Life, Health and the Environment: The Denied Connection

By,

Laura Westra, Ph.D.Professor Emerita (Philosophy)

University of WindsorSessional Instructor, Faculty of Law

Sessional Instructor, Faculty of Law, University of Milano (Bicocca)Sessional Instructor, Graduate Faculty of Environmental Studies, Royal Roads University

E-mail: lwestra@interlog.comWebsite: www.ecointegrity.net

Aldo Leopold (1949) – Forests, Integrity and the Health of the Biotic Community

“A thing is right when it tends to preserve the integrity, stability and beauty of the biotic community. It is wrong when it tends otherwise.

Aldo Leopold (1949) – Forests, Integrity and the Health of the Biotic Community

My own position is that, for the most part, the interface between human rights and environmental hazards is not well represented in legal regimes; in fact, it is most often deliberately misunderstood with a view to protecting commercial interests and of continuing the present status quo. (Mattei, Ugo and Nader, Laura, 2009,

Plunder, Blackwell Publishing, Oxford, UK ) In order to present a concise but inclusive summary of some of the problems we face in that regard, I will briefly discuss the issue, including four separate, but interconnected headings:

(1) the explicit denial of that interface in the jurisprudence, from US cases under the alien Torts Claims Act (ATCA), to the European Court of Human Rights and the International Court of Justice;

(2) the lack of explicit prohibitions on the part of the WHO, regarding industrial chemical and agricultural processes, despite the abundant evidence amassed by that organization and available in medical journals regarding the human health consequences of those industrial activities, which today can be compared to the evidence gathered by the WHO before drafting their Framework Convention on Tobacco Control (Framework Convention on Tobacco Control, World Health Organization adopted by the World Health Assembly 21 May 2003, into force 27

February 2005);

(3) the ongoing denial of the gross human rights violations that follow upon climate change, including glacial melts in the Arctic, drought and famine in sub-Saharan Africa, while the same Western practices continue, including the over-use of water and grains in industrial meat production, with its resulting methane releases;

(4) the insistence on the “right” to “sustainable development”, without the right of Indigenous and other land-based communities to say “no” when the development in question is unwanted, as it continues to impact gravely these peoples’ very subsistence, as well as their health and survival, both as individuals and as peoples.

Health and the Environment: A Denied Connection in Law

In confronting the insalubrious ramifications of globalization, human rights scholars and

activists have argued for greater national and international responsibility pursuant to the

human rights to health [….] However, in pressing for the highest attainable standard for

each individual, the right to health has been ineffective to address burgeoning inequalities in

underlying determinants of health focusing on individual medical treatments at the expense

of public health. (Meier, Benjamin Mason, 2006, “Employing human rights for global justice: the promise of public health in

response to insalubrious ramifications of globalization”, Cornell International Law Journal, Vol.39, pp.711-752 711-712)

The problem is not a lack of instruments, declarations, and resolutions extolling the value of

health and even the universal right to it. But, aside form the fact that such a right is

universally non-enforceable and that the instruments that prescribe it are non-binding, the

main problem is that the abundant scientific information available to connect health and

environment is not even considered. In addition, public health refers to collective (universal)

or at least to community rights, while for medicine, it is individual rights that are central, and

most significant.

Environmental Rights and the Right to Health in Jurisprudence

All peoples may, for their own ends, freely dispose of their natural wealth and

resources without prejudice to any obligation arising out of economic international

cooperation, based upon the principle of mutual benefit and international law. In no

case may people be deprived of its means of subsistence. (International Covenant on Civil and

political Rights, Article 1(2); emphasis added)

All corporate claims to be involved in “development” projects, and all government

approval of such plans, whether they occur in so-called “developing countries” or in

areas inhabited by Indigenous communities, would be evaluated according to their

article. Space will not permit a thorough survey of the abundant caselaw available,

hence a few examples will suffice.

Environmental Rights and the Right to Health in Jurisprudence Cont.

The first will be the Canadian case of Grassy Narrows and White Dog, where the Judge

himself found the justice system so insufficient that he counselled arbitration and a

settlement instead, in order to provide some timely relief to the people of the affected

First Nations.

