by David Introcaso
In late March the United Nations adopted a landmark resolution requesting an advisory opinion from the International Court of Justice “on the obligations of States in respect of climate change.” Specifically, the resolution seeks an opinion regarding legal consequences under international law states may face for acts or omissions that have caused significant damage to the climate that in turn harm other states. The US opposed the resolution arguing disingenuously diplomatic efforts constitute the best approach to addressing the climate crisis. Disingenuous in that the US, for example, is the only country not to sign the UN’s 1992 Convention on Biological Diversity. Also in late March the European Court of Human Rights heard two lawsuits brought by French and Swiss citizens who argued their governments had violated their human rights by failing to address the climate crisis. In the fall the European Court will hear a related case brought by Portuguese citizens that names all 27 European Union and five other nations as defendants.
Because annual global greenhouse gas emissions (GHG) continue to increase and because there is no credible pathway to limiting global warming to an average of 1.5C, not surprisingly the number of climate crisis-related lawsuits have rapidly increased since 2020. Of the 2,000 globally 500 are in the US. The most noted US lawsuit is Juliana v the US, a case that has been termed the most important in history largely because the US is responsible for 40% of excess global GHG emissions. In 2015, 21 youth plaintiffs, moreover minorities as young as eight, filed a lawsuit against President Obama and seven executive departments including Agriculture, Commerce, Energy and the Department of Defense, the world’s largest institutional GHG polluter. The Department of Health and Human Services (HHS) was not named despite the fact the healthcare industry, extensively regulated and almost entirely financed or subsidized by the federal government, emits four times more GHG emissions than the US defense department. The plaintiffs allege the federal government has violated, in part, their constitutional due process rights by supporting the use of fossil fuels for over fifty years. The government does this, the plaintiffs argue, despite knowing resulting GHG emissions endanger the climate’s stability thereby compromising the plaintiffs’ health and the health of all future Americans. The plaintiffs requested the court to order the government to implement a plan to phase out fossil fuel use and draw down excess atmospheric GHG emissions.
In a 2020 the US 9th US Circuit Court ruled 2-1 in favor of the defense. The court essentially concluded “redress must be presented to the political branches of government,” i.e., the Congress. The majority was though sympathetic to the plaintiffs ruling that the government “affirmatively promotes fossil fuel use in a host of ways” despite having “long understood the risks of fossil fuel use.” The plaintiffs therefore had legitimate claims of “concrete and particularized injuries,” because the “political branches of the government have to date been largely deaf to the pleas of the plaintiffs.”
In a scathing dissent Judge Josephine Staton found “the injuries experienced by the plaintiffs are the first wave in an oncoming tsunami . . . that will destroy the United States as we currently know it.” “Never before has the United States confronted an existential threat,” she wrote, “that has not only gone un-remediated but is actively backed by the government.” Nevertheless, “the government accepts the fact that the Unites States has reached a tipping point crying out for a concerted response – yet presses ahead toward calamity.” “The government insists that it has the absolute and unreviewable power to destroy the nation.” “The Constitution does not, Staton concluded, “condone the Nation’s willful destruction.”
While Juliana remains under appeal, next month for the first time a related case will go to trial in state court. In Held v Montana 16 youth plaintiffs as young as two are suing the Montana governor and the departments of Environmental Quality and Natural Resources and Conservation and the state Public Service Commission. Not named is Montana’s the Department of Public Health and Human Service. The plaintiffs allege the state has violated their state constitutional right guaranteeing them “the right to a clean and healthful environment.” The plaintiffs argue in part the state has explicitly promoted the coal industry. Six Montana coal mines produce 5% of the nation’s annual total supply and fuels the largest share of Montana’s electrical output at 47%. This helps explain why Montana has warmed by an average of 1.5C or 20% higher than the global average. There are related cases presently pending in Florida, Hawaii, Utah and Virginia. None name state health departments as defendants.
These cases and numerous related others are based on the fact that the climate crisis has caused “concrete and particularized injuries.” That explains why the World Health Organization (WHO) has termed fossil fuel use “the single biggest health threat facing humanity.” The United Nation’s Special Rapporteur on the promotion of human rights in context of the climate crisis has stated it presents “the most pervasive threat to . . . human societies the world has ever experienced.”
As the climate crisis intensifies and accompanying health harms worsen, the question increasingly begged is when will US government healthcare policymakers be named as plaintiffs in these cases? Particularly since it is increasingly clear neither healthcare policymakers, nor the healthcare industry, is legitimately interested in eliminating or at least significantly reducing healthcare’s lethal GHG pollution.
US healthcare’s refusal to mitigate its GHG emissions is remarkable for numerous reasons. Among others, the industry emits a massive amount of GHG pollution. US healthcare, the largest industry in the largest economy in the world, emits approximately 500 million metric tons of GHG pollution, the equivalent of burning 553 billion pounds of coal annually. These account for 8.5% of total US and 25% of total annual global healthcare emissions. If the US healthcare industry was its own country, it would rank 11th or 12th worldwide in GHG pollution.
The health harms associated with GHG emissions, the greatest negative economic externality ever invented, are innumerable adversely impacting everyone, everywhere, always. For example, according to the WHO nearly everyone on the planet breathes unhealthy air largely the result of fossil fuel combustion. Healthcare’s GHG emissions alone have been estimated to be commensurate with upwards of 98,000 deaths annually just in the US. This helps explain why fossil fuel use constitutes the largest environmental cause of human mortality. Fossil fuel-related air pollution constitutes 58% of excess annual US deaths and eight million globally. Associated healthcare costs in the US have been estimated to exceed $820 billion annually.
GHG emissions disproportionately harm the 150 million Americans insured by Medicare and Medicaid. Medicare seniors, because their health is already compromised in part due to higher incidence rates of co-morbidities, are at even greater risk of related arthropod-borne, food-borne and water-borne diseases because the climate crisis can increase the severity of over half of known human pathogenic diseases. Extreme heat episodes are particularly deadly. Over the past 20 years heat-related mortality among seniors has increased by 54%. Children, 40 percent of whom are Medicaid beneficiaries, are uniquely vulnerable. Fine respirable particles resulting from fossil fuel use are particularly harmful because children breathe more air than adults relative to their body weight. Research published last year found related health effects to the fetus, infant and child include preterm and low-weight birth, infant death, hypertension, kidney and lung disease, immune-system dysregulation, structural and functional changes to the brain and a constellation of behavioral and mental health diagnoses. There is certainly something antithetical about federal policymakers poisoning the most climate vulnerable, Medicare and Medicaid beneficiaries.
From a strictly economic or market perspective healthcare’s continued use of fossil fuels is unsustainable. It is within the industry’s financial self-interests to decarbonize. Studies by among others the Department of Energy, the International Renewable Energy Agency, the National Renewable Energy Laboratory and the World Resources Institute show renewable energy resources are comparatively cheaper per megawatt hour, have lower operating costs, and can be developed more rapidly and quickly offset their manufacturing energy. Three years ago, the International Energy Agency declared solar power the “cheapest power in history.” During the decade ending 2020, solar energy prices fell 89% on average, wind energy by 70% and battery storage by 88%. Renewables have consistently experienced exponentially decreasing costs while coal prices for example are, after adjusting for inflation, similar to what they were 140 years ago. Extractive resources become increasingly less accessible. This explains why a study published in January found that it is more expensive to continue to operate all but one of the US’s 210 coal plants than to build entirely new solar or wind energy generation. Simply stated, it is cheaper to save the climate than to cook or destroy it.
Finally, we should expect the healthcare industry to deliver healthcare services by pursuing, per the US Department of Health and Human Services (HHS) mission statement, “sound, sustained advances in the sciences underlying medicine, public health, and social services.” Healthcare professionals take a moral oath to do no harm. Instead of a business model rooted in beneficence, the industry is allowed to operate as a maleficent harm-treat-harm doom loop where health harm is treated in a way that further compounds health harm. Because health harms resulting from GHG emissions are largely foreseeable, the industry’s behavior can be described as reckless, negligent, the worst sort of moral hazard and moral treason. The Hippocratic Oath has become an absurdity.
A case against the healthcare industry can be readily made. Disinterest in decarbonizing is obvious. As Yale’s Dr. Jodi Sherman politely phrased it last year in Congressional testimony, “The vast majority US healthcare organizations remain uncommitted to timely action.”
The industry lags far behind all other major economic sectors in simply reporting its GHG emissions publicly. Healthcare trade and professional associations, with rare exception, do not discuss climate breakdown and the industry’s contribution to it. It is not a policy priority for the American Hospital Association and the Pharmaceutical Research and Manufacturers of America (PhRMA) that represent the industry’s two largest GHG emitting sectors. This helps explain why less than 5% of hospitals and pharmaceutical companies are defined as energy efficient under Environmental Protection Agency’s Energy Star program and why industry participation in the Department of Energy’s Better Buildings program is trivial. It should be noted healthcare is understandably energy intensive but it is also significantly energy inefficient. For example, US hospitals consume well over two times more energy than European hospitals with no discernable quality advantages. Decarbonizing is also not a priority for America’s Health Insurance Plans ((AHIP), the commercial health insurance trade association. Searching the American Medical Association’s (AMA’s) healthcare advocacy page for “climate change” yields zero results. The AMA does still however recognize for “significant accomplishments to advance public health” the serial child molester and former US House Speaker, Denis Hastert. Though healthcare significantly outspends all other economic sectors lobbying Congress, the industry ignores climate-related legislation. The lobby did not spend a nickel on the 2009 Waxman-Markey cap and trade bill that passed in the House and promptly died in the Senate. Healthcare is also loathe to divest in fossil fuels made evident by the fact their investments account for an estimated 28% of their GHG emissions. Per The Lancet’s 2022 “Countdown on Health and Climate Change” report, subtitled “health at the mercy of fossil fuels,” between 2008 and 2021 1,506 organizations with $40 trillion in assets pledged to divest. Only 27 are health institutions that account for 0.2% of total assets.
The industry’s climate nihilism is made possible by the US government. Though we would like to believe US healthcare is largely a private, commercial business, the federal government funds most of it. Beyond the Medicare and Medicaid programs, Hill-Burton legislation helped finance nearly 7,000 healthcare facilities, the Veterans Administration insures 10 million, the employer-sponsored health insurance tax exclusion costs $280 billion, the Affordable Care Act subsidies 16 million, hospitals’ tax exempt status costs $30 billion, the National Institutes of Health spends $50 billion, $18 billion is spent for medical residency training, and on and on.
Suffice to say Congressional Republicans remain divorced from reality, here the immutable laws of physics. Unwittingly or not, they intend ecocide or biological annihilation since the climate crisis is an increasing contributor to the planet’s ongoing and accelerating human-caused sixth mass extinction.
Republican intransigence helps to explain why the Congress has done nothing to require the healthcare industry to decarbonize or even improve climate crisis-related Medicare and Medicaid care delivery. For example, Medicare, the so-called market maker, Medicaid, along with the commercial insurance industry do not risk adjust patients for climate vulnerability and use no climate-related diagnostic codes, quality measures or payment incentives.
This past Democratic-controlled Congressional session, the PREVENT Pandemics Act, that largely passed in end of session funding package, did not address much less recognize the climate crisis even though the legislation promised to better prepare the nation for the next public health emergency. The climate crisis is a permanent public health emergency. This omission was particularly odd because the bill’s sponsor, Senator Patty Murray, then Chairwomen of the then Senate HELP Committee, the Senate’s public health committee, had just witnessed her Washington State constituents suffer a 1,000 year heat wave, made 150 times more likely by Anthropogenic warming, that led to the deaths of thousands. Last year the Congress also passed Food and Drug Administration user fee legislation. Since this considered must pass legislation, user fee legislation could have required pharmaceuticals to publicly report their GHG emissions or far better still begin to tie drug and medical device approvals to industry emissions reduction. Curing people is no excuse, one observer noted, for killing the planet.
