We Broke It, We Own It: How To Meet The Climate Migration Future
By Elizabeth Keyes (she/her) • November 1, 2021 • Vol. 01 No. 08
Illustration by Berett Wilber (she/her)
Editor’s Note: In 2020, more than 55 million people were forced to migrate within their own country due to extreme weather events, including nearly 2 million in the U.S. Climate change migration, within and across borders, will only increase over the coming decades. In this essay, immigration lawyer and scholar Elizabeth Keyes explains how the United States’ own history with internal climate movement can offer ideas and inspiration for the future.
Drought and floods. The slow rise of the ocean gradually submerging island nations, and the rapid destruction wrought by fire and hurricanes. From the United States to Bangladesh, from El Salvador to Kiribati, climate change is already forcing people to seek new places to live. The World Bank recently estimated that, because of climate change, as many as 143 million people might be displaced within their countries’ borders in the Global South in coming decades. The International Organization on Migration estimates that climate change accounts for five times as many displacements as civil war and violence. Such displacement has vast ramifications for the economies and governance structures of the affected countries, which are predominantly poorer than the countries whose emissions are fueling—pun fully intended—climate change.
Climate migration will be of a scale where governments have no choice but to act.
If history is a guide, we can estimate that additional millions will cross an international border to find refuge in the next decades. As of 2020, there was one person displaced internationally for every two people displaced internally. Assuming this ratio continues to hold, then the World Bank’s estimate of 143 million internally displaced people would lead to approximately 70 million people displaced internationally by 2050. Data is extremely difficult to gather for climate migration, and this estimate is a crude one, but at even a fraction of this estimate, climate migration will be of a scale where governments have no choice but to act. First, though, we need to realize this problem of climate migration is our shared challenge to face. One example from U.S. history shows a possible way.
Some Hope from History
The years of drought made the land uninhabitable. The wealthiest in the region used their connections and qualifications to find jobs and housing in their destination, but the poorest fled with only what possessions they could carry, and were met by police at the border, trying to turn them around. These poorest migrants ended up doing farm labor in almost intolerable conditions. Residents called them dirty and uneducated, and deemed them criminals who would take advantage of generous welfare benefits and who would take jobs away from the poorest citizens.
Familiar? Maybe not for reasons you’d expect. The short vignette above describes a moment in 1931, along the California state border. The migrants were the Dust Bowl “refugees” whose journeys later became part of American lore. They were the original U.S. climate migrants, who both fled and faced extraordinary hardships, but within a generation, became part of the fabric of the communities where they sought a new beginning.
History, with help from the photos of Dorothea Lange and John Steinbeck’s Grapes of Wrath, has burnished the travails of the Dust Bowl migrants as noble hardships bravely suffered. But the (ultimately) successful integration of the migrants into California’s society and economy was far from inevitable, as California’s vigorous efforts against the “Okies” showed. The Los Angeles police sent officers to the state border to block entry to migrants; state legislators passed laws denying benefits to newcomers and criminalizing those who would help indigent migrants come to California. The anti-immigrant rhetoric and politics mimicked the state’s treatment of Chinese migrants 50 years prior, but this time were directed toward fellow Americans.
The first time that the Supreme Court held that states could not pass laws to deter migrants from other states was in 1941, in Edwards v. California. The Court acknowledged that “the huge influx of migrants into California in recent years has resulted in problems of health, morals, and especially finance, the proportions of which are staggering.” But the Court resoundingly prohibited “attempts on the part of any single State to isolate itself from difficulties common to all of them by restraining the transportation of persons and property across its borders.” And subsequent history showed that after some initial turbulence (mostly confined to the poorer, rural migrants to California’s farming valleys), the state absorbed the migrants, culturally (Merle Haggard was not an Okie from Muskogee, but from Oildale, California) and politically (conservative Orange County became more so thanks to the Dust Bowl arrivals).
What would the world look like if the Supreme Court permitted California’s border restrictions? In such a world, Louisiana’s Katrina migrants would not have fled to Houston, California’s fire victims would not have found new refuge in neighboring states, and the scenes of devastation from Hurricane Maria, awful as they were, would have been even worse had Puerto Ricans not been able to travel freely to Florida and New York.
What would the world look like if, instead, the Supreme Court permitted California’s border restrictions and encouraged other states to follow suit? In such a world, Louisiana’s Katrina migrants would not have fled to Houston, California’s fire victims would not have found new refuge in neighboring states, and the scenes of devastation from Hurricane Maria, awful as they were, would have been even worse had Puerto Ricans not been able to travel freely to Florida and New York. New Orleans residents in Ida’s path could not have sheltered in Alabama and other states while awaiting safe return to their beloved city. Available migration choices, enabled by the Edwards decision, stopped each of these terrible events from becoming even worse. And hard as those migrations were for the migrants themselves, those out-migrations had relatively little impact on the receiving communities. Houston, Florida, New York, and the states that fire victims have moved to have all remained the same—each was able to absorb the influx easily.
