Legal Authority and State Public Health Response to Climate Change

For behold, the day is coming, burning like an oven.

—Malachi 4:1

Now that the Trump administration is reversing previously adopted federal climate change policies, the torch for government leadership in US climate change mitigation and adaptation has passed to states, counties, cities, tribes, and territories. Americans expect action: a 2016 national opinion poll found 61% of Americans at least somewhat worried about global warming, 19% very worried, and 62% identifying global warming as a health issue.¹

There is growing scientific concern that climate change poses grave health dangers to Americans, now and in the future.² These dangers primarily exacerbate existing public health threats and risk factors—for example, infectious and noncommunicable diseases, injuries, disabilities, and public health emergencies. Climate change is associated with at least one qualitatively new threat: the severe neurologic birth defects caused by the Zika virus, whose mosquito vectors are expanding into warming regions. Climate change health dangers also implicate many other sectors that contribute to climate change or that can contribute to mitigation and adaptation.

CAPACITY TO ENABLE PUBLIC HEALTH RESPONSE

Public health departments and systems will require broad capacity to address these dangers. In this context, the public health system encompasses, among others:

• the public health departments of states and other jurisdictions;

• their counterpart environmental, educational, transportation, agricultural, and other agencies;

• health care providers;

• philanthropic foundations; and

• health advocates and researchers.

Capacity, in general terms, comprises the ability to acquire data relevant to climate change health dangers, generate actionable information from those data, and use that information to mount effective population health interventions. Operating elements of capacity include the following:

• sources of surveillance, monitoring, and other data;

• information systems to gather and analyze those data;

• tools to design, implement, and evaluate population health adaptation interventions;

• partnerships with a host of other government agencies and private sector organizations;

• extensive communication channels;

• supportive legal authority and financial resources; and

• a workforce skilled in applying these elements.

To date, public health departments have undertaken climate change–related activities using their existing legal authority. But the magnitude of the effort required to build the comprehensive capacity that public health departments need to address climate change impacts may persuade some public health leaders to seek a broader legal mandate. First, climate change poses broad-spectrum and evolving threats, not limited to the disease-specific, known threats that are the typical subject of public health laws. Second, few, if any, public health agencies are specifically authorized by law to build their institutional capacity to address conventional, let alone more generalized and novel, health threats. Third, public health agencies may want explicit authority to begin and sustain what is likely to be a challenging and decades-long effort.

LEGISLATION TO AUTHORIZE CAPACITY BUILDING

Public health leaders in states and other jurisdictions that are committed to action on the climate change front may wish to explore legislation authorizing development and implementation of strategic plans to build needed capacity in their public health departments and systems.

Such legislation—for example, the draft Comprehensive Climate Change Health Protection Act (draft act) as presented in the online appendix to this editorial (available at http://www.ajph.org)—could have such provisions as:

• authorizing the public health department to spearhead development of comprehensive capacity through a strategic action plan, on the basis of advancing scientific knowledge, shaped in close coordination with partners in other, relevant agencies and sectors and updated periodically;

• encompassing capacity to support adaptive public health interventions and, if appropriate, climate change mitigation as well;

• as elements of the plans: identifying the causes, health impacts, and future trajectory of climate change health threats; specifying the public health capacity required to address those threats; assessing the adequacy of existing capacity; identifying gaps between existing and needed capacity; presenting science-based strategic and action plans to fill gaps; assessing the potential benefits of coordination and collaboration with other states, jurisdictions, and federal agencies; and designating the roles of participating agencies and partners;

• establishing consultative and coordinating bodies such as a science advisory board, a task force of pertinent government agencies, and a jurisdiction-wide advisory council with members representing the public, health care, and other relevant sectors;

• creating a fund to encourage research and innovation in climate change health protection; and

• authorizing appropriations for development and implementation of strategic action plans, research and innovation awards, and other relevant activities.

Interested public health leaders could draw from the draft act as a menu of provisions, revising it and adding provisions to address their specific priorities.

Two legislative attempts have been made to bolster the capacity of US public health agencies to address climate change. Democratic members of the US House of Representatives introduced a bill in 2009 (reintroduced in identical form in subsequent congresses through 2015) to require the US Department of Health and Human Services to develop and implement a strategic action plan focused on improving surveillance, public communications, and other, individual capacity elements.³ The legislation received no committee hearings and did not pass. Hawaii legislation introduced in 2015⁴ met with opposition from the state environmental protection agency; it resulted in a study committee that recommended that the state public health system develop “comprehensive and coordinated adaptation strategies” in collaboration with other sectors.⁵ The recommendation has not been implemented, at least in part for lack of resources.

WELLSPRINGS OF LEADERSHIP

Every state and other nonfederal jurisdiction potentially can consider legislation such as the draft act. Those with the greatest interest may be the states that have committed—following the administration’s decision to withdraw from the Paris Agreement—to reducing greenhouse gas emissions and to implementing climate change adaptation measures. As of October 2017, these included the states of California, Colorado, Connecticut, Delaware, Hawaii, Massachusetts, Minnesota, New York, North Carolina, Oregon, Rhode Island, Virginia, Vermont, and Washington as well as Puerto Rico. Several of these states—California, Massachusetts, New York, Oregon, Rhode Island, and Vermont—also have participated in the Centers for Disease Control and Prevention–sponsored Climate-Ready States and Cities Initiative, assessing climate change–related health threats, identifying vulnerable populations at high risk, and exploring new surveillance methods.⁶

Responding effectively to climate change health threats may prove to be one of the most demanding challenges public health departments have ever shouldered. There is an urgent need to ensure that our public health system has the operational capacity it needs to address this challenge. In the absence of federal leadership, public health leaders in states and other jurisdictions can take the initiative, using the draft act to stimulate discussion, formulation, and, if they so choose, enactment of legislation to authorize and fund development of comprehensive capacity. The draft act builds on valuable ideas contained in earlier congressional and Hawaiian legislation and adds provisions to support a systematic, multisectoral, and long-lived strategy to attain that goal, initially in individual states and other jurisdictions, and pointing ultimately in the direction of nationwide capacity development.