Climate migration, as it’s known, brings with it a range of legal implications. From immigration law to environmental law, from public policy to economic development: Attorneys across the board will have a role to play in shaping the way society responds to this crisis in the making.
Nienke Grossman
Understanding climate migration
It’s widely understood that rising temperatures, worsening weather events, lack of water and loss of arable land — all effects of climate change — will drive future migration patterns.
“Migration and mobility are adaptation strategies in all regions of the world that experience climate variability,” according to the Intergovernmental Panel on Climate Change. “Moving from one place to another is a fundamental way humans respond to challenging conditions.”
As director for public policy at the Lutheran Immigration Refugee Service, Jill Bussey, J.D. ’03, is already seeing this firsthand. “Climate change is really no longer this threat looming in the distance. It is a destructive force, just as destructive as war, violence and persecution, and it is happening right now,” she says. “We are seeing the effect of climate change throughout the people that we serve, through our refugee resettlement program and through our family and child services programs.”
The New York Times points to Guatemala as a likely example of what the future holds. Declining rainfalls will eventually reduce crop yields by one-third, driving people off the land there. Now multiply this on a global scale: “By 2070, the kind of extremely hot zones, like in the Sahara, that now cover less than 1 percent of the earth’s land surface could cover nearly a fifth of the land,” the newspaper reports.
The result will be massive shifts in population — as many as 143 million people on the move in Latin America, East Africa and South Asia alone, according to the Migration Policy Institute.
“The people who are most vulnerable to climate change will be the ones who are the least likely to have options available to them,” she says. “They’re not going to be professional people or highly skilled people. It’s going to impact poor, uneducated people, the economically vulnerable. And those are exactly the people that nobody wants.”
Under present law, there’s no such thing as a “climate refugee.” Asylum seekers can claim their status if they’re persecuted for their religious beliefs, or if their political activities put them in jeopardy. “But individuals who leave their home communities due to climate change fall within a gap in international law,” Grossman says.
A lack of solid research hinders efforts to close that gap, says Prof. Sonya Ziaja, who teaches environmental law. While the world has known for decades about the likelihood of climate migration, “there has not been a lot of good data around this. There hasn’t been a lot of good research on it,” she says. “As a result, there are a lot of unknowns about where people are likely to go, under what circumstances.”
We can add to this a general reluctance to tinker with asylum statutes. “Anything that tries to expand the asylum law system is going to potentially weaken it out of existence,” Keyes says. “It is totally under-resourced, it’s a broken part of a broken system, and in general it’s just really unpopular.”
Despite the hurdles, experts say, there is much the legal community can do to lay the groundwork for a coming wave of climate migration.
Looking to precedent
Lawyers love precedent, and there are a number of key examples from the past that help to describe possible legal approaches to climate migration.
Grossman points to a case in which a Pacific Islander sued New Zealand for deporting him to his home state, which at the time was threatened by rising seas. He lost the case for technical reasons, “but the court did say that it may be unlawful for governments to send people back to countries where the effects of climate change may expose them to risks which threaten their lives,” Grossman says.
Keyes likewise points to efforts by the United States to make migration available to people from the Marshall Islands in Micronesia, after American nuclear testing contaminated those islands.
Examples like these could help establish legal precedent for action on climate migration. Basic tort law also may provide an avenue.
“The idea of torts is that when you have done damage to somebody else, you should compensate them. You should make them whole,” says Keyes. “When we look at the places where people have to leave because of climate, these are not the neighborhoods and communities and countries that are responsible for climate change.”
Developed nations are heating the globe, making developing places unlivable. By basic tort law, Keyes suggests, the industrial countries have an obligation to address the damage they’ve caused.
Driving policy
Brianna Thomas
Third-year student Brianna Thomas has researched climate impacts in the course of her legal studies. She sees much room for improvement in the current system.
“We need to create protections for people who are fleeing these things. We’re not going to prevent the climate from changing right now, so we’re going to have to move toward adaptation and helping people navigate the life effects that are going to impact them,” says Thomas, who in August completed a prestigious internship with the National Resources Defense Council.
“Being an attorney means being an advocate. It’s about helping people navigate through the most uncertain and most troubling and traumatic things they’ve ever had to go through. In that respect, the legal community can be trying to make these things clearer. We can be talking about climate migration before it becomes a catastrophe or a disaster, rather than dealing with it retroactively.”
Despite the uncertainties — who will move? where? when? — we know enough to start crafting policy today.
“We can assume that most people will go to climates that are better,” says Ziaja. Coastal people will move inland as waters rise; people in hotter climates will move to more temperate zones. “When climate causes politically unstable environments, or a lack of security, or when people’s homes simply become uninhabitable or no longer exist, people are going to move, and we desperately need a framework to address that at multiple levels of government,” she says.
That means there will be legal work to do in the realm of immigration law at the national and international levels. Someone will need to advocate for new classes of visas, for example. Environmental lawyers may also play a role in helping to craft the new rules of the road. “There has to be a policy change, and lawyers can help to drive that,” Ziaja says.
Along those lines, she notes, no single nation need shoulder the burden. Lawyers could help to craft international alliances, where masses of refugees could be dispersed among multiple hosts, much as the European Union has done with Syrian refugees. “There’s no reason one country has to be the answer to this,” she says.
