Modernize the legal definition of refugee
The connection between human-caused climate destruction and human tragedy is only accepted when the connection is direct and unambiguous. For example, despite consensus in scientific circles, it is still not widely acknowledged that elevated atmospheric carbon contributes to overpowered cyclone events like Sandy in 2012 and Harvey in 2017. Government agencies demand a clear and recognizable human-created villain and a clear and recognizable human victim if they are to recognize culpability: it took the Cuyahoga River literally catching on fire — for the thirteenth time — before activists could get the government to start taking water pollution seriously. Even slightly more diffuse events, like the torrent of earthquakes occurring in highly fracked regions of the country, are treated by government agencies as interesting at best and unrelated at worst. The need to catch a singular culprit red-handed is one of the many institutional pitfalls we face as the climate crisis bears down on us.
A particularly dangerous area of short-sightedness is in our current definition of a refugee. Presently, U.S. law states that a refugee is someone who cannot stay in or return to their home country due to persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion,” with no allowance for climate-forced hardships. This language mirrors the UN’s definition, which also does not identify long-term ecological disaster as a basis for refugee status. Although the climate crisis has the potential to impact billions of people across the globe, international law is going nowhere fast: according to Erol Yaybuke, development expert at the Center for Strategic and International studies, “[w]e’re not going to get any kind of binding convention on displaced people due to climate change”.
The gaping hole in the definition of refugee was demonstrated in 2014 by New Zealand’s immigration court, which ruled against a Tuvaluan family who sought refugee status on climate change grounds. The husