Facing Extinction: Climate Migrant Crisis

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Category: Environmental Law, Human Rights, Immigration Law, International Law & Diplomacy, Public, Water Law
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Map showing the continents of the the planet Earth with coastal areas marked in red highlighting the effect of a 6 meter rise in sea level. In recent days, President Trump has declared that he would have the United States withdraw from the Paris climate accord.  Business leaders like Elon Musk of Tesla have said that this decision would ultimately harm the economy by yielding the jobs of the future in clean energy to foreign competitors. I argue that withdrawing from the Paris climate accord also serves to exacerbate the climate migrant crisis that will inevitably hit American shores.

The global environment has long impacted migration patterns. For instance, humans have historically left places when deteriorating conditions threatened their survival. However, accelerated effects from climate change are expected to bring about significant and unprecedented changes to global migration patterns. Climate change is rapidly destabilizing global environments,(1) resulting in increasingly more common rising oceans, longer and more frequent droughts, and higher temperatures.(2)  Consequently, changes to global environments will inevitably dislocate people from their homes and nations. In fact, many communities have already started to suffer from the disastrous consequences of climate change. For example, in Gabura, Bangladesh, many of the three thousand people who live in this coastal region have been forced to move their homes onto skinny, man-made embankments to flee the rising ocean.(3)  Yet because of increasingly cramped conditions and dwindling resources, villagers are unable to work, farm, and live as they traditionally have.(4)  Unfortunately, there is no relief in sight, as scientists predict rising waters will completely submerge Gabura and at least seven percent of all Bangladesh before the end of the century.(5)  Parallel stories of growing displacement caused by rising sea-levels,(6) more frequent droughts,(7) and retreating sea ice(8) are found in ever increasing numbers all around the globe.

As nations debate the causes and treatments for climate change, people everywhere are struggling to adapt to new environmental realities. Regrettably, for many adaptation will mean leaving their countries to survive. Such people who are induced to leave their home country because of the climate change are referred to as “climate migrants”.(9)  Presently there is little empirical research to provide anything more than a rough prediction of population displacement that will occur because of climate change.(10)  In fact there is a wide variety of predictions; however this does not undermine the urgency to address the climate migrant crisis. For example, Christian Aid, a British organization that actively provides refugee assistance, predicts that the global number of displaced people may rise to more than one billion by the year 2050, in large part due to climate change.(11)  In comparison, ecologist Norman Myers reports that up to 200 million people may be become climate migrants by the end of this century.(12)  Despite the lack of empirical research, what is certain is that global warming will lead to massive population displacements and climate migration at numbers never before witnessed.(13)  Such displacement will almost certainly lead to extinction of peoples and cultures.

Surprisingly in the U.S. there is no legal instrument that creates legal status for climate migrants. Theoretically, refugee status(14) and temporary protected status (“TPS”) are positioned to help displaced peoples like climate migrants.  However, both fail to do just that.

Looking first to refugee status, the Immigration and Nationality Act(15) is woefully inadequate for the needs of climate migrants because the U.S. has generally settled that the definition of “refugee” does not apply to individuals fleeing the environmental consequences of climate change.(16)  This is because to refugee status requires proof of persecution.(17)  In fact, it is difficult to argue that “scarce resources, degraded economic and environmental conditions, or even increased political turmoil resulting from climate change, meet the standards of persecution.”(18)  Even if a climate migrant could prove persecution, she must also show that this persecution was “on account of race, religion, nationality, membership in a particular social group, or political opinion.”(19)  Climate events does not fall into any of those codified factors. Moreover, to prove that she is a refugee, an applicant must demonstrate that she suffered persecution “imposed by the government or by groups which the government is unable or unwilling to control.”(20)  Climate change nor its consequences were imposed upon climate migrants by their own government or by a group that the government was unable or unwilling to control.(21)  Therefore, climate migrants are not “refugees” under the current statute.