A human right
Lawyers also could help to formulate the guiding principles of climate migration, by framing this as a human rights issue first and foremost.
“Under international human rights law, people have the right to life,” Grossman says. The mechanisms of life — adequate food, housing, clean water, sanitation — all are imperiled by climate change. That makes climate migration a human rights issue.
“Lawyers can continue to work on broader issues about guaranteeing human rights to all migrants,” she says. “That doesn’t mean we have to let in everyone, but it does mean that when people are here, we have an obligation under international human rights law to treat them in certain ways.”
She pointed to the Biden administration’s recent executive order on climate migration as a good starting point. It called for a report on the implications of climate migration, which Grossman describes as an important first step in driving policy changes.
“It will be interesting to see how the definition of ‘refugee’ evolves and whether attorneys continue to develop their arguments about who should be included within it,” Grossman says.
Bussey says she has high hopes for that report, which was due to be completed in August 2021.
“We’re hoping the report from this administration will provide more context for our analysis into the current legal climate, the current policy framework,” she says. “What’s already clear is that there are visible gaps in our current legal system. There is a dire need to reform our system and to broaden the grounds for protection.”
Elizabeth Keyes
Start local
Climate migration is to some extent an international issue.
“There are all sorts of mechanisms that talk about a right to leave a country, but there’s no companion right to enter another country,” Keyes says.
“And yet, when people cannot survive on the land, then they are going to have to go someplace else.”
At the same time, there are ways in which the legal community on the national level, and even the local level, can help to address the situation. And while it’s likely that immigration attorneys and environmental lawyers will be on the front lines of that effort, there’s a role for others as well — especially lawyers who may be engaged in activities related to local economic development, housing, and other issues touching civic policy.
Ziaja lays it out as follows. Climate refugees will have to go somewhere, and it’s likely they will head toward already established communities in places less impacted by drought, severe weather, rising seas, and so on. The catch: People already live in those places.
We’ll therefore need thoughtful public policy to accommodate the newcomers.
“If you are involved in land-use issues, in any kind of city planning, you have a major role to play,” she says. Those who work on housing issues, who litigate against unfair evictions or advocate in favor of policies that make affordable housing more readily available, “all of them can be watching this as a major area of concern,” she says.
In this regard, the entire legal apparatus may at some point touch upon issues related to climate migration. “Professors and judges and legislators all can be talking about this issue, raising awareness even just at the local and regional level,” Ziaja says. “All of that makes a difference.”
Of course, we could just do nothing and wait for the floodgates to open. But that may not be the smartest course of action.
“So here’s the really bad news,” Ziaja says. “For many of us in the United States, within the next century, our families are likely to be climate migrants themselves.”
Climate change won’t just impact less developed nations. America’s coastal cities and southern states will get hit, too, and that will have an immediate local impact.
“Canada is likely looking down on us and thinking: How are we going to handle a bunch of people from Arizona moving up here? As far-fetched as that might seem today, it’s something that the Canadian government is certainly concerned about,” Ziaja says. “And it applies equally to this region, to Baltimore. We’re going to need to be ready to handle an influx.”
Lawyers also can help to move the needle by asserting the basic rights of would-be climate migrants.
“The asylum system is overdue for reform, the process itself is broken. In particular, attorneys can advocate for the independence of our judiciary and for due process in immigration hearings,” Bussey says. “Even if they don’t know all of the intricacies of asylum law, lawyers who understand the basic concept of due process can fight for that basic constitutional principle.”
Sonya Ziaja
Domestic Impacts of Climate Change
Lisa BlitsteinLaw student Lisa Blitstein has been researching the impact of domestic climate migration — Americans moving inland to escape coastal flooding, as well as those displaced by wildfires and other extreme-weather impacts of climate change. Cities like Buffalo, NY and parts of Michigan are already looking at ways to court these future migrants to bolster their local workforces. Blitstein, due to earn her degree in 2022, says lawyers will have a key role to play as climate change intensifies and such migrations become more common. “Climate impacts already are visibly producing migrants,” she says. “You can see coastal flooding. You can see people displaced by wildfires in California. You can see unprecedented snowfall just this past winter in Texas. That is a consequence of temperature fluctuations coming out of climate change, and it disproportionately impacts people in poverty, people in low-income communities.” That’s where the lawyers come in. “The lawyer as advocate in this situation can help to redirect conversations so that decisions, rather than being made on behalf of people, are really being made by the people,” she says. “It’s a ‘participatory governance’ model, in the realm of public policy, where the lawyers are helping impacted communities to understand political processes so that they can be active actors in the process.” She points to the Baltimore-Washington area, which likely will receive climate migrants in the coming years. “There are already people who live here, obviously. How do we create ample resources for cohabitation? How do we navigate the social impacts that this will produce?” Blitstein says. “Lawyers have a role in helping to create those balances, helping to navigate those conversations.” The legal community is naturally poised to fill that role of trusted advocate. “Something that people may forget is that lawyers are storytellers,” she says. “In this situation, that is essential. Someone needs to make clear in the minds of people what it looks like to be a climate migrant, what it looks like to have to leave your home, leave everything behind. A lawyer has the essential skill of communication that will be needed to make these conversations real and meaningful.”
Take a Closer Look
Join us Tuesday, October 26 at 5 p.m. for a UB Law in Focus webinar on this topic, featuring the three professors quoted in this piece. Register for the event.