The Congress did pass last August the widely-reported Inflation Reduction Act (IRA) that includes an estimated $370 billion in federal funding to promote clean energy. The legislation was unprecedented in part because the IRA’s clean energy tax credits are the first time available to tax exempt entities that include the majority of US hospitals. To what extent the healthcare industry chooses to exploit these is of course unknown, particularly smaller providers legitimately in need of financial support. What is known is that the Biden administration’s recent approval of the Alaskan Willow oil drilling project will negate a substantial percent of emissions avoided by the IRA. In addition, House Republicans are presently attempting to rescind most of these tax credits by leveraging their vote to raise the debt ceiling. The IRA also included $148 billion in related program funding to 16 federal departments and agencies except the Department of Health and Human Services (HHS).
Recently, HELP Committee member, Senator Ed Markey (D-MA), introduced the Green New Deal for Health Act. This bill also does not require the healthcare industry to either publicly report its GHG emissions or be time bound to eliminate them. These failures are likely moot since Senator Markey introduced the legislation without a single Senate Democratic cosponsor and since the bill is DOA in the Republican-controlled House.
Decades of Congressional failure to address the climate crisis is Orwellian, reminiscent of his characterization of Party members in 1984. They “could be made to accept the most flagrant violations of reality,” Orwell wrote, “because they never fully grasped the enormity of what was demanded of them, and were not sufficiently interested in public events to notice what was happening.”
Concerning the White House or the executive branch of government, administration officials has been acutely aware of climate-related health effects for several decades. Gus Speth exhaustively documented this reality in 2021 in, “They Knew, The US Federal Government’s Fifty-Year Role in Causing the Climate Crisis.” HHS is certainly well aware in part because department staff contributed to an exhaustive three-year study published by the Obama administration in 2016 titled, “The Impacts of Climate Change on Human Health in the United States: A Scientific Assessment.”
Soon after the Biden administration took office the White House issued an executive order (EO) that pledged to take a “whole-of-government” approach to address the climate crisis. The EO made no mention of Medicare or Medicaid but did direct HHS to create an Office of Climate Change and Health Equity (OCCHE). When HHS Secretary Xavier Becerra, a lawyer, announced the new office later that summer, he promised the department would “use everything, every tool at our disposal to address the climate crisis.” The Climate Change Office quickly partnered with the National Academy of Medicine (NAM) to create an “action collaborative” to decarbonize the healthcare industry.
The collaborative effort began inauspiciously when NAM President Dr. Victor Dzau kicked off its public launch by noting there was no clear business case for the healthcare industry to decarbonize. Possibly in response to Dr. Dzau, Duke University’s Drew Shindell argued a few weeks later in Congressional testimony that coal, that accounts for 20% of US electrical generation, is so damaging to human health the fuel would be a “money-loser for American citizens and businesses even if coal-fired power was free.” “Working to mitigate climate change while leasing Federal lands for coal mining is, Shindell argued further, “like setting up a health center that gives out free cigarettes.” Now 21 months later, the HHS/NAM collaborative, composed largely of vested industry interests including the AHA, the AMA and PhRMA working behind closed doors, has generated no reports, no policy recommendations and consequently no expectations.
The climate change office was also given health equity responsibilities likely because HHS’s Office of Civil Rights, created in 1967 primarily to enforce the 1964 Civil Rights, had never recognized the fact that the climate penalty is moreover paid by minority populations. This is despite the fact Title VI of the 1964 law requires as a condition of receiving federal funding, here Medicare and Medicaid reimbursement, recipients be prohibited from discrimination against any person based on race, color or national origin. Enforcement of Title VI explains why hospitals were required to integrate in 1966 under newly-passed Medicare legislation.