Similarly TPS appears another option for climate migrants desiring to relocate to the U.S.. Under TPS, the Secretary of Department of Homeland Securityxxii may grant temporary legal status and work authorization to immigrants, which the Secretary may extend.(22)  Since TPS designation applies explicitly in cases of natural disasters, it would appear to be the ideal tool for climate migrants coming to the U.S..(24)  However, TPS has many shortcomings. The most obvious limitation is that TPS only applies to individuals already present in the U.S..(25)  Therefore, TPS would not cover a climate migrant attempting to enter the U.S. after fleeing her home in the wake of a severe climate event.(26)  Moreover, this form of relief is discretionary, as the Secretary determines which nationalities qualify for TPS.(27)  Even if a state receives TPS discretionary designation, it is temporary and thus insecure for climate migrants.(28)  It is also concerning that even if a climate migrant is covered by TPS, they may not travel freely outside the country under TPS.(29)  Thus TPS’s limited, temporary, and discretionary nature makes it insufficient for climate migrants. In conclusion, the existing domestic law presently provides no status or rights for climate migrants once they are displaced from their homes.(30)

In closing, these present domestic laws are woefully inadequate to provide legal status for climate migrants who are fleeing their vanishing homes.  Thus, as a matter of practical, logistical, and ethical importance, the U.S. must develop a unique legal status for climate migrants before it is too late to mitigate the climate migrant crisis.  Moreover, actions, such as withdrawing from the Paris climate accord, only serves to exacerbate global climate change and by extension the climate migrant crisis.

Illustration: Map of Earth with 6 Meter Sea Level Rise Shown in Red.