...the settlement and the events leading up to it provide a striking example of the fragility

of Canadians’ environmental rights in the face of environmental wrongs. Access to

justice has been difficult to achieve for victims of environmental catastrophes. The

substantive, procedural and evidentiary rules in private environmental actions appear

biased in favour of the polluter. (West, Leigh, 1987, “Mediated Settlement of Environmental Disputes: Grassy

Narrows and White Dog Revisited” Vol. 18, Environmental Law, 131-150 132)

Polluted Rain Forest and Indigenous Health

The Indigenous peoples in South America are not better protected by either their own

courts (despite the excellent Constitutions many such countries have recently enacted),

or by the U.S. court system, under the alien Torts Claims Acts, available to non-citizens

who have been harmed in other countries by multinational corporations with offices in

the U.S. Extractive industries have a long history of imposing environmental and health

harms with impunity.

Citizens of Peru and Ecuador brought class action suits alleging that defendant oil

company polluted rain forests and rivers in their countries, causing environmental

damage and personal injury. (Maria Aguinda and others including the Federation of the Yagua People of the Lower

Amazon and Lower Napo v. Texaco, Inc., 303 F 3d 470; 2002 U.S. App. LEXIScl6540; 157 Oil and Gas Rep. 333, Aug.16, 2002,

Decided)

This case is typical of this kind of jurisprudence and it has a long previous history that

led to this unsuccessful appeal. (Aguinda v. Texaco, Inc., 1945 F. Supp.625 (5 D.N.Y. 1996); Aquinda v. Texaco,

Inc., 142 F. Supp.2d 534 (S.D.N.Y. 2001); Jota v. Texaco, Inc., 157 F 3d 153 (2d Cir.1998) )

Polluted Rain Forest and Indigenous HealthCont.

The plaintiffs brought a suit against Texaco in 1993, as the latter’s activities had “polluted

the rain forests and rivers” in both Ecuador and Peru, and those polluting and harmful

activities were “designed, controlled, conceived and directed….through its operation in the

United States”. (ibid.:473)

The indigenous peoples sought to recover damages, citing

…negligence, public and private nuisance, strict liability, medical monitoring, trespass,

civil conspiracy and violations of the Alien Tort Claims Act, 28 USC § 1350 (“ATCA”).

(ibid.)

Deforestation, Climate Change & Public Health

Finally, we can consider a major source of environmental harms to public health:

climate change. A recent case, successfully argued in the U.S. in 2009,

The case is The State of Connecticut, et al., v. America Electric Power Company, Inc.

et al. First, several “Trusts”, that is the Open Air Institute, Inc., Open Space

Conservancy, Inc., and the Audubon society of New Hampshire in this case, join with

the State of Connecticut, New York, California, Iowa, New Jersey, Rhode Island,

Vermont and Wisconsin, as well as the City of New York, against several electrical

power companies. Second, these States and Trusts, jointly claim “the ongoing

contributions to the public nuisance of global warming” are causing “and will continue to

cause serious harms affecting human health and natural resources”. (State of Connecticut, et al.

v. American Electric Power Company, Inc. et. al., 2009)

Deforestation, Climate Change & Public HealthCont.

Third, although Defendants claimed the whole issue was a “non-justiciable political

question”, for that they “lack[ed] standing”, or that they attempted to displace “federal

common law”—the Court of Appeals rejected all these arguments. Fourth, the States

itemize singly and collectively the harms of climate change, which will produce

“substantial adverse effects on their environments resident, and property...”, and all of

which will cost each State billions of dollars to respond. As an example, “the reduction

of California’s mountain snowpack, the single largest freshwater source critical to

sustaining water to the State’s 34 million residents during the half of each year, when

there is nominal precipitation”. (State of Connecticut, et al. v. American Electric Power Company, Inc. et. al., 2009:

8)

In addition, in the fifth place, the States list several significant cases of “increased

illnesses and deaths caused by prolonged heatwave”, the harms from smog, and poor

air quality, as they couple explicitly the impacts on “property, ecology and public health”.

(State of Connecticut, et al. v. American Electric Power Company, Inc. et. al., 2009: 9)

But, despite this excellent judgment, which recognized the necessary connection between environmental harms and public health, using traditional principles and doctrines in a novel way, the Supreme Court of the United States reversed this earlier decision, on June 20, 2011. (American Electric Power Co. Inc et al. v. Connecticut et

al., 564 US 2011 ) As expected, the court did not engage with the substantive issues involved, or with the connection between environmental causation and damages to public health. Instead, the judgment held that

2. The Clean Air act and EPA action the Act authorizes displace any federal common-law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants.

