The 1964 Civil Rights Act prohibits discrimination against recipients of federal funding, including those covered by Medicaid and Medicare, along with actions that have racially disparate impacts. The Department of Health and Human Services’ Office for Civil Rights, which is responsible for enforcing civil rights laws, has never addressed, much less recognized, the climate crisis despite the fact that communities of color disproportionately suffer innumerable and unrelenting climate-related health harms. Failing to address this injustice constitutes both environmental and institutional racism.
The U.S. currently accounts for approximately 14% of total annual global carbon emissions, and is responsible for upward of 40% of total global historical carbon emissions. The country’s health care industry, which receives more than one-third of its revenue from public health insurance programs, accounts for approximately 8.5% of total U.S. emissions and approximately 25% of total global health care emissions. This is due in part to the energy intensity of U.S. hospitals, which is more than twice that of European hospitals.
The health harms caused by the health care industry’s emissions alone are equal to the number of preventable medical error deaths, or upward of 98,000 annually. This should not come as a surprise — 58% of annual excess U.S. deaths and 8 million annual global deaths are associated with fossil fuel use.
The climate crisis disproportionately imposes health harms on people of color and those with low incomes. Research published last year in the journal Science Advances found that racial and ethnic minority populations, regardless of income and regardless of urban or rural location, are disproportionately exposed to higher levels of 12 of 14 sources of fine particulate air pollution (expressed as PM2.5, or two and one half microns or less in diameter), which is largely the result of fossil fuel combustion and constitutes the largest environmental cause of human mortality.
Climate-related health harms also disproportionately affect Medicare and Medicaid beneficiaries. As shown in a 2019 study of health care costs associated with 10 climate-sensitive case study events, including Hurricane Sandy, 64% of total health-care-related costs were borne by the Medicare and Medicaid programs.
Although Americans may have rights to “life, liberty, and the pursuit of happiness,” they apparently do not have a right to a survivable climate. In Juliana v. the United States, the 9th Circuit Court of Appeals ruled in 2020 that Americans do not have a constitutional right to a survivable climate. Both the federal government and the court’s justices accepted as fact that degraded air and water quality and excessive heat and drought caused by Anthropocene warming had damaged the 21 mostly minority plaintiffs’ physical and psychological well-being.
Since 2016, The Lancet’s “Countdown on Health and Climate Change,” which in part quantitatively documents climate-related health impacts, exposures, and vulnerabilities, has documented this reality. Its sixth “Countdown” report, published in October 2021, concluded that “the health impacts of climate change are inequitable, with disproportionate effects on the most susceptible populations in every society, including people with low incomes, members of minority groups, women, children, older adults, people with chronic diseases and disabilities.”
The Obama administration identified the same reality via the chapter, “Populations of Concern,” in its encyclopedic 2016 report, “The Impacts of Climate Change on Human Health in the United States: A Scientific Assessment.”
That the climate penalty is particularly exacting on low-income people was made painfully clear by Philip Alston, a professor at New York University School of Law, in his 2019 assessment, “Climate Change and Poverty,” a report he drafted while serving as the United Nation’s Special Rapporteur on extreme poverty and human rights. Because “governments … have failed to seriously address climate change for decades,” Alston concluded, “climate change will have devastating consequences for people in poverty.” As a result, he wrote, “climate change threatens to undo the last 50 years of progress in development, global health and poverty reduction.”
We are currently experiencing what Alston termed “climate apartheid,” in which governments’ failure to mitigate Anthropocene warming effectively sanctions an “unconscionable assault on the poor.”
Title VI, Section 601 of the Civil Rights Act requires as a condition of receiving federal funding that recipients are prohibited from discrimination against any person based on race, color, or national origin. Though the act does not specifically note health care, its meaning was immediately appreciated by federal health care policymakers. Title VI was successfully exploited in 1966 by the newly created Medicare program to compel hospitals to desegregate. Title VI, Section 602 authorizes federal agencies to implement Section 601 via rule making that would prohibit racially disparate impacts or deny equal protection.
HSS and its Office of Civil Rights are also bound by laws related to environmental policy. The 1969 National Environmental Policy Act (NEPA) requires all federal agencies to identify and evaluate “major Federal actions significantly affecting the quality of the human environment.” Such actions require agencies to file environmental impact statements. The courts have interpreted NEPA to mean that agencies are required to “take a hard look at environmental consequences” of their proposed actions, consider alternatives, and publicly disseminate such information before taking final action.
In an effort to marry NEPA with environmental justice, the Clinton administration in 1994 issued Executive Order 12898. This order, which is still in effect, directs federal agencies “to the greatest extent practicable and permitted by law … make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies and activities on minority populations and low-income populations.” The executive order also requires agencies to develop environmental justice strategies that in part promote enforcement of all environmental statutes in areas with minority and low-income populations.
