The Right to Health in Climate Change Litigation

As Latin America’s inequalities exacerbate the climate-related health crises that disproportionately affects marginalized communities, the need to realize these populations’ right to health becomes ever more pressing. While the region’s new constitutionalism has enabled domestic litigation to advance the protection of this right, such a transformative approach is just beginning to make inroads with climate change law as rights-based climate litigation proliferates. This contribution analyzes how the normative content of the right to health has played out in key climate litigation cases in two Latin American jurisdictions. Particularly, it comparatively explores how plaintiffs and courts engage with the potential of such a right to prompt access to healthy environmental conditions and health care systems.

Climate Change, the Right to Health, and Inequality: An Inextricable Link

People in every region of the world are experiencing detrimental effects on their physical and mental health due to more frequent extreme weather events and changing patterns of infectious diseases (as the 2021 Lancet Countdown report and the recently-released contribution of the Working Group II to the Intergovernmental Panel on Climate Change’s Sixth Assessment Report track). This life-threatening toll has concentrated amongst the economically and socially marginalized individuals and groups, thereby motivating a recent reframing of climate change as health crises. 

The Human Rights Council and other UN and regional human rights treaty bodies recognize that climate change contributes to the violation of human rights, including the right to health. Particularly, the UN High Commissioner for Human Rights notes that to ensure climate-resilient populations, states should fulfill their minimum core obligations with regard to the right to health, which includes ensuring access to both (1) healthy environmental conditions, and (2) health care systems, especially for vulnerable or marginalized groups. The linkage between the right to health and climate change gained even more prominence when the Paris Agreement explicitly endorsed it in 2015. 

Even when most of the world’s climate litigation cases are based in Global North jurisdictions, Latin America is one of the world’s regions where most of its filed cases raise climate concerns on the basis of human rights violations—after Europe and North America (as the Grantham Research Institute on Climate Change and the Environment shows). Unlike climate litigation in high-income countries, commentators have argued that the framing of climate claims as human rights issues in the so-called developing states, including Latin American countries, owes to the high vulnerability of these countries’ populations to climate-induced risks. 

Latin America vividly illustrates how the interplay between climate change and inequality determines people’s health vulnerabilities. Among the world’s regions, it is considered to have one of the highest levels of social and health inequality, which makes poor and socially marginalized populations even more vulnerable to climate change. For example, the region’s highly uneven access and quality in health care exacerbates its already tangible climate-related health risks as illnesses of people, who lack such an essential service, often go undiagnosed or untreated (as the Intergovernmental Panel on Climate Change observes). 

Rights-based Litigation in Latin America: A Transformative Pathway

At the same time, during the 1980s and 1990s, several Latin American countries set in motion a series of reforms aimed at making their domestic constitutional law more compatible with international human rights law on social and economic rights, including the right to health. This so-called new Latin American constitutionalism enabled the participation in strategic litigation of civil society actors committed to social change and facilitated a legal dialogue across countries through the strengthening of the Inter-American System of Human Rights. Crucially, in doing so, it sparked the expectation on domestic courts to deliver the region’s social transformation for the protection of historically marginalized population groups. 

This confluence of scenarios—on the one hand, the region’s increasing health vulnerabilities to climate change, and on the other, the transformational potential of the new Latin American constitutionalism—poses the question of whether rights-based climate litigation could help address the region’s climate-related health crises. Articulating an initial response to such an inquiry compels attention to the ways in which the right to health, the main normative vehicle to prompt improvements in the countries’ health systems, has played out in climate litigation. Particularly, how have the plaintiffs framed their arguments in relation to it? How have courts interpreted it? This understanding can inform current efforts designed to garner Latin America’s litigation potential to contribute toward a more robust climate governance. 

