• 1 Natural Disaster Management Authority (NDMA), Floods (2022) SITREP, Daily SITREP, 18^th November 202 (...)
• 2 P. Jain et al., “Drivers and Impacts of the Record-Breaking 2023 Wildfire Season in Canada”, Nature (...)
• 3 G. Machado, “Floods in south Brazil: more than an environmental crisis”, The Lancet, 404(10447), 20 (...)
• 4 T. Stocker, Climate Change 2013: the Physical Science Basis: Working Group I Contribution to the Fi (...)
• 5 J. Handmer et al., “Changes in impacts of climate extremes: Human systems and ecosystems”, in Manag (...)
• 6 N. Islam and J. Winkel, “Climate change and social inequality”, Working Papers, 152, United Nations (...)

1Floods in Pakistan in 2022 killed more than 1700 people1, Canada’s wildfire in 2023 exposed the population to long-term smoke and bad air quality2, water shortages in Europe affected many countries in the last few years, and more than 422 000 people have been displaced because of floods in south Brazil3. Such extreme natural events are made more frequent and intense by climate change4. It is now well established that climate change is a global phenomenon yet impacting States and individuals differently5. People in a precarious context given their geographic situation, socio-economic status, race, gender, or their health condition, suffer from climate change repercussions in a more violent way6.

• 7 J. Peel and H. Osofsky, Climate Change Litigation, Cambridge, Cambridge University Press, 2015; J.  (...)
• 8 H. Osofsky, “The continuing importance of climate change litigation”, Climate Law, 1(1), 2010, p. 3(...)
• 9 C. Hilson, “Climate Change Litigation: A Social Movement Perspective”, Work Paper, 2010, p. 2, http (...)
• 10 J. Peel and H. Osofsky, “Climate change litigation”, Annual Review of Law and Social Science, 16(1) (...)

2Among other legal mechanisms, climate change litigation became a powerful tool to try to reach climate justice and mitigate the adverse effects of the climate crisis7. In the last twenty years, climate change litigation pressured State and compagnies to adopt and respect regulation8. The definition of climate change litigation is broad, because of the number of cases that could be linked to climate change. Hilson underlines the porosity of climate litigation but circumscribed the notion to cases “which deliberately brings out a climate change element in the case”9. Peel and Osofsky’s definition includes cases where climate change is both the central argument or a peripheral issue or a motivation10. In this paper, climate change litigation concept is used following this definition.

• 11 A. Haines and J. Patz, “Health Effects of Climate Change”, JAMA, 291(1), 2004, p. 99‑103; A. Haines (...)
• 12 McCormick et al., “The Role of Health in Climate Litigation”, American Journal of Public Health, 10 (...)
• 13 Ibid., p. 107.
• 14 N. Toolan et al., “Legal implications of the climate-health crisis: A case study analysis of the ro (...)

3There is an extensive body of literature about the health impacts of climate change11. Public health arguments’ role and normative value in climate change litigation have not been widely examined12. So far, McCormick and al. studied the role of health in climate lawsuits and explained that health considerations played a pivotal role in significant climate litigation, but in a limited number of cases13. Toolan et al. also showed courts’ receptivity to public health science and called for improving legal doctrine to strengthen the role of public health arguments in climate legal action14. The research carried out in this paper meets public health lawyers’ ambitions to look at the role of law, human rights, public health law in climate litigation, and its impact on the mitigation of climate change, health inequalities, and climate justice objectives.

• 15 K. Crenshaw, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidi (...)
• 16 This assumption aligns with a body of literature advocating for an intersectional approach to clima (...)

4To critically study the role of law in climate and health inequalities, intersectionality is a useful analytical tool. Conceptualized by Kimberlé Crenshaw in 198915, the definition and use of intersectionality will be detailed all along the paper. Guided by intersectionality theory, scholars have begun to advocate for the acknowledgment of the complex nature of health inequalities exacerbated by climate change16. This perspective raises research questions concerning the judicial system’s capacity to address such multifaceted scenarios and vulnerabilities. How, then, does the intersectional framing of claims regarding health inequalities intensified by climate change develop within the courtroom?

• 17 Climate Change Litigation Databases, Sabin Center for Climate Change Law, http://climatecasechart.c (...)