Possibly recognizing the department was guilty of both environmental and institutional racism, HHS created last year an Office of Environmental Justice to be situated in the Office of Climate Change – a curious decision since the Congress continues to refuse to fund the office. Equally curious, soon thereafter HHS announced an Environmental Justice Index (EJI) that will score environmental burden by census tract. Since health insurance companies will almost certainly use publicly-reported EJI scores to help price their plans and since the EJI will certainly validate that higher scoring census tracts are moreover populated by minorities, the index will, literally, institutionalize climate apartheid.
What Secretary Becerra has accomplished is to launch a pledge initiative whereby hospitals, pharmaceuticals and other healthcare organizations promise to reduce their GHG emissions. Though likely well intended, the effort in practice is counterproductive or at minimum constitutes virtue signaling since participants are not required to use any uniform and widely accepted accounting protocols, standards or metrics.
Federal policymakers’ greatest failure has been HHS’s Centers or Medicaid and Medicare Services (CMS) refusal to promulgate any climate-related Medicare and Medicaid regulatory rules. During the first two full years of rule making under the Biden administration, CMS failed to propose any Medicare regulations that would mitigate the industry’s emissions or improve climate-related Medicare delivery. CMS did at least acknowledge the problem. For example, the agency’s proposed 2023 inpatient hospital rule included a climate-related RFI that amounted to asking question about which the agency already knew the answer: do healthcare providers have plans to reduce their GHG emissions? HHS’s own data shows that just 19 of the 50 largest healthcare providers have simply identified emission reduction targets.
Since to date none of CMS’ five 2024 Medicare proposed and final rules including the 2024 inpatient proposed rule mention climate and since 2024 is an election year when administrations carefully avoid proposing anything controversial in rulemaking, it appears increasingly certain HHS under the Biden administration will successfully ignore addressing industry GHG emissions and climate-related healthcare delivery.
Concerning Medicaid policy, suffice to say CMS does not recognize the climate crisis in the agency’s Medicaid strategic vision, not in CMS’ overall strategic plan, nor can one find any related federal Medicaid regulatory guidance or Medicaid state waivers that attempt to address the climate crisis. For example, none of Montana’s nine Medicaid waivers recognize the problem.
Numerous reasons explain why CMS policymakers and others are able to ignore the climate crisis. The one appropriately noted over and again is political will. Beyond industry and Congressional apathy, HHS secretaries have never made it a priority. Secretary Becerra has yet to deliver a related speech and recently failed to even mention the topic in testimony before three Congressional committees concerning HHS’s proposed 2024 budget. Beyond the HHS Office of Civil Rights, it is even more remarkable that the HHS Office of the Surgeon General, responsible for generating public debate and building consensus on matters of public health, has never addressed or made climate a priority. If the circle is widened, the Medicare Payment Advisory Commission (MedPAC) and the Medicaid and CHIP Payment and Access Commission (MACPAC) immediately come to mind. Congressionally-created independent agencies given broad authority to recommend program improvements, neither has ever addressed much less recognized the issue. All this has not completely escaped notice. Last year the US General Accountability Office (GAO) added HHS leadership to its High-Risk List because GAO auditors found it doubtful whether HHS was prepared to respond to extreme weather events.
Policymakers do have numerous options to decarbonize the industry. For example, Secretary Becerra could literally address the problem tomorrow. He could require hospitals to begin decarbonizing by exploiting Conditions of Participation (COP) regulations. As the name implies healthcare providers are required to meet COP requirements if they want to participate in Medicare or Medicaid programming. Specifically, Becerra could exploit the “good cause” exception under the Administrative Procedures Act to publish an interim final rule that directs hospitals to publicly report and eliminate GHG emissions by revising COP quality assessment and performance improvement program criteria.
When will the industry’s failure to decarbonize compel litigation? Possibly when we no longer accept the fact that deliberate ignorance or thoughtlessness, moral complacency and the complicity required to harm the public’s health should not define, however marginally, federal healthcare policy.