Advancing Disability Climate Justice in the Courts

On Monday, March 25th, HPOD hosted "Advancing Disability Climate Justice in the Courts," a webinar joinlty organized with the Harvard Law School Environmental & Energy Law Program (EELP). At a time when climate activists are increasingly leveraging human rights frameworks and international instruments to challenge state failures to respond adequately to the global climate crisis through strategic litigation, as evidenced by the recent high-profile victory by a group of older Swiss women's at the European Court of Human Rights, the panel of researchers and litigators with and without disabilities took stock of litigation strategies to advance disability climate justice. Moderated by HPOD’s Director of Advocacy Initiatives, Hezzy Smith, panelists analyzed recent trends in climate litigation in order to make recommendations for how climate litigators can better incorporate the unique climate risks faced by persons with disabilities into their litigation strategies as well as for how disability rights organizations can work with climate litigators to catalyze structural changes that are inclusive of persons with disabilities.

HPOD Executive Director, Professor Michael Ashley Stein, introduced the panel by stressing the importance of disability inclusion in national and global climate action. He underscored that people with disabilities are frequently left out of the planning and response strategies for climate-related disasters, exposing them to higher risks during extreme weather events and other emergencies tied to climate, and that inaccessible emergency shelters and emergency communication systems making it challenging to evacuate or access emergency services during a disaster. As a result, persons with disabilities are two to four times more likely to die or be injured in climate emergencies including heatwaves, hurricanes, and floods, underscoring the urgent need for disability-inclusive climate action, research, and development, as well as the indispensable role that climate litigation can play as a catalyst. 

Juliana Bustamante Reyes, Director of the Programa de Acción por la Igualdad y la Inclusión Social (PAIIS), described a joint submission by PAIIS, HPOD, and the Disability-Inclusive Climate Action Research Program (DICARP) filed with the Inter-American Court of Human Rights, which is poised to deliver an advisory opinion on the scope of states' international human rights obligations to confront to the ongoing global climate crisis in response to a joint request by Colombia and Chile. In its submission, PAIIS, HPOD, and DICARP presented an analysis of the evolving interpretation of the climate-related obligations of States Parties to the United Nations Convention on the Rights of Persons with Disabilities, and urged the Inter-American Court of Human Rights to ensure that States Parties to the American Convention on Human Rights are aware of their obligations under international law to ensure that their climate change adaptation and mitigation measures are inclusive of persons with disabilities. Of the over 200 submissions from civil society that the Court has received, only a handful address the unique intersections of disability human rights and climate justice, which mirrors the global trend of climate litigation either sidelining or overlooking disability climate justice concerns.  

Sébastien Jodoin, Director of DICARP, highlighted how despite the proliferation of climate litigation, few cases address head on the outsized effects of climate change on persons with disabilities, thereby risking further invisibilizing this at-risk group from governmental responses to climate change. By one measure, the UN Environment Programme’s 2023 Global Climate Litigation Report counts 2,180 climate-related cases filed in 65 jurisdictions, including international and regional courts, tribunals, quasi-judicial bodies, or other adjudicatory bodies, such as Special Procedures at the United Nations and arbitration tribunals. Yet, only only two of these cases focus specifically on the impacts of climate change on persons with disabilities. One is Müllner v. Austria, which pending before the European Court of Human Rights, where the applicant, who has a temperature-dependent form of multiple sclerosis, argues that the Austrian government's failure to set effective mitigation measures to reduce greenhouse gas emissions violate his rights to life, to respect for private and family life, and to effective remedies under the European Convention on Human Rights. The other is a complaint brought by Environmental Justice Australia on behalf of five youth with indigenous and disability identities before three United Nations Special Rapporteurs argues that Australia’s Nationally Determined Contributions are inconsistent with its human rights obligations to the Complainants and to young people in Australia, especially young people from First Nations communities and persons with disabilities. 

Finally, Stephanie Duke, Supervising Attorney/Disaster Resilience Coordinator at Disability Rights Texas, described her organization's ongoing efforts to hold city officials accountable for their failure to adequately include persons with disabilities in their disaster and emergency planning, resulting in avoidable suffering by residents with disabilities in the aftermath of the 2021 Winter Storm Uri. Years before the storm, the city claimed that rather than create a separate emergency plan for people with disabilities, it would produce and implement a ‘Whole Community’ Plan that would incorporate “the needs of people with disabilities into all aspects of emergency planning.” Yet, the the city's proposed "Whole Community" Plan never materialized. As a result, the city was unprepared for the storm's adverse impacts millions of people with disabilities, particularly those dependent on home medical devices, leaving them without heat or electricity and poor access to water, transportation, health care, and emergency services. Voglewede et al v. City of San Antonio, filed on behalf of nine plaintiffs with a wide range of disbailities in the Western District of Texas, argues that the city's failure to adopt an emergency plan that adequately included persons with disabilities breached its duty to make reasonable modifications as required by Title II of the Americans with Disabilities Act. The plaintiffs hope not only that the city of San Antonio will fill updates its disaster and emergency plans accordingly, but also to provide a roadmap for disability-inclusive climate adaptation for other municipalities throughout the state.

Hannah Perls, a Senior Staff Attorney at EELP, closed by emphasizing the importance of reliable research on the impacts of climate change on persons with disabilities, even though the burden of collecting data and the stories of persons with disabilities is falling on disability rights advocates who have scarce resources to fill the information gap. This, in turn, might help create "disability-fluent decision-makers." She continued, "All of this work is about persuading people in power take the lived experiences of people with disabilities into account." The capacity for climate litigation to advance disability climate justice goals will turn on the extent that climate litigators can help persuade people in power to do just that.