Winter 2024

As Youth Demand Climate Action in Court, Doctors Bear Witness

A youth-led legal movement centers on the fundamental right to a healthy climate. Some physicians are providing key evidence to support these claims.

January 2024

  • By Molly McDonough
  • 8 minute read

A wildfire burns in Montana

During a busy overnight shift in the emergency room at Massachusetts General Hospital years ago, Renee Salas, HMS assistant professor of emergency medicine, encountered a young patient who was struggling to breathe. It was the girl’s third visit to the ER that week for an asthma attack, and her mother was distraught. The mother pleaded with Salas to explain why, despite repeated treatment, her daughter was getting worse.

Salas, who researches the effects of climate change on health, knew that the answers were manifold. The patient lived in a neighborhood abutting a highway, and scientific consensus has found that breathing pollution from cars over the long-term can cause asthma in children. Those burning fossil fuels also contribute to a warming planet, with longer and more intense pollen seasons and higher ground-level ozone concentrations, both of which can aggravate asthma attacks.

Salas treated the girl’s symptoms with steroids and nebulizers, but it felt like the bare minimum — like “putting Band-Aids on bullet wounds,” she says, “only to send her back out to the same environment where it was impossible to manage her disease.” What the girl really needed Salas couldn’t prescribe: a societal transition away from fossil fuels to renewable energy sources. Solutions like this, that actually address root causes, require major shifts in policy. And they require changes to laws. 

Renee Salas stands in the lobby of a building wearing a white coat and smiling.
Renee Salas

Across the world, people are experiencing the health effects of a changing climate. Those health effects are especially pronounced among young people, and small groups of them are now turning to the justice system to push back. Some are even suing the government, arguing that policies permitting fossil fuel consumption violate their constitutional right to a stable climate that sustains their health. And some doctors are offering expert evidence essential to their cause.  

Physicians take the stand

From the witness box in a Helena, Montana, courthouse in June, 2023, 20-year-old Olivia Vesovich told a packed courtroom what it is like to suffer from asthma during wildfire season. “It feels like it’s suffocating me if I’m outside for minutes,” she testified. “I feel like I can’t breathe, and that’s a terrifying feeling.” 

Vesovich was only 16 when she and a group of other teens and young adults first sued the state of Montana, claiming the state’s permissive fossil fuel policies violated their constitutional right to a healthy environment. Unlike more typical environmental law cases, which usually address compliance with statutes like the Clean Air Act and the Clean Water Act, this case represented a newer strategy in climate law: using the concept of fundamental rights to enforce the government’s duty to protect the environment for current and future generations. While Held v. Montana was among several of these cases filed by youth across the United States in the past several years, it was the first to actually make it to trial. 

Over nine days, Vesovich and fifteen co-plaintiffs testified about myriad health concerns: seasonal pollen allergies that worsen each year; the increasing scarcity of plants essential to traditional Native medicines; and fires, floods, and heat waves that force them to forgo exercise and sports. Nearly all of the young plaintiffs described the heavy emotional toll of climate change — feelings of anxiety, hopelessness, and despair. 

Because Montana’s state constitution explicitly gives citizens the “right to a clean and healthful environment,” the attorneys needed to prove that certain state policies — specifically, laws that had prohibited Montana agencies from considering greenhouse gas emissions when reviewing permits for fossil fuel projects — had contributed to climate change, and that this in turn had aggravated the health issues the plaintiffs described. To support the latter claim, the lawyers called in physicians.

Among them was Lise Van Susteren, a psychiatrist in Washington, DC, and an expert on the mental health effects of climate change. As a board-certified forensic psychiatrist, Van Susteren is accustomed to serving as an expert witness in court cases, where she often shares expertise about how adverse childhood experiences can affect morbidity and mortality. 

To realize there was a judge there, and she was going to bang the gavel one way or the other — it was an enormous privilege.

Despite the circumstances of testifying in the first-ever constitutional climate trial, Van Susteren says that she simply stated what she knows: climate change causes increased stress, which can harm a child’s physical health throughout life. “It’s very much in the province of a forensic psychiatrist to say that these kids had physical losses as a result of the very specific unconstitutional acts of the state legislature,” she says. 

Yet sitting in the witness stand is different from talking to patients, teaching medical students, or speaking at an academic conference. Expert witnesses have to walk a fine line, making statements that are powerful and elicit just enough emotion, yet are also extremely accurate, with carefully chosen words that can stand up to cross-examination — “no smoke and mirrors,” Van Susteren says. 

An effective testimony also gives physicians an opportunity to influence the world beyond the clinic or academia. “I sat in that witness box and said all of the things that I’ve known to be true, but until then I hadn’t had the stage or platform to generate the changes that were needed,” Van Susteren says. “To realize there was a judge there, and she was going to bang the gavel one way or the other — it was an enormous privilege.” 

Less than two months later, the judge released her much-anticipated decision. She had ruled in favor of the plaintiffs. 

Life, liberty, and . . . climate?