Turning the Gaze Beyond Our Borders
The Supreme Court did not know how the Dust Bowl experience would play out in California. From that position, its two-part analysis is even more powerful. First, the Court acknowledged real, “staggering” costs to migration: both fiscal costs and social costs, all occurring in the shadow of the Great Depression. But second, the Court said those costs and fears could not justify states trying to avoid their responsibilities.
As we turn our gaze from state to national borders, we should remember the reasoning behind that landmark case. Migration can be disruptive, especially at first. But there are important arguments for why Americans need to share in common hardships.
The first critical step is understanding the hardships as shared, despite the separation created by international borders. The pull of Michael Walzer’s conception of the morality of borders, which holds that our primary duties are owed to fellow citizens, is a strong one—and clearly has political power and manipulability, as seen in the “America First” politics of the former President Donald Trump. But the political theorist Joseph Carens, building on the work of John Rawls, provides an equally powerful counterpoint. Carens asks whether, if we didn’t know where we would be born, would we choose a world order that trapped us in places of poverty and danger, or would we hope to live in a world that permitted migration? Carens argues for the latter.
First, as a major contributor to climate change, the United States has a duty to remedy what problems climate change has caused. Second, the United States, having previously successfully navigated climate migration crises, is extremely capable of meeting this challenge.
But we need not appeal to political philosophy to explain why the United States must assist those displaced by climate change. We need only consider two principles of fairness. First, as a major contributor to climate change, the United States has a duty to remedy what problems climate change has caused. Second, the United States, having previously successfully navigated climate migration crises, is extremely capable of meeting this great challenge.
The (Im)Migration Answers
Despite the United States’ responsibility and capabilities, current U.S. legal frameworks fail to address climate migration and ignore the historical examples of what concerted action can do. While media and policymakers sometimes discuss climate migration as an issue of environmental “refugees,” the Refugee Convention is not a satisfactory answer. The Convention provides legal status on an individualized basis to people fleeing persecution in their home countries (typically not economic devastation or loss of land). For an individual to qualify, the persecution has to be on account of one of only five protected characteristics (race, religion, nationality, political opinion, or membership in a particular social group); and the persecution has to be done by the refugee’s government, or private actors the government cannot control. A Russian political dissident fleeing murder would qualify. A Central American farmer fleeing arid land and increasingly vicious hurricane seasons would not.
We could, perhaps, amend the definition of a refugee in U.S. law to include climate migrants, as many Latin American countries did in the 1984 Cartagena Declaration. Adding new categories to an under-resourced, politically unpopular system, however, seems more likely to strike the final blow to U.S. asylum law than to offer an answer to climate migration.
Where might we find answers? One tiny program offers a principle akin to the ancient precepts of tort law, which requires damages to be paid when a person or entity has breached a duty and caused harm. In recognition of its special responsibility for the environmental destruction from nuclear testing in the Marshall Islands and the Federated States of Micronesia, the United States permits the residents of these islands entry to the United States as “nonimmigrants” (the term of art that encompasses everyone from tourists to students to diplomats to managers of multinational corporations). Once here, these migrants can work legally, and they can “adjust” their status to lawful permanent residence if they have opportunities through work or through family.
The program echoes the principles of tort law, trying to provide a remedy to historical damages. While imperfect, other programs over time have linked migration to specific historic conditions as well: after abandoning its Hmong allies in Laos, the United States eventually resettled large numbers of Hmong refugees. There are specific immigration provisions for children born of U.S. soldiers in the Vietnam war. And today, we see the effort to bring allies closely connected to the military’s work in Afghanistan.
The scale of each of these programs is relatively small, and perhaps unsatisfying for meeting the challenge of climate migration. However, the U.S. experience with three other programs shows that broader scale, targeted approaches can work. The Cuban Adjustment Act of 1966 offered a quick path for approximately 500,000 Cubans since 1981 to gain status in the United States. They needed to prove Cuban nationality and be clear of the criminal and other bars to admissibility, and one year after arrival, they could apply for lawful permanent residence.
Another program—the diversity visa—brings up to 55,000 people annually from historically under-represented countries where there is otherwise no real pipeline to legal immigration. The applicants, like the Cubans, need to be admissible, but otherwise they simply have to hold a secondary school diploma, and win one of the visas in an annual lottery. At 30 years old, this program has brought somewhere in the neighborhood of 1.5 million people to the United States as lawful permanent residents since its inception.
Third, some 400,000 people have benefited from Temporary Protected Status (TPS), which is a designation the U.S. government can bestow on citizens of a designated country who are located in the United States and have some significant environmental or political catastrophe that would make it infeasible to return home. Unlike the Cuban Adjustment and Diversity Visa programs, TPS only delivers a work permit and a temporary reprieve from deportation. Some countries, however, like Sudan and El Salvador, have had TPS for two decades at this point, and Liberians—who had a similar kind of protection—finally transitioned to lawful permanent residence eligibility in 2019.
We thus have multiple examples of reasonably large-scale immigration programs upon which we can build. And we have multiple historic and ongoing immigration programs showing that, once in a while, we acknowledge our global debts.
