Public Health Law and Climate Change

Contents

    You are viewing part of the Law and Climate Atlas


    Executive summary

    Climate change and public health are closely linked, especially when taking an expansive definition of health that accounts for general wellbeing and looks beyond simply avoiding disease and injury.[1] Chronic and acute physical impacts of climate change can have significant impacts on human health and wellbeing, a link that is well-explored by leading bodies such as the Intergovernmental Panel on Climate Change. These impacts may be increasingly disruptive to public health systems, which are already tested by higher temperatures and extreme weather events. Although the health implications of climate change understandably receive the most attention, the relationship between public health and climate change cuts both ways. The NHS is responsible for around 4% of the UK’s emissions,[2] a similar figure to the cumulative impact of health systems globally.[3] Emissions in the health system may originate from sources common to other large organisations, such as buildings and vehicles, but also from specific medical activities or devices like anaesthetics and inhalers.

    Any policy or legal lever that reduces emissions or helps society adapt to climate risks may, in turn, also help to avoid negative health impacts from climate change. Health impacts may, however, also be considered more specifically as a basis for action. This might be as grounds for litigation, or as reasoning for regulation. Further, specific changes to health-related rules may help to minimise climate-related health impacts and mitigate emissions caused by the public health system.

    • The risk climate change poses to human health has been called ‘the biggest health threat facing humanity’, and is likely to grow in magnitude as greenhouse gas emissions increase.
    • As activities that drive climate change are often linked to air pollution, climate change policy may have the co-benefit of reducing air pollution and mitigating its impacts on human health, including respiratory diseases and other serious illnesses.
    • Although the right to health is not explicitly protected under the European Convention on Human Rights, health issues linked to climate change have been the subject of litigation before the European Court of Human Rights where Article 2 (Right to Life), Article 8 (Right of Respect for Private and Family Life), and Article 14 (Prohibition of discrimination) have been invoked.
    • As a major contributor to the UK’s greenhouse gas emissions, the NHS has a role to play in tackling climate change as recognised by Section 9 of the Health and Care Act 2022, and NHS England’s ‘Delivering a Net Zero National Health Service’ report, which now serves as statutory guidance.
    • Health experts have a vital role to play in formulating environmental policy, and in providing evidence for environmental litigation, particularly in the context of issues such as air pollution, with clear, acute health impacts.

    How climate change has impacted public health law

    Climate change as a public health problem 

    Climate change has a range of negative impacts on human health, of which are only expected to grow in scale as greenhouse gas emissions increase. In recognition of this, the World Health Organization (WHO) has labelled climate change as ‘the biggest health threat facing humanity.’[4] When categorising climate impacts, the IPCC has similarly found negative impacts on health and wellbeing through worsening infectious diseases, heat-related harm, malnutrition, displacement, and mental health impacts.[5] In the UK, an increasing number of people are being exposed to flooding, which, in addition to the acute danger that it poses, can lead to displacement and mental health impacts.[6]  Similarly, the number of heat-related fatalities in the UK is rising, all while the number of people living in urban areas, which tend to trap heat, increases.[7] Certain climate-related policy efforts, such as encouraging active transport and limiting air pollution, may also offer co-benefits for public health. 

    Activities that drive climate change are also likely to increase air pollution. A separate but related environmental issue to climate change, air pollution can cause respiratory disease and other serious illnesses. The UK has aimed to address these potential health risks through decades of public policy, having introduced the first Clean Air Act in 1956. Limits on air pollution are, of course, informed mainly by health considerations. Nevertheless, while the UK has made significant progress in reducing air pollution,[8] it remains a salient problem. In 2020, a coroner in South London found that exposure to poor air quality materially contributed to a person’s death.[9]  

    Greenhouse gases – namely carbon dioxide, methane, and nitrous oxide – are not the most significant sources of conventional air pollution, however, many activities that cause greenhouse gas emissions also tend to cause particulate matter emissions. While more targeted measures must be implemented to specifically tackle air pollution, climate policy may offer co-benefits by helping to reduce health impacts of air pollution. 

    Human rights, health and climate change 

    Human rights are increasingly being recognised as a justification for actions to combat climate change. The UK’s Human Rights Act recognises rights under the European Convention on Human Rights (ECHR). Although the ECHR does not directly protect a right to health, health-related issues may fall under other rights, in particular Article 2 (Right to Life) and Article 8 (Right of Respect for Private and Family Life). Given that health impacts often disproportionately affect specific communities or demographics, Article 14 (Prohibition of Discrimination) may also be relevant. Climate change’s health impacts mean that climate litigation and regulation may be anchored in human rights concerns. Claims taken to the European Court of Human Rights that, at least in part, rely on the health impacts of climate change’s health impacts include Duarte Agostinho and Others v. Portugal and Others [10]and KlimaSeniorinnen v. Switzerland.[11] In each case, health issues linked to climate change had affected the health of the applicants, who claimed that insufficient action on climate change had caused these issues and therefore violated their human rights. 