Two of the climate lawsuits that have garnered headline attention are Colombia’s Future Generations v. Ministry of the Environment and Others, and Mexico’s Greenpeace Mexico v. Ministry of Energy and Others. Both cases are worth analyzing from the perspective of the right to health because they have explicitly invoked such a right. Further, Colombia and Mexico have legally recognized the right to health in their national constitutions and have ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR). They have also ratified the Paris Agreement. 

Future Generations v. Ministry of the Environment and Others

In 2018, a group of children and youth filed a tutela action—a special human rights protection procedure in Colombia, similar to the acción de amparo in other Latin American jurisdictions—before the District Court of Bogotá against the federal government, state, and local authorities for their lack of action to protect the Colombian Amazon. They alleged that the state’s inaction resulted in high deforestation rates and the consequential increase in greenhouse gas emissions, which affected the enjoyment of their right to a healthy environment.

Plaintiffs invoked the right to health in connection to the right to a healthy environment by arguing that the impacts on the latter imperiled the enjoyment of the former. Particularly, they pointed to the rise of tropical (zika, dengue and chikungunya) and respiratory diseases as consequence of increases in temperature, rainfall patterns, and heatwaves. They substantiated these arguments on Article 49 of Colombia’s Constitution, which recognizes health as a right and a public service; General Comment 14 of the UN Committee on Economic, Social and Cultural Rights; the 1992 Rio Declaration, and National Law 99 of 1993 (whose Article 1 establishes the right to a healthy life as a general principle of the country’s environmental policy). 

By focusing on how climate change undermines a healthy environment thereby compromising human health, plaintiffs’ argumentation on the right to health referred to one of the two normative components of this right, namely, health’s underlying determinants—which include a healthy environment. While claimants did not explicitly raise concerns regarding their access to acceptable and quality health care, which constitutes the second component of the right to health, they pointed to two aspects closely connected with the need to ensure such pressing services. First, a claimant affirmed to be experiencing current, tangible, and personal climate-related health impacts:

“(…) [due to the projected temperature increase in Caldas] it is likely that the use of indoor air conditioning or fans increases; this threatens my right to health since I was recently diagnosed with sensibility to severe climatic changes, which provokes my skin and respiratory allergies.”

Moreover, drawing on guiding documents prepared by Colombia’s Institute of Hydrology, Meteorology and Environmental Studies, claimants flagged future and collective climate-related risks for accessing healthcare services. Specifically, they asserted that the decrease of riverbeds may impact healthcare and food in communities that depend on waterways for accessing them.

In April 2018, the Supreme Court of Justice ruled in favor of the plaintiffs and mandated the federal, state, and municipal governments to plan and implement an “intergenerational pact for the life of the Colombian Amazon” to reduce deforestation and mitigate greenhouse gas emissions. The court determined that this pact should also encompass strategies aimed at adapting to climate change.

The Supreme Court’s emphasis on the interrelation of the right to health with the right to a healthy environment allowed it to exceptionally accept to hear this specific tutela case (the tutela generally does not proceed for the protection of collective rights unless collective harms infringe individual rights). Moreover, the Court drew on Article 12 of the ICESCR to call on the state’s obligation to improve all environmental conditions which are instrumental for the realization of the highest attainable level of physical and mental health. In doing so, the Court highlighted the right to health’s normative component pertaining to its underlying determinants. While the Supreme Court acknowledged the causal link between climate change—induced by the Amazon’s increasing deforestation—and the negative health effects on people residing in Colombian territory, it did not devote attention to the personal climate-related health effects raised by one of the claimants, neither to the alleged risks for accessing health care services (which would arguably affect rural communities disproportionately). An explicit focus on the need to strengthen health care systems, as the other normative component of the right to health, did not come forth in the Court’s resolution. 

Greenpeace Mexico v. Ministry of Energy and Others (on the National Electric System policies)

In 2020, Greenpeace Mexico filed an amparo—a constitutional protection lawsuit in Mexico—before an Administrative Court in Mexico City against the Mexican government. The lawsuit contested the constitutionality of two electricity sector policies that would limit renewables.