5To answer this question, a sample of cases focusing on “intersectional health inequalities due to climate change” was created from the Climate Change Litigation Databases of the Sabin Center for Climate Change Law17. Cases were selected for their direct link to individual or public health, for factoring in race or ethnicity arguments, and/or gender, status, age, and therefore bringing out questions of intersectionality. After sorting based on these criteria, there are sixty-two relevant cases for the study, for the period of 1990 to 2024. Given the number of cases, testing the methodology and identifying potential shortcomings, biases, or weaknesses of the study, seems necessary through preliminary research. This paper undertakes an exploratory multi-case study through four lawsuits brought by individuals or NGOs against governments of the US, Colombia, Canada, and Switzerland. The study is carried out through systematic content analysis. This methodological approach is used in legal research to analyze and interpret the content of court decisions in a systematic manner to identify patterns, themes, and key elements.

• 18 A. Berberian et al., “Racial Disparities in Climate Change-Related Health Effects in the United Sta (...)
• 19 Z. Kundzewicz et al., “Assessing river flood risk and adaptation in Europe—review of projections fo (...)
• 20 K. Reed et al., op. cit.
• 21 D. McKenzie et al., “Climatic change, wildfire, and conservation”, Conservation Biology, 18(4), 200 (...)

9Many extreme natural events marked the last decade all over the globe. Catastrophic events have all impacted public health, with some disparities in the consequences distribution. Research shows that vulnerable people suffer the effects of climate change in a most violent way than privileged population18. The link with climate change can be ambiguous at first sight, mainly because climate change attribution of these incidents is a complex scientific task, given the presence of other parameters. Causation is one of the main challenges of climate science. However, it is proven that climate change increases the risks of flood19, hurricanes20, and wildfire21, especially regarding their intensity and frequency.

• 22 J. Houghton, Climate change 1995: The Science of Climate Change: Contribution of Working Group I to (...)
• 23 N. Watts et al., “Health and climate change: policy responses to protect public health”, The Lancet(...)
• 24 Ibid., p. 1872. “For risks associated with transmission vectors and water, for example, rising temp (...)
• 25 T. Kjellstrom et al., “Public health impact of global heating due to climate change: potential effe (...)
• 26 R. McLeman and B. Smit, “Migration as an Adaptation to Climate Change”, Climatic Change, 76(1), 200 (...)
• 27 To see further details on how climate change impact elements of food security, i.e, availability, s (...)

10Scientific literature now distinguishes direct and indirect consequences for human health22. Direct impacts are related to mortality increase due to extreme natural events such as high temperatures, droughts, floods, or hurricanes23. Indirect impacts on health can influence both infectious diseases and non-communicable diseases (NCDs). Regarding infectious diseases, the rise of vectorial illness is a serious threat to global public health24. Indeed, rising temperatures are responsible for geographic spread of vectors living spaces, putting more people at risk. Regarding NCDs, climate change impacts allergies, undernutrition, respiratory diseases, and mental illness. For example, air pollution is responsible for the rise of respiratory and cardiovascular diseases25. Climate change implications for livelihoods or food security can impact public health, forcing population to migrate to more climate-friendly territories,26 or impacting the access to adequate food27. These are just a few examples of how climate impacts health, but there are many other diseases and indirect impacts on human health.

• 28 World Health Organization, Gender, Climate Change and Health, Geneva, World Health Organization, 20 (...)
• 29 S. Hallegatte and J. Rozenberg, “Climate change through a poverty lens”, Nature Climate Change, 7(4 (...)
• 30 Y. Zhang et al., “Climate change and Disability–Adjusted life year”, Journal of Environmental Healt (...)
• 31 See the case of small islands that are the first and most fiercely affected by the impacts of clima (...)
• 32 N. Adger, “Vulnerability”, Global Environmental Change, 16(3), 2006, p. 268‑281.
• 33 H.-M. Füssel and R. Klein, “Climate Change Vulnerability Assessments: An Evolution of Conceptual Th (...)

11Disparities in the distribution of climate change impacts are progressively recognized, documented, and addressed. Climate change’s impacts marginalize individuals and groups who are burdened by multiple layers of gender28, poverty29, disability30, territorial or geographical31 discrimination. To consider these parameters, a vulnerability approach to climate change was developed in the literature. Vulnerability is related to the capacity to adapt to climate and considers all the reasons why resilience can be different from one another32. Adaptive capacities are conditioned by various factors, such as the level of education, income, medical conditions, or legal frameworks, also called “non-climatic factors”33.

• 34 Paris Agreement to the United Nations Framework Convention on Climate Change, dec. 2015, T.I.A.S. n (...)

12Factors of vulnerability to climate change are addressed in the literature, as mentioned before. They have been studied seriously through a single-axis prism. However, by only considering one dimension of vulnerability, researchers and subsequently policymakers are missing substantial issues. Vulnerability of women, children, indigenous people, is recognized in international treaties or international organization documents34. Yet, few policies or literature address climate change through a pluri-axis prism, as would an intersectional approach.