Other Debts, Other Answers
In tort law, damages accrue to the person responsible for the harm. Assigning responsibility for climate change is notoriously complicated, but it is quite clear that the corporations and countries most responsible for our present situation are not the ones bearing responsibility. Residents of Pacific Island countries subsist on fishing, not industry, but they must move as the sea submerges their homelands. And even within industrialized countries, the people most vulnerable to floods and fires tend to live in the poorest communities, from Black Americans in New Orleans Ninth Ward to the Native communities along Alaska’s coast. When we ask those communities to pay the price for damage done by others, we are violating one of the oldest legal principles in humanity.
Law professor Maxine Burkett, of University of Hawaii, has called for climate reparations in recognition of these harms. Resettlement should also be part of any such reparations made. As shown in the programs above, we have precedent for that. And the tort framework helps us strategically focus on a more limited number of climate-affected countries: those where we have had the most direct responsibilities for their climate vulnerability.
In particular, U.S. interference in Central America comprises a set of historic wrongs that could be mitigated through a more generous migration policy. In the Cold War, the United States backed and provided weapons and military training to the oligarchic governments ruling the very countries from which most Central American migrants are fleeing in 2021: El Salvador, Honduras, and Guatemala. From the assassination of Saint Oscar Romero in 1980 to the slaying of internationally-renowned environmental and indigenous rights leader Berta Caceres in Honduras in 2016, and many more environmental activists, those who try to improve the very conditions that migrants flee face exceptional danger. That danger has roots in U.S. political and military policy in the region, where Cold War fears led the United States to develop deep military ties with regimes infamous for human rights abuses, and where arms flowed—and continue to flow—freely. Some of todays’ leaders are almost indistinguishable from international drug trafficking cartels and violent criminal enterprises. They are incapable of providing basic safety, let alone the governance measures that would abate their poorest citizens’ vulnerability to intensified hurricane seasons and drought.
There are other specific, historic claims that could be made, like former U.S. colonies. From Guam to the Philippines to tiny islands dotting the planet, the United States has explicitly controlled land throughout the world, often to the detriment of its residents. The U.S. military is keenly aware of climate change’s impact on military installations throughout these islands, but the tort framework suggests that our obligations go beyond that self-interest.
These particular examples call for the most urgent measures, while awaiting the slow, steady work of building new international agreements and compacts. This is not a subject that the United States will be addressing alone, and other countries may find their own countries of specific historic responsibilities. Nonetheless, there are reasonable and creative measures the United States can implement without waiting for these international compacts, which inch along slowly and are not binding. Like Angela Merkel’s bold and remarkably successful welcome of a million Syrian refugees in 2015, the United States can be bold as well.
The Possible Dream
All of this is politically difficult, and well beyond the bounds of what seems possible in a country where even the DREAMers’ claims to membership have been rebuffed annually since 2000. But this new migratory framework may be more possible than it seems.
First, with the census showing an ever-declining birthrate in the United States, the country is not looking as “full” as Trump declared it to be. Right wing media may enjoy its overtly-racist “replacement theory” demagoguery, but the Republican party has benefited greatly from the large Cuban program described above—indeed, just as California Republicans eventually did from the Dust Bowl migration. Likewise, in the 2020 elections, both major parties learned that immigration in general from Latin America is far more politically complex than previously understood. Migration has political upsides for both parties.
A wealthy homeowner in Charleston may seem a world away from a rice farmer in the Philippines, but they both experience the flooding that makes their communities precarious places to live.
Second, building empathy may be possible due to the similarity between climate migrants outside U.S. borders, and climate migrations already underway within those borders. Empathy, sorely needed in our politics generally, may feel even more impossible than immigration reform. But the challenges are literally shared, even though adaptive capacity diverges massively. A wealthy homeowner in Charleston may seem a world away from a rice farmer in the Philippines, but they both experience the flooding that makes their communities precarious places to live.
Third, there is more and more indication that the United States itself will not emerge as a geographic winner in climate change. If we were to need to migrate ourselves, would we not want to create robust norms about handling climate migration? Twenty years ago, the notion of destabilized Atlantic currents, which could lead the Northern portion of the United States to become extremely cold, if not unlivable, was the stuff of Hollywood disaster movies. The 2004 film The Day After Tomorrow imagines Americans fleeing to Mexico, only to find locked fences. Now, scientists have evidence that those currents are already destabilizing. We are hopefully many decades or more from any apocalyptic fallout from these shifts, but that mere possibility should have us asking: what kind of expectations do we want to set for migration, when we may need it ourselves?
What kind of expectations do we want to set for migration, when we may need it ourselves?
Ultimately, whether we want more migrants or not, we already know that climate migration is part of our future. From past migrations within our borders, we also already know that we have a tremendous capacity for adaptation and resilience. We know that when we can summon the political will, we are also capable of welcoming large numbers of migrants from abroad. Let us stop being afraid of the future and start working to meet it.
Elizabeth Keyes (she/her) is Associate Professor of Law at the University of Baltimore, where she has directed the School of Law’s immigration clinic since 2012. She received her Master’s in Public Administration from Princeton University and her J.D. from Georgetown University Law Center.
Edited by Caroline Lester (she/her)