    Health and climate litigation 

    Climate change-related litigation is a global trend. Cases have been brought in many different jurisdictions, by and against different individuals and entities, and under various fields of law. Health impacts from climate change may be relevant to the grounds of climate-related cases. In traditional environmental litigation, health is often a relevant consideration, as acute health impacts from specific sources of pollution are common. As explored in the tort law section of this resource, climate change is caused by many different actors and has disparate effects, which can make it more difficult to find a causative link between a specific emitter and specific health impacts. Climate litigation has therefore largely dealt with health issues in broader public policy terms, or as it relates to rights

    Analyses have found that health is an important factor in a minority of climate-related litigations, generally involving climate change or human rights law, though this number is trending upwards.[12] Climate litigation can be effective even if the claimant is unsuccessful due to public awareness and reputational implications – meaning there is potential for a positive public health outcome regardless of the result of a claim. 

    NHS decarbonisation and adaptation 

    As explored above, the NHS is a significant contributor to the UK’s greenhouse gas emissions and must also deal with many health impacts from climate change. Under Section 9 of the Health and Care Act 2022, the NHS must ‘have regard to the need to’ help the UK’s national government comply with climate change targets under the Climate Change Act 2008, and broader environment targets under the Environment Act 2021. It must also ‘adapt to any current or predicted impacts of climate change’ identified in the Government’s Climate Risk Assessment which must be produced under Section 56 of the Climate Change Act. 

    In light of this legislative change, NHS England’s ‘Delivering a Net Zero National Health Service’ report, first published in 2020 (and updated in July 2022), now serves as statutory guidance. In this document, the NHS commits to two targets: reaching net zero emissions by 2040 for emissions which the NHS directly controls, and net zero by 2045 for emissions which the NHS can influence. Whilst the NHS is carrying out its legal duty in setting these targets, it is not legally bound by the targets themselves. Instead, a range of measures have been put in place to help support the NHS to meet the targets. 

    For example, at the NHS Confederation conference in June 2022, Dr Nick Watts (NHS Chief Sustainability Officer) announced that all 212 English NHS trusts had completed their “green plan” identifying how they would achieve net zero. In addition to these steps, the report emphasised that the government’s commitment to build 40 new ‘net zero hospitals’ would be achieved by applying the new “Net Zero Carbon Hospital Standard.” This standard includes the use of innovative low-carbon materials as well as a new design that caters for flexibility in use. Nonetheless, forthcoming spending reviews bring into question the likelihood of and timescales for delivering these hospitals. 

    More broadly, the NHS aims to deliver on its net zero commitments through its ‘Greener NHS Programme’ which guides centralised action, by sharing ideas adopted by trusts across the country in reducing the impact on public health and the environment, for example by encouraging staff engagement in making small changes (such as how staff travel to and from work, deploying electric vehicles, and turning off unused equipment and lights). It also provides support and funding for local initiatives. 

    The government and NHS intend to leverage public procurement to support delivery of targets, for example under PPN 06/20 and PPN 06/21, the latter of which requires suppliers with new contracts for goods, services, or works with an anticipated annual contract value above £5 million to publish a carbon reduction plan for their direct emissions. In support of this, the NHS has published a “Net Zero Supplier Roadmap” which also serves as statutory guidance and stipulates that by the end of the decade, the NHS will not be purchasing from suppliers (including law firms) who do not meet or exceed its carbon neutral commitments. Further, NHS bodies buying goods and services are relying on environmental commitments included in contracts such as the NHS Standard Contract and Model Services Contract to help them meet their targets.  

    Judicial review is a potential cause for action if the NHS, in formulating and acting on its plan, may have failed to properly have regard for the UK’s climate targets. Similar actions have been brought against other governmental bodies, for example in Friends of the Earth vs. BEIS which resulted in an order for BEIS to publish quantifications of how individual policies would reduce greenhouse gases. 

    International law 

    International organisations – in particular the World Health Organization – are also relevant to how the UK will address the health impacts of climate change, and how it may support similar efforts abroad. The UK and other UN member states are bound by the International Health Regulations (IHR), which set rules related to public health emergencies that may become international issues. These rules were invoked during the COVID-19 pandemic, but critics argue that the IHR were not as effective as they should have been.[14] This has strengthened calls for reform to the IHR – and indeed the Regulations were previously revised following the SARS epidemic in 2005.[15] If parties can agree on a revision of the IHR, this may compel the UK and other countries to take further efforts to prepare for and report on potential public health emergencies linked to climate change, including infectious diseases. Stronger suggestions at an international level include that the WHO should declare climate change a public health emergency.[16] However, the WHO currently considers climate change a risk factor to health emergencies, rather than an emergency in itself. 