• 35 K. Crenshaw, op. cit.
• 36 K. Crenshaw, “Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women (...)
• 37 Ibid., p. 1242‑1243.
• 38 K. Crenshaw, “Demarginalizing the Intersection of Race and Sex”, op. cit. ; K. Crenshaw, ibid.
• 39 K. Crenshaw, ibid., p. 1243.
• 40 K. Crenshaw, “Demarginalizing the Intersection of Race and Sex”, op. cit.
• 41 C. MacKinnon, “Intersectionality as Method: A Note”, Signs, 38(4), 2013, p. 1019-1030.

14Intersectionality’s genesis is often pinpointed with Kimberlé Crenshaw’s essays: Demarginalizing the intersection of race and sex35 and Mapping the margins36, written in 1989 and 1991. Her work influences are rooted in critical race theory and legal scholarship investigating race and gender connections37. It is also inspired from the Black feminism movement, and many authors implying intersectionality such as Angela Davis, Toni Cade, Patricia Hill Collins, bell hooks38. Crenshaw exposes racism and sexism patterns intersections to question how legal reasoning, categories, and structures maintain dominant groups. She aims to capture “the way that prevailing structures of domination shape various discourses of resistance”39. Crenshaw highlights how law and judicial logic think about gender, race, and class as discrimination factors disconnected from each other40. By doing so, she reveals the structural erasure of oppression situations occurring at the intersection of several relations of power. It is important to underline that intersectionality does not just add up variables but adopts a dynamic approach of reality41. This is one of the reasons the classic race, class, gender triptych evolved, to consider new factors such as disability, sexuality, religion, to mention but a few. Since the 1980s, intersectionality expanded and became an analytical framework to think about one’s unique position created by discriminatory factors acting simultaneously.

• 42 O. Solar and A. Irwin, A Conceptual Framework for Action on the Social Determinants of Health, Gene (...)
• 43 Ibid.
• 44 P. Braveman and L. Gottlieb, “The social determinants of health: it’s time to consider the causes o (...)
• 45 A-M. Hancock, “When Multiplication Doesn’t Equal Quick Addition: Examining Intersectionality as a R (...)
• 46 See further details in E. McGibbon and C. McPheron, “Applying intersectionality & complexity theory (...)
• 47 V. Navarro and L. Shi, “The Political Context of Social Inequalities and Health”, International Jou (...)
• 48 E. McGibbon, Oppression: A Social Determinant of Health, 2nd Edition, Halifax, Fernwood Publishing, (...)

15Regarding the climate-health crisis, intersectionality is promising to uncover how climate inequalities and health inequalities are intertwined. Health inequalities are related to many factors that are both medical and social. This integrative approach led to the conceptual framework of the social determinants of health (SDH) based on the values of equity, human rights, and the distribution of power42. They are non-medical factors having an impact on health, such as education, social class, income, gender, race, etc.43 SDH are social factors shaping health and considered the “causes-of-the-causes” of health, as called by Braveman44. It is a broad health conception that paved the way for other determinants like the ecological determinants of health. It establishes that ecological factors and human health are interrelated and essential to consider regarding the current environmental challenges45. The consideration of the environmental impact on health grows up with the eco-health literature that considers health threats from zoonoses or natural events. Following this willingness to adopt a larger comprehension of health, systemic and structural powers start being recognized health parameters as well. The structural determinants of health are neoliberalism, patriarchy, colonialism, white privilege46. Social, political, cultural, and economic structure of society are impacting health and must be considered in public health policies47. SDH, ecological determinants of health and structural ones are all parameters that need to be considered to understand the health status of a population or an individual48.

• 49 C. Kuran et al., “Vulnerability and vulnerable groups from an intersectionality perspective”, Inter (...)
• 50 R. Abate, “Youth and Indigenous Voices in Climate Justice: Leveraging Best Practices from U.S. and (...)

16The intersection of the three kinds of determinants shows how intersectionality as method can be relevant regarding public health. Its potential in climate change litigation lies in the fact that it captures how historical forces, political and cultural structures play an important role in shaping vulnerability – especially in time crisis49. It also exposes the vulnerability of a group of people and why they need specific attention and protection. Its effectivity in climate change litigation has been discussed in climate litigation literature. Indeed, US and Canadian litigation showed how intersectionality played a role in judicial victories50. By framing the intersectionality between age and indigenous status, targeting a specific law, and claiming attempts to fundamental rights, some claimants succeeded in winning their case.

• 51 M. Hall and R. Wright, “Systematic Content Analysis of Judicial Opinions”, California Law Review, 9 (...)
• 52 Ibid.

