Does American Health Care Violate the ICJ’s Recent Climate Advisory Opinion?

By DAVID INTROCASO

In late July the UN International Court of Justice (ICJ) announced its long-awaited and highly-anticipated climate advisory opinion.  The ICJ ruling represents an historic moment in climate accountability.

“Obligations of States in Respect of Climate Change”

In a rare unanimous decision, the ICJ opinion concluded “a clean, healthy and sustainable environment” is in part a precondition for the enjoyment of human rights including the right to life and the right to health.  Consequently, the ICJ ruled states including their private actors are obligated to ensure the climate is protected from anthropogenic greenhouse gas emissions (GHGs) and can be held legally culpable by other harmed or unharmed states, groups and individuals for failing to protect the climate.

The 140-page opinion is the result of a 2023 UN resolution that requested the ICJ produce an advisory opinion answering two questions: what are states’ obligations under international law to ensure protecting the climate; and, what are the legal consequences for causing significant climate harm?  In a failed attempt the US State Department opposed the resolution arguing the ICJ can only consider applicable climate treaties such as the 2015 Paris Agreement and to the exclusion of other rules of international law.

In sum, the ICJ found states have substantive, urgent and enforceable obligations under UN climate treaties – and international laws to prevent significant harm to the environment from GHG emissions that includes those resulting from fossil fuel use.  The court broadly defined fossil fuel use as the adoption of laws, regulatory policies and programs that promote fossil fuel production and consumption via leases, licenses and subsidies. 

States must act using “all means at their disposal” that includes adopting appropriate legal and regulatory measures, acquiring and analyzing scientific and technological information and risk and impact assessments, meeting a duty of cessation; and, acting in good faith that includes a duty to cooperate and collaborate internationally.  The ruling also allows for legal action to protect future generations.  The court rejected the argument attributing harm on a case-by-case basis is unachievable stating it is “scientifically possible” to determine each state’s current and historical emissions.  Without naming the US, the ICJ affirmed states not party to UN treaties must still meet their equivalent responsibilities under international law.  (Columbia’s Sabin Center Climate Change Law Blog has examined at length the ICJ opinion.)

US Healthcare’s Contribution to Anthropogenic Warming

Because the ICJ recognizes an inherent link between anthropogenic warming and human rights, the opinion implies the right to health cannot be secured without addressing US health care’s own climate obligations.  Meeting these pose a substantial challenge for the industry for several reasons.

US health care significantly contributes to anthropogenic warming.  Per Northeastern Professor Matthew Eckelman, the industry accounts for a growing amount GHG emissions currently at over 600 million metric tons of carbon dioxide equivalents (CO2e) or 9-10% of total US emissions and 25% of global healthcare emissions.  If US healthcare was its own country it would likely rank 9th, less than Saudi Arabia but more than Germany.      

Two reasons largely explain US healthcare’s carbon footprint.  The industry is immense.  Despite providing care for 4% of the world’s population, last year it constituted a $5.3 trillion market or roughly half of total global healthcare spending.  The industry wastes an enormous amount of energy.  Despite spending over $5 billion annually on energy, equivalent to at least 15% of profits, hospitals are significantly energy inefficient because they continue to consume fossil fuels to first generate heat to produce electricity that is dramatically less efficient than using renewable resources that directly generate electricity or work demand.  End-use energy inefficiency compounds the problem.  For example, only a trivial number of hospitals are EPA Energy Star certified for energy efficiency.  For the ten-year period ending in 2024, 85 or 1.4% of over 6,000 hospitals were on average certified. 

Concerning state obligations, the Congressional has yet to pass legislation or an administration promulgate a regulatory rule to mitigate healthcare’s emissions.  Despite the Biden administration’s effort to “tackle the climate crisis,” the Centers for Medicare and Medicaid Services (CMS) failed to finalize a single regulation.  Like the 2015 Paris Agreement, the ICJ opinion emphasizes climate action “respect” and “promote” the rights of “children, persons with disabilities and people in vulnerable situations.”  Nevertheless, policymakers have looked past the fact Medicaid children and Medicare seniors pay the greatest climate penalty – that becomes increasingly severe as the stock or supply of carbon dioxide and other GHGs continue to accumulate in the atmosphere.  US policymakers also know that as a meta-problem, or a root cause of all others, absent mitigating healthcare’s GHG emissions they cannot claim healthcare is improving or that healthcare delivery does not impose iatrogenic harm.    

As for the industry, clinically healthcare has yet to develop climate-related diagnostic and procedural codes and quality measures, factor in patient risk adjustment and in pay-for-performance programming.  Operationally, The Lancet’s Countdown on Health and Climate Change annually reminds readers healthcare has made trivial progress in divesting in fossil fuels. Last November the now-defunct Office of Climate Change and Health Equity was forced to admit the US Department of Health and Human Services (DHHS) did not know to what extent health care organizations were simply publicly reporting their GHG emissions.  Because the National Academy of Medicine Climate Collaborative made no measurable progress over three years, last October former CMS Administrator Dr. Don Berwick felt forced to reprimand his colleagues stating, “stuff . . . needs to be done now, not later, now, stop complaining the excuses about mandates and cost and business case won’t do the job, nature is unforgiving, she does not care . . . the time for resistance, the time for complaining, it’s over.”  US health care trade and professional associations including those dedicated to hospital care, infectious diseases, pediatrics and public health have to date neither discussed nor recognized the 2023 ICJ resolution and now the ICJ opinion despite knowing, for example, well over half of known human pathogens can be aggravated by climate hazards or pathways.

Add to this, that US health care both contributes to and is impacted by anthropogenic warming means the industry effectively constitutes a harm – treat – harm cycle that increasingly exposes it to systemic financial risk.  Explained simply, if or more likely when anthropogenic warming or climate breakdown leaves US health care unable to absorb or transfer its own insurance risk, credit markets freeze, healthcare assets reprice rapidly and ruthlessly and market failure is achieved.  The US health care industry becomes victim to its own contradiction, victim of its own moral hazard.     

Though the ICJ carries the highest legal, moral and political weight what effect the advisory opinion will have is uncertain.  What is certain is that climate-related costs will continue to increase and the ability to scientifically attribute emissions will continue to improve. The ICJ opinion will affirm plaintiffs’ complaints in 3,000 current climate cases in over 60 countries and provide courts a “panoply of legal consequences” from which to choose including reparations, repeal of GHG emission-enabling laws and regulations and forward-looking measures including cessation, guaranteed non-repetition and ongoing compliance.

David Introcaso is a healthcare research and policy consultant based in Washington, D.C