Clinton’s executive order led to the production of several guidance documents. For example, in its 2016 report, “Promising Practices for EJ Methodologies in NEPA Reviews,” the Environmental Protection Agency encouraged agencies to consider as a guiding principle how the impacts from a proposed regulatory action “could potentially amplify climate change-related hazards … in minority populations and low-income populations.” While environmental justice is not defined in federal statute, the EPA defined it in part as “fair treatment,” meaning “no group of people should bear a disproportionate share of the negative environmental consequences resulting from industrial, governmental and commercial operations or policies.”
Response to date
The Office for Civil Rights has neither recognized nor addressed the disproportionate effect climate-related health harms have on people of color. For example, none of its 50 FAQs address the problem. Searching all of the office’s several hundred posted news releases and bulletins for “climate” and “environment” yields the same result.
I asked the director of the office, Lisa Pino, about this, but my request for an interview was declined.
OCR’s indifference is consistent with HHS more broadly
The Centers for Medicare and Medicaid Services, which is part of HHS, has never addressed climate crisis-caused health harms. Though CMS in 2021 included in its Medicare administrative rulemaking numerous requests for information concerning health equity, none mentioned climate-crisis-related health effects. None of CMS’s current efforts to create new strategic visions for Medicare, Medicaid, and the Children’s Health Insurance Program mention the climate crisis. These realities help explain why searching the CMS website yields just one mention of “climate change” in a 2013 proposed rule concerning emergency preparedness.
Reading HHS’s recent “Climate Action Plan” is another dead end. The report states the department is “committed to protecting the health of all Americans by integrating environmental justice and equity into our work” but never mentions either Medicaid or Medicare.
The climate crisis is not listed as one of 15 priority topics for the Assistant Secretary for Planning and Evaluation, nor has that office published a policy or planning paper on the subject. The climate crisis is not one of the five listed priorities for the Office of the Surgeon General; is not identified under its fifth priority, “emerging public health threats”; and is not the topic of any of the Surgeon General’s 57 “public health reports” dating back to 2008. And Xavier Becerra, the HHS secretary, has yet to give a speech concerning Anthropocene warming, the greatest threat to human and planetary health in history.
HHS’s indifference to the climate crisis helps explain why in late January 2022 the U.S. Government Accountability Office added HHS leadership to its High-Risk List because GAO auditors found it doubtful whether HHS is prepared to respond to, as the GAO stated, “extreme weather events, such as hurricanes.”
The Office for Civil Rights’ lackluster performance concerning the climate crisis has not been lost on the Biden administration. One week after Biden took office, the White House issued Executive Order 14008, “Tackling the Climate Crisis at Home and Abroad,” which essentially aims to update Clinton’s executive order. In an effort to secure environmental justice, the Biden administration executive order directed HHS to establish an Office of Climate Change and Health Equity.
This office, which was formally stood up in August 2021, is located within the Office of the Assistant Secretary for Health at HHS. It is tasked in part to “identify communities with disproportionate exposures to climate hazards” and “address health disparities exacerbated by climate impacts.” It has no stated responsibilities related to civil rights and appears to have no interest in civil rights enforcement.
The Office of Climate Change and Health Equity is largely preoccupied by co-chairing, along with the National Academy of Medicine, the Action Collaborative to Decarbonize the U.S. Health Sector, which was launched in September 2021. Though the collaborative includes a policy workgroup, the Office of Civil Rights does not participate, and relevant civil rights or equal protection issues are not on the collaborative’s agenda. Per Clinton’s executive order requiring agencies to develop environmental justice strategies, it appears the Office of Climate Change and Health Equity now owns this responsibility, though it does not identify any environmental justice strategies.
In late February 2022, the United Nations’ Intergovernmental Panel on Climate Change (IPCC) released its bleakest warning yet. The 3,500-page report concluded that, “everywhere is affected, with no inhabited region escaping dire impacts from rising temperatures and increasing extreme weather.” The UN Secretary-General, António Guterres, aptly termed it “an atlas of human suffering.” The day the IPCC report was released the Office for Civil rights published a memo on cybersecurity.
Considering the increasingly extreme and deadly effects climate-related health harms inflict on communities of color (think: drowning in a basement apartment), it is worth recalling the never-more prophetic 1966 statement by Martin Luther King Jr., “Of all the forms of inequality, injustice in health is the most shocking and inhuman” and James Baldwin’s 1955 observation, “the Negro breathes the past we deny.”
David Introcaso is a vice president for regulatory policy at Strategic Health Care in Washington, D.C., and host of “The Healthcare Policy Podcast.” The opinions expressed here are his alone and do not necessarily represent those of his employer.