18Cases will be analyzed through a systematic content analysis method to learn about health arguments evolution in the judicial arena51. This method requires to settle a systematic case selection, to adopt a coding scheme to avoid biasing the study, and to extract a quantitative analysis from the collected empirical data52. To study intersectionality-framed arguments, cases were consciously chosen for the issues they had at stake. They were preselected according to three criteria among the database

• 53 To know more about the scope, the data collection process, and the limitations of the database, see (...)
• 54 Whether it is health rights or health arguments.

19The Climate Change Laws of the World built by the Grantham Research Institute at LSE and the Sabin Center at Columbia Law School53. Cases must: be held against Governments (1), raise health issues54 (2), and claimants must bring at least one other discrimination factor such as race, ethnicity, age or gender (3), to have an intersectional approach in the demand. For the purpose of providing a preview of further research, cases were selected consciously. The aim was to represent the study through different forms of domination found in the database. Four cases were chosen according to the discrimination factors involved, among fifteen decisions meeting the criteria. They raise questions of gender, ethnicity status, age, and health issues.

• 55 This four-cases study is an overview of the further research currently made in my PhD thesis. The m (...)

20The required defined coding scheme will be available in the table below. The three criteria defined above are systematically looked for in three different levels of documents, representing different stages in the judicial process: complaint, lower court decision, and higher court decision. If court decisions are not available yet because the case is still pending, debates between parties are studied. After exposing empirical findings, an analysis on the observed patterns will be provided55.

• 56 Juliana v. United States, Oregon Federal Court, 1^st of June 2023.
• 57 Ibid.

21The four cases do not bring the same questions of vulnerability and are not at the same level of progress. Three out of them are still pending and subjected to different procedures and jurisdictions. The first case, Juliana v. United States, is brought by 21 young claimants against the US government (a). It is a famous case in climate change litigation as it is the first one held by young people in the United States and based on constitutional grounds. The case has been on-going since 2015 and recently got the authorization to proceed to trial56. The case was already allowed to go to trial in 2016, but the Obama and Trump administrations repeatedly fought against this decision. The studied documents here will be the complaint brought by defendants in 2015, the first decision of judge Aiken’s district court, and the 2020 decision to dismiss the case handed down by the district court of appeal. Recent developments occurred in the case as Judge Aiken granted the youth plaintiff’s motion to amend their case, in order to correct the identified gaps by the court of appeal. She ruled that the case could proceed to trial on this amended complaint57.

• 58 Despite the Court’s refusal to recognize the applicants’ status of individual victims, the ECtHR ac (...)

22The second case, KlimaSeniorinen v. Switzerland is held by group of elderly women acted against the government to challenge its insufficient climate policies (b). The case was dismissed by the lower administrative court and by the highest national court, the Swiss Federal Tribunal. The exhaustion of national remedies allowed the claimants to bring the case in front of the European Court of Human Rights (ECtHR). In the case-study, attention is given to the national decisions, although the first decision of the European Court of Human Rights (ECHR) on climate matters is extremely enriching and raises important questions about the intersection of vulnerabilities58. Despite its significance, this study is limited to analyzing national decisions. The complaint, the administrative court decision, and the federal Tribunal decision will be studied.

• 59 Accion de tutela is a judicial mechanism “to claim before the judges, at any time and place, throug (...)

• 60 J. Setzer and C. Higham, Global Trends in Climate Change Litigation: 2021 Snapshot Policy Report, L (...)
• 61 J. Setzer and C. Higham, Global Trends in Climate Change Litigation: 2022 Snapshot, op. cit., p. 47

25The following analysis is based on the data shown in the table. It exposes the similarities, differences, and judicial strategies that can be observed within the four cases. Without proposing a theorization of these empirical findings, the analysis tends to reflect on possible trends and strategies that may emerge from the four judicial paths studied. This attempt to identify strategies follows Setzer and Higham’s ambition implemented in their annual litigation reviews60, where they explain that classifying cases by strategies can offer a better understanding of climate trials, without different cultures or legal grounds becoming obstacles61. Considering the limitations expressed in the introduction, no firm conclusions were drawn regarding legal reasoning trends and strategies for circumventing these pitfalls. However, three main observations can already be made from the data collected and each of them are going to be detailed below.