  1.  Robert McLeman, Climate Change Migration, Refugee Protection, and Adaptive Capacity-Building, 4 McGill Int’l. J. Sust. Dev. L. & Pol’y 1, 3 (2008).
  2.  Id. (referencing Maarten. K. van Aalst, The Impact of Climate Change on the Risk of Natural Disaster 30 Disasters 5 (2006); P.J. Webster et. al., Changes in Tropical Cyclone Number, Duration, and Intensity in a Warming Environment 309 Science 1844 (2005)).
  3. Shane Smith & Vikram Gandhi, Our Rising Oceans, Vice (Jan. 11, 2016), https://video.vice.com/en_us/video/our-rising-oceans/566f4ac7172bc273142131fd.
  4. Id.
  5. Id.
  6. See, e.g., Anne C. Mulkern, As Distant Pacific Islands Flood, a Climate- Driven Exodus to the U.S. Grows, E&E Publishing (Sept. 9, 2013), http://www.eenews.net/stories/1059986860, archived at http://perma.cc/Q92H- 8ZBC; A Pacific Islands Man Says Climate Change Makes Him a Refugee From His Home, Pub. Radio Int’l (Nov. 8, 2013), http://www.pri.org/stories/2013-11-08/pacific-islands-man-says-climate-change-makes-him-refugee-his-home, archived at http://perma.cc/G5RK-SYSF [hereinafter Pacific Islands Refugee].
  7. See Ashley Murray, Climate Change Forces Mexican Farmers to Migrate, Allegheny Front (May 10, 2013), http://www.alleghenyfront.org/story/newnatural-world-climate-change-forces-mexican-farmers-migrate, archived at http://perma.cc/3CX9-CNVR; Climate Change Forces Mexican Farmers to Migrate, Allegheny Front (May 10, 2013), http://www.alleghenyfront.org/story/newnatural-world-climate-change-forces-mexican-farmers-migrate, archived at http://perma.cc/3CX9-CNVR; see also Elizabeth Deheza & Jorge Mora, Climate Change, Migration and Security: Best-Practice Policy and Operational Options For Mexico 13 (2013), available at http://www.wilsoncenter.org/sites/default/files/RUSI%2OReport%2OEnglish.pdf, archived at http://perma.cc/3DJ5-8ENL.
  8. See Ed Struzik, As Arctic Melts, Inuit Face Tensions with Outside World, Yale Env’t 360 (Oct. 1, 2012), http://e360.yale.edu~feature/asarctic_meltsinuitfacetensionswith_outside-world2577, archived at http://perma.cc/MN5H-Z7PK.
  9. Carey DeGenaro, Looking Inward: Domestic Policy for Climate Change Refugees in the United States and Beyond, 86 Colo. L. Rev. 991, 994 n. 10 (2015).
  10. See McLeman, supra note 1, at 5 (looking to Table 1: Sample estimates of human population displacements).
  11. Id. at 5-6 (citing Christian Aid, Human Tide: The Real Migration Crisis 1 (London: Christian Aid, 2007)).
  12. McLeman, supra note 1, at 5-6 (citing Norman Myers, Environmental Refugees: A Growing Phenomenon of the 21st Century, 357 Philosophical Transactions: Biological Sciences 609 (2002)).
  13. McLeman, supra note 1, at 4 (citing Christian Aid, Human Tide: The Real Migration Crisis 1 (London: Christian Aid, 2007); Myers, supra note 12; United Nations University, Institute for Environment and Human Security, Press Release, As Ranks of “Environmental Refugees” Swell Worldwide, Calls Grow for Better Definition, Recognition, Support, United Nations University (Oct. 12, 2005), http://www.ehus.unu.edu/index.php?cat=7&menu=44&page=12_October_-_UN_Disaster_Day.).
  14. This Post generally uses the term “refugee status” rather than asylum. The difference between these two forms of relief depends solely on where the applicant resides at the time she submits her application and the time in which they may file an application. See Laura Hayes, What’s the Difference Between U.S. Immigrant Refugees and Asylees?, Visa Now Global Immigr. (Oct. 22, 2013), http://www.visanow.com/refugees-and-asylees, archived at http://perma.cc/DTX9.BW7B.
  15. Immigration and Nationality Act § 101(a)(42)(A) (2016) [hereinafter INA]; 8 U.S.C. § 1101(a)(42)(A) (2016).
  16. Bonnie Docherty & Tyler Giannini, Confronting a Rising Tide: A Proposal for a Convention on Climate Change Refugees, 33 Harv. Envtl. L. Rev. 349, 357 (2009); See also Jane McAdam, Environmental Migration Governance, 31 Univ. of New S. Wales Faculty of Law Research Series, Working Paper No. 1, 4 (2009).
  17. INA § 101(a)(42)(A); 8 U.S.C § 1101(a)(42)(A).
  18. DeGenaro, supra note 9, at 1014.
  19. INA § 101(a)(42); 8 U.S.C. § 1101(a)(42).
  20. Niang v. Gonzales, 422 F.3d 1187, 1194 (10th Cir. 2005) (citing Vatulev v. Ashcroft, 354 F.3d 1207, 1209 (10th Cir. 2003)).
  21. See DeGenaro, supra note 9, at 104 n. 119 (stating that it will be challenging for a citizen of any country that signed on to the Kyoto Protocol to show that her government was unable or unwilling to combat climate change), see also Kara K. Moberg, Extending Refugee Definitions to Cover Environmentally Displaced Persons Displaces Necessary Protection, 94 Iowa L. Rev. 1107, 1119-26 (2009) (considering countries where the government has exacerbated environmental problems and the population could be considered one social group but ultimately concluding that environmentally displaced persons could not qualify as refugees).
  22. DeGenaro, supra note 9, at 1016 n. 134 (noting that the INA uses the term “Attorney General”, but now DHS has jurisdiction over immigration matters and thus the Secretary of that agency has this discretion).
  23. INA § 244(a)(1)(A); 8 U.S.C. § 1254a(a)(1)(A); see also Temporary Protected Status, U.S. Citizenship and Immigration Services (March 6, 2017) https://www.uscis.gov/humanitarian/temporary-protected-status.
  24. DeGenaro, supra note 9, at 1017 (citing Box 8 in Asian Development Bank, Addressing Climate Change and Migration in Asia and the Pacific 33-34 ¶ 59 (2012)).
  25. INA §§ 244(c)(1)(A)(i)-(ii); 8 U.S.C. §§ 1254a(c)(1)(A)(i)-(ii).
  26. DeGenaro, supra note 9, at 1016 n. 140 (noting applicants for TPS must demonstrate that they were in the United States on the date TPS is extended, not on the date of the climate event).
  27. See INA § 244(a)(1); 8 U.S.C. § 1254a(a)(1).
  28. INA § 244(b)(3)(B); 8 U.S.C. § 1254a(b)(3)(B).
  29. Temporary Protected Status, supra note 23.
  30. DeGenaro, supra note 9, at 994.
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