By Jordon Fogel, JHBL Staff Member
“We are on a highway to climate hell with our foot still on the accelerator.” ~ U.N. Secretary-General Antonio Guterres[1]
Global ecological regulation is challenging to implement and enforce. Though there is a general understanding of the interconnectedness of human and environmental health, not everyone is equally concerned. Historically, the international community looked favorably on international environmental law: in 2015, 196 parties adopted the Paris Agreement, which aimed to limit global warming to 1.5 degrees Celsius by the end of the century.[2] However, actual enforcement of such treaties remains highly recusant amongst leading global powers.[3] Therefore, the communities and individuals disproportionately affected by the environmental crisis routinely face the law’s shortcomings. Nonetheless, a surge of lawsuits claiming human rights violations prove promising as activists use current and future health risks to bind governments and businesses to environmental betterment.[4]
In Montana, sixteen young activists (hereinafter Activists) recently exemplified this possible pathway to ensuring ecological protection by successfully asserting human rights violations relating to their current and future health.[5] In 2020, the coalition of Activists brought a suit against the state of Montana for permitting continuous fossil fuel development, citing numerous consequences caused by greenhouse gas emissions, including adverse health risks.[6] Activists claim that the state of Montana acted affirmatively to exacerbate the climate crisis and, by doing so, directly violated its Constitution, which stipulates that “each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.”[7] Disregarding the impact of dangerous climatic conditions is a clear violation of basic human rights, Activists argued, especially when renewable energy is both feasible and economically beneficial.[8] In her monumental ruling, during the summer of 2023 which broke temperature records and saw historic wildfires in Greece, Hawaii, and Canada, District Court Judge Kathy Seeley agreed.[9] On October 17th, 2023, the Montana Attorney General’s Office filed an appeal to the Montana Supreme Court.[10] A review is likely to occur early next year.
Although the ultimate success of Activists’ environmental ambitions remains unclear, New York University’s Climate Litigation Accelerator reports similar claims in nearly 300 active cases worldwide.[11] Additionally, the International Criminal Court (hereinafter ICC) has proposed to amend the Rome Statute to include ecocide.[12] Ecocide was first used to describe the human and environmental destruction caused by Agent Orange, a defoliant, during the Vietnam War.[13] As of 2021, experts have supplemented the definition of ecocide to include “unlawful or wanton acts committed with knowledge that there is a substantial likelihood or severe and either widespread or long-term damage to the environment caused by those acts.”[14] The push by activists in both civil and criminal judiciaries for acknowledgment of the environmental crisis is making the human rights violations stemming from anthropogenic climate change too hot to ignore.
So, what does this all mean?
For perhaps the first time, individuals and communities could assert human rights violations relating to climate change and see those claims survive in court. This is especially important since, as Held v. State of Mont. exemplifies, little precedent exists, and because legally binding treaties, like the Paris Agreement, frequently fail to hold governments accountable for reducing emissions.[15] For example, Biden’s Administration approved the controversial Willow Project in Alaska in March 2023 despite reentering the Paris Agreement after Biden’s inauguration in 2021.[16]
By the Administration’s estimates, the Willow Project will generate enough oil to release 9.2 million metric tons of carbon pollution in a single year, which is the equivalent of adding two million gas-powered cars to roads.[17] Residents of Nuiqsut, an Inupiaq community closest to Willow’s location, are already inundated with oil and gas drilling sites.[18] The environmental impact of the Willow Project on the health of Nuiqsut residents and their food and subsistence resources will be catastrophic.[19] Litigation opposing the Willow Project is currently ongoing. Similar to the issues faced by the Activists’ in Montana, predicting the consequential human rights violations relating to health from the Willow Project is impossible without existing precedent. Notably, however, if the Rome Statute were to include ecocide, another potential recourse would open to those suffering the most from climate change. For example, if thwarting the Willow Project fails nationally, amending the Rome Statute could enable the International Criminal Court to prosecute the individuals leading the Willow Project for ecocide. While ICC prosecutions are incredibly complex, the inclusions of ecocide in the Rome Statute would symbolize global recognition of the climate crisis and its impact on peoples and serve as a deterrent for the continuance of projects like Willow.[20]
The approval of the Willow Project is merely one example of blatant disregard for the environment and global public health. Only time will tell if these potential pathways to achieving environmental protection through human rights and health arguments will be successful. Unfortunately, time is finite, and as temperatures continue to rise, we will all feel the fever of climate change soon.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHBL or Suffolk University Law School.