The judgment further argued that “the Clean Air act is no less an exercise of the Legislature’s considered judgement concerning air pollution regulations because it permits emissions until EPA acts” (ibid., 2(c)), and, essentially stated that it should be left to the EPA to do such “complex balancing”, asthe expert agency is surely better equipped to do the job than federal judges who lack the scientific, economic and technological resources an agency can utilize in coping with issues of this order. (ibid.)

Note especially the omission of “public health” considerations, the main focus of the argument of the earlier case, and the addition of “economic and technological” as significant areas of expertise on the part of the EPA, clearly intended to provide the solution to their understanding of the problem.

Public Health: The Denied Connection

The “Denied Connection” and the Possible Role of the WHO

84. An overarching objective of reform is to capitalize more effectively on WHO’s leadership position in global health, specifically to strengthen the role that WHO can play in line with its primary Constitutional function as “directing and coordinating authority on international health work.” 26. In this new environment, a model characterized solely by donors and recipients of aid is no longer viable. In this place is a need to think about collective responsibility, shared vulnerabilities, and values, sustained solidarity, and health as a global public good. (World Health Organization, sixty-fourth World Health assembly A64/4, 5 May 2011, Provisional Agenda, Item 11, Executive Summary)

The WHO, with the cooperation of the WHA appears to be the only international institution capable—at least in principle—of mandating and supporting the needed remedies fro the situation we have briefly outlined in these pages. That situation includes (a) lacunae in the clarity and specifically of the language of legal regimes; (b) grave lacks in the education of lawyers and judges; and, perhaps the best area where the HWO may prevail, (c) a clear indictment of products, practices and processes that are already proven to be hazardous to health; the latter should result in (d) a new Convention against such products and substances, particularly those that involve the chemicals that have already indicted by the WHO’s own publications. (Tamburlini, Giogio, 2002, “Children’s Special Vulnerability to Environmental Health Hazards”, in Tamburlini, G, Von Ehrenstein, O. and Bertollini, R., eds. Children’s Health and the Environment: A Review of the Evidence, EEA Report NO.29; Licari, L., Nevmer, L. and Tamburlini, G., eds., 2005, Children’s Health and the Environment, World Health Organization Regional Office for Europe, Copenhagen, Denmark), and by other scholars (See for instance Grandjean, P. and Landrigan, P., 2006, “Developmental Neurotoxicity of Industrial Chemicals”, The Lancet, Nov.8)

The Role of the WHA – A Framework Convention for Global Health

It was not easy for the WHO to prevail against Big Tobacco, as they finally produced their 2005 Draft Convention. (Tobacco Convention, available at www.who.int/tobacoo/fctc/text/en/fctc)en.pdf) It would be harder, no doubt, for them to alienate most important industrial conglomerate and the government officials that support them and are supported by them in turn: consider for instance Big Oil, and its many corporate supporters who are involved, as we saw in an ongoing battle to discredit climate change science, and to ignore the plight of those exposed to there toxic operations.What is truly needed, and which richer countries instinctively (although not always adequately) do for their own citizens, is to meet what I call “basic survival needs”....Basic survival needs include sanitation and sewage, pest control, clean air and water, tobacco reduction, diet and nutrition, essential medicines and vaccines, and functioning health systems for the prevention, detection and mitigation of disease and premature death. (Gostin, Lawrence O., 2008, “Meeting Basic Survival Needs of the world’s least Healthy People: Toward a Framework Convention of Global Health”, 96 Geo.L.J. Jan.8 3)

The most important components of an instrument designed for the protection of human rights and both appear to be present in Gostin’s proposal: (1) the recognition of the environmental aspects of human health; and (2) the understanding of the right to health as more than the right to medical care when ill, important though that is. In addition, rather than leaving these aspects of the right to health to the goodwill of individual states, Gostin also proposes that “the World Health Organization (WHO) or a newly created institution could set ongoing standards, monitor progress, and mediate disputes”. (ibid.)