    Role of public health experts 

    Health experts have been vital to both formulating environmental policy, and in providing evidence for environmental litigation. They are especially important in the context of issues such as air pollution, which have clear, acute health impacts. Health impacts now form a key part of the justification for governments to act on climate change, and health experts may face increasing calls to provide evidence to courts dealing with climate litigation. There may also be a growing dialogue between health and climate change experts on how their expertise and evidence base can impact climate-related legal cases.[17] In addition to specific instances of expert input, some authors have called for a stronger evidence base for the impacts of climate change on public health to inform policy.[18] There have been positive developments from a number of organisations, as exemplified in ShareAction’s Long-term Investors in People’s Health Initiative, which looks to support investors advocating for discussion of health impacts.

    Human rights developments 

    As mentioned above, climate-related health impacts may be relevant under rights that already exist under the ECHR. One prominent human rights suggestion, with advocates at the national, regional and international level, is for a ‘right to a healthy environment’. This right creates a clear link between the environment and public health and, if recognised, could be the main tool for climate litigants that are using human rights law. The right was endorsed by the UN General Assembly in July 2022 and affirmed in the Committee on the Rights of the Child (CRC)’s General Comment No. 26 guidance in August 2023. Chair of the CRC, Ann Skelton, has stated that this general comment “is of great and far-reaching legal significance,” [Urgent action by States needed to tackle climate change, says UN Committee in guidance on children’s rights and environment | OHCHR], as it specifies States’ obligations to address environmental degradation under the Convention on the Rights of the Child.  

    However, as the UK government noted in its speech to the Assembly in 2022, this does not have any direct legal effect and the right to a healthy environment may simply derive from other rights. The practical implications of recognising a right to a healthy environment are discussed in further detail in the Human Rights section of this resource. 

    [1] World Health Organization. Constitution of the World Health Organization. Preamble. 

    [2] NHS England. Developing a ‘Net Zero’ National Health Service. (2020). <https://www.england.nhs.uk/greenernhs/wp-content/uploads/sites/51/2020/10/delivering-a-net-zero-national-health-service.pdf> p 3. 

    [3] Josh Karliner et al. ‘Health Care’s Climate Footprint: How the Health Sector Contributes to the Global Climate Crisis and Opportunities for Action’ (Health Care Without Harm, 2019). <https://noharm-global.org/sites/default/files/documents-files/5961/HealthCaresClimateFootprint_092319.pdf>. 

    [4] World Health Organization. Climate Change and Health Fact Sheet. (WHO web site, 30 October 2021). <https://www.who.int/news-room/fact-sheets/detail/climate-change-and-health>. 

    [5] IPCC. Summary for Policymakers in Climate Change 2022: Impacts, Adaptation and Vulnerability. (2022). p 10. 

    [6] The Climate Coalition. The Impacts of Climate Change on Public Health (2021). <https://www.theclimatecoalition.org/health-report>. 

    [7] Ibid. 

    [8] DEFRA. ‘Air Quality Statistics in the UK 1987 to 2019’. (DEFRA web site, 30 April 2019). <https://uk-air.defra.gov.uk/news?view=252>. 

    [9] Philip Barlow. Regulation 28: Report to Prevent Future Deaths (2021). <https://www.judiciary.uk/wp-content/uploads/2021/04/Ella-Kissi-Debrah-2021-0113-1.pdf>. 

    [10]Duarte Agostinho and Others v. Portugal and Others (2020) 39371/20. 

    [11]Verein KlimaSeniorinnen Schweiz and Others v. Switzerland (2021) 53600/20. 

    [12] Narayan Toolan, Hannah Marcus, Elizabeth G. Hanna and Chadia Wannous. ‘Legal implications of the climate-health crisis: A case study analysis of the role of public health in climate litigation’ in PLoS ONE (2022). 

    [13] [2022] EWHC 1841. 

    [14] The Lancet Global Health. ‘The Future of International Health Regulations’ (Editorial, 2022). <https://www.thelancet.com/journals/langlo/article/PIIS2214-109X(22)00254-6/fulltext – articleInformation>. 

    [15] Ibid. 

    [16] Andrew Harmer, Ben Eder, Sophie Gepp, Anja Leetz and Remco van de Pas. ‘WHO should declare climate change a public health emergency’ in the BMJ (2020). 

    [17] David W Patterson, Richard Harvey, Vlatka Matkovic, Marlies Hesselman and Farhang Tahzib. ‘Post COP26: legal action now part of public health’s environment and climate change toolbox’ in European Journal of Public Health (2022). 

    [18] Ibid.