Jordon Fogel is a 3L evening division who is interested in health and biomedical law and environmental law.
[1] See U.N. Secretary-General Antonio Guterres, Secretary General’s remarks to High-Level opening of COP27, u.n. (Nov. 7, 2022), https://www.un.org/sg/en/content/sg/speeches/2022-11-07/secretary-generals-remarks-high-level-opening-of-cop27 [https://perma.cc/8M7E-669N].
[2] See UNFCCC, The Paris Agreement. What is the Paris Agreement?, U.N. Climate Change, https://unfccc.int/process-and-meetings/the-paris-agreement [https://perma.cc/U5K7-QSFG] (last visited Oct. 8, 2023, 8:00 PM).
[3] See generally Mark Weston Janis Et. al, International Law: Cases and Commentary 29-119 (West Acad. Pub. eds., 6th ed. 2020) (explaining international treaties and issues with enforcement).
[4] See U.N. Human Rights Office of the High Commissioner, “This is about our human rights:” U.S. youths win landmark climate case, U.n. (Aug. 29, 2023), https://www.ohchr.org/en/stories/2023/08/about-our-human-rights-us-youths-win-landmark-climate-case [https://perma.cc/TU5H-YTXT].
[5] See id.
[6] See Complaint at 98-102, Held v. State of Mont., U.S. Dist. LEXIS 4630 (2023) (No. CDV-2020-307) [hereinafter Complaint]. See also U.N. Human Rights Office of the High Commissioner supra note 4.. During the trial, Activists gave testimony about their climate-related injuries including two brothers suffering from respiratory diseases. Id.
[7] See Complaint supra note 6.
[8] See id.
[9] See generally Findings of Fact, Conclusions of Law, and Order, at 26-85, Held v. State of Mont., U.S. Dist. LEXIS 4630 (2023) (No. CDV-2020-307). See also U.N. Human Rights Office of the High Commissioner supra note 4.
[10] See Held v. State, Mont. LEXIS 1034, 1, 1-2 (2023).
[11] See U.N. Human Rights Office of the High Commissioner supra note 5.
[12] Mark Hillsdon, Society Watch: Drive to make ecocide an international crime gains momentum, Reuters (Feb. 20, 2023), https://www.reuters.com/business/sustainable-business/society-watch-drive-make-ecocide-an-international-crime-gains-momentum-2023-02-20/ [https://perma.cc/7KNP-QQL8].
[13] Id.
[14] Id.
[15] See generally Weston et al., supra note 3; U.N. Human Rights Office of the High Commissioner, supra note 5.
[16] See Renee Cho, The U.S. Is Back in the Paris Agreement. Now What?, Columbia Climate School (Feb. 4, 2021), https://news.climate.columbia.edu/2021/02/04/u-s-rejoins-paris-agreement/ [https://perma.cc/X97S-CH2T]. Although the United States originally signed the Paris Agreement in 2015, the Trump administration ended U.S. involvement in 2017. Id. See Ella Nilsen, The Willow Project has been approved. Here’s what to know about the controversial oil-drilling venture, CNN Politics (Mar. 14, 2023), https://www.cnn.com/2023/03/14/politics/willow-project-oil-alaska-explained-climate/index.html [https://perma.cc/9VCD-HLZP]. ConocoPhillips’ (a Houston-based energy company) Willow Project is a massive and decadelong oil drilling venture on Alaska’s Northern Slope in the National Petroleum Reserve (owned by the federal government). Id.
[17] Id.
[18] See The Threat of the Proposed Willow Project, Native Movement, https://www.nativemovement.org/willow-project [https://perma.cc/LAJ6-W8PL] (last visited Nov. 4, 2023).
[19] Id.
[20] See About the Court, icc, https://www.icc-cpi.int/about/the-court#:~:text=The%20Office%20of%20the%20Prosecutor,bring%20cases%20before%20the%20Court. [https://perma.cc/6ECU-QC4D] (last visited Nov. 9, 2023). In the history of ICC there have been 31 cases resulting in 10 convictions. Id.