While physicians can play pivotal roles in climate law cases, it usually doesn’t happen in the witness stand. Often, doctors contribute behind the scenes by submitting amicus briefs: written documents submitted by outside parties that offer courts relevant information to consider before making a judgment. The term comes from amicus curiae, Latin for “friend of the court.” 

That’s how Renee Salas got involved in what might be the most high-profile of all constitutional climate cases: Juliana v. United States. In August 2015, twenty-one plaintiffs between 8 and 19 years old sued the federal government for its failure to protect their fundamental rights to life, liberty, and property.

The U.S. Constitution doesn’t explicitly guarantee a right to health, but medical research still plays an important role in Juliana. Unlike in state courts, bringing a suit to federal court requires that a plaintiff prove Article III standing — that is, to prove that they’ve suffered some sort of injury due to the defendant’s actions. 

In 2019, as plaintiffs sought to convince the Ninth Circuit Court of Appeals to let Juliana proceed to trial, Salas and a small group of physicians teamed up with the Emmett Environmental Law and Policy Clinic at Harvard Law School to draft an amicus brief. While such briefs sometimes deal with the legal aspects of a case, this one was purely scientific, offering medical evidence that was key to establishing injury — in this case, the detrimental health effects of climate change. Nearly eighty physicians and fifteen major health organizations, including the American Academy of Pediatrics, signed on, urging the court to let the young plaintiffs make their arguments in trial. 

This scientific research and knowledge that improves health, prevents disease, and saves lives cannot live in only journals. It needs to be synthesized and understood by people in all sectors across society, including those in the justice system.

“We were providing scientific context for the case, spelling out in more detail the fact that today’s youth are going to be harmed by climate change more than in previous generations,” says brief co-author Shaun Goho, an attorney at the Clean Air Task Force, who at that time was deputy director of the Emmett Clinic. “If you accept the plaintiffs’ legal theory, that’s a really important set of facts to establish to determine whether they should prevail.” 

In the document, Salas and co-authors compiled a comprehensive review of the known research data on how climate change injures children. They discussed how children are uniquely vulnerable to the effects of greenhouse gas emissions because of their developing bodies. They described how children breathe faster than adults and spend more time outdoors, resulting in greater exposure to air pollutants. And they cited research showing that today’s youth are living through unprecedented, accelerating climate-related insults, including an estimation from the World Health Organization that 88 percent of the global health burden of climate change falls on children under 5 years old. 

Salas also collaborated with Wendy Jacobs, then director of the Emmett Clinic, and Frederica Perera, a professor at Columbia University, to co-author a perspective in the New England Journal of Medicine outlining the arguments of the brief. But “this scientific research and knowledge that improves health, prevents disease, and saves lives cannot live in only journals,” Salas says. “It needs to be synthesized and understood by people in all sectors across society, including those in the justice system.” 

While it’s hard to know to what extent an amicus brief influences a judge’s opinion, says Goho, the decision in this case affirmed the physicians’ arguments: The court ruled that yes, the plaintiffs had been injured by climate change, and yes, these injuries were caused by carbon emissions from burning fossil fuels. The judges ultimately tossed the case back to a district court over a legal hitch, arguing that the case should be dismissed because courts didn’t have the constitutional power to resolve the climate crisis. But after a few years of being in limbo, modified, and then in appeal, a district court ruled in late December 2023 that the case can proceed to trial. In 2024 the plaintiffs will finally see their day in court. 

Engaging with the justice system

While climate change is a health issue, there is very little research exploring how health arguments influence climate cases. 

A rare paper on this topic, published in 2018 in the American Journal of Public Health, examined 26 years of U.S. court decisions related to coal-fired power plants and climate change. It found that health considerations played a key role in some important climate lawsuits, but that health was mentioned in less than 20 percent of the cases. When health was mentioned, it usually served to prove standing. The researchers suggest that leaving medicine out of climate cases could be a missed opportunity, and predict that health expertise will play a more important role as an increasing number of environmental law cases use science-backed arguments to compel action against climate change. 

Goho says that, in the last seven or eight years, he’s noticed physicians getting more involved in shaping climate law. And they’re doing it outside of the courts, too — from filing comment letters during rulemaking, to testifying before Congress, to conducting scientific research funded by federal agencies like the Environmental Protection Agency. These strategies may not garner the same headlines as constitutional climate cases, but they’re making an even greater difference. 

Salas, who has also testified before Congress on the health effects of climate change and collaborated on comment letters to the EPA, sees engagement with law and policy as just another way to treat her patients. 

“Fossil fuel pollution and climate change aren’t abstract; they tangibly show up in my exam rooms and make it harder for me to do my job as a doctor,” she says. “Acting on climate change is the greatest prescription doctors can write to improve health and advance equity, especially for children.”  

 

Molly McDonough is the associate editor of Harvard Medicine magazine.

Images: Robh/iStock/Getty Images Plus (wildfire); Kris Snibbe/Harvard University (Salas)