 were successful – a higher amount compared with rights-based climate cases more generally, which, broadly speaking, fail more often than not.

‘Right to a healthy environment’ cases form an increasingly important subset of human rights-based climate litigation. Human rights are often the last resort where claimants cannot access other remedies. In the future, however, human rights-based climate cases may become less common, as Matthias Lang, Vice-Chair of the IBA Energy, Environment, Natural Resources and Infrastructure Law Section and a partner at Bird & Bird in Düsseldorf, highlights. ‘As the legal architecture surrounding climate change becomes more articulated and sophisticated, claimants may not need to rely on human rights – there will be more national provisions or established constitutional rights they can engage with’, he says.

For now, however, human rights-based cases are increasing as claimants hope to influence government policy on mitigating against the climate crisis or on adaptation. These claims attract media attention and can mobilise climate activism. According to Wilhelm Bergthaler, Co-Chair of the IBA Environment, Health and Safety Law Committee and a partner at Haslinger / Nagele in Vienna, ‘you can see these cases at a symbolic level. You may not bring about direct change, but it could force politicians to act, and can help shape climate policy’.

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