• 62 J. Peel and H. Osofsky, “A Rights Turn in Climate Change Litigation?”, Transnational Environmental (...)
• 63 J. Setzer and C. Higham, Global Trends in Climate Change Litigation: 2023 Snapshot, op. cit., p. 33

26The first one relates to the mobilization of human rights and fundamental norms to invoke health-related rights. All plaintiffs based their claim on health-related rights such as the right to life, the right to health or the right to a healthy environment. Those rights are protected in fundamental norms, through Constitutions, constitutional laws, or human rights protection instruments like the European Convention of Human Rights (ECHR). Human rights protect individuals’ fundamental rights from any interference, and imply the States’ duty to protect, fulfill, and respect them. They are then one of the most important legal grounds of States’ duty regarding fundamental rights’ guarantee. Approaching climate change litigation through a human rights lens is then a way to challenge States duty to protect population interests. Within climate change litigation strategies, literature analyzed a “human rights turn” where claimants started to base their demand on human rights and domestic fundamental norms to raise the State’s duty of care62. Adoption of national mitigation objectives by States to protect human rights remains a “live issue”63 that has not been settled by many courts. In the cases here, courts mostly do not base their decision on whether a fundamental right’s violation can be recognized. Rather, judges use different judicial mechanisms to justify their decisions, which vary depending on the jurisdiction level. In the lower court, it can be observed that, judges are more likely to analyzing cases through a procedural path: by showing how the chosen legal action is not appropriate, by explaining that climate policies do or do not fall under the judiciary competency, or by denying a sufficient interest worthy of States protection, judges remain focused on considerations of legal procedure rather than deciding on the merits of the case. At a higher level of jurisdiction, judges or plaintiffs finally deal with the merits by questioning state obligations. Regarding intersectionality, the vulnerabilities intersection is addressed through fundamental rights logic only by the Colombian Supreme Court. For the other cases, whether the final decision is in favor of the plaintiffs or not, fundamental rights are not considered through an intersectional lens.

• 64 S. McCormick et al., “Science in litigation, the third branch of U.S. climate policy”, Science, 357 (...)
• 65 S. McCormick et al., op. cit., p. 979.

28The last observation focuses on the paradox between two phenomena. First, climate change litigation is science-based, and judges rely on scientific data to make their decisions64. Climate science is used to determine claimants standing to sue and to assess the harmful effects of States’ actions65. Yet, the decisions confirm climate consequences reality without making the conclusions of climate science regarding vulnerability count into their decision-making. In the case-study, every court referred to scientific reports and studies to state climate change reality. They recognized the vulnerability of these groups, but they do not consider that the current legislation or policies are increasing the inequalities at stake. Climate science accuracy suggests that it would be difficult not to recognize the applicants’ standing to sue. This would explain why dismissed cases here are based on other procedural grounds concerning the method of action itself or the separation of powers. In terms of legal reasoning, it seems that science alone is not enough to establish the causal link between States’ actions and the damages alleged by plaintiffs.

• 66 C. MacKinnon, op. cit., p. 1021: MacKinnon explains that “a footnote had a nervous breakdown, stati (...)

30Regarding the substantive topics of the paper, this non-exhaustive review of judicial proceedings shows how intersectionality enters the legal realm through science. It also shows that it hardly permeates the legal reasoning developed by courts. This observation goes along with McKinnon’s cases study exposing the complexity for judges to adopt an intersectional approach into legal thinking66.

• 67 L. Berkman, I. Kawachi and M. Glymour, Social Epidemiology, Oxford, Oxford University Press, 2014.

32First, it was outlined how science and intersectionality in relation to health inequalities have similar methodologies, which allow intersectional approaches to infiltrate the judicial arena. The recognition of social determinants impacts on health inequalities and of discrimination factors on individual’s vulnerability, are part of a social epidemiology approach67. The results indicate that the intersectional approach of complaints had no impact on the decision taken, whether it is in favor or against the plaintiffs, at least in lower courts. The paradox between science-based decisions and the difficulty for legal reasoning to consider the multifactorial vulnerability remains obvious and should be more investigated.

• 68 M. Desaules, “Strategic Climate Change Litigation: Potential for Legal Adaptation”, McGill GLSA Res (...)

34Thirdly, as strategic climate litigation constantly develops68, studies about vulnerability, health inequalities regarding climate and legal trends in tribunal must be taken further. The paper offered a framework to think about the links between intersectionality, epidemiology, and climate and health inequalities. The purpose of the current study was to determine if courts analyze all aspects of vulnerability without dissociating the different components of inequalities. The first results showed intersectionality-framed complaints had difficulty surviving in the judicial process even though the climate and social crises urgently require a new intellectual paradigm. Therefore, scholars from both humanities and climate science must strengthen their interdisciplinary collaboration to comprehensively address the legal, social, and scientific dimensions of intersectional health inequalities in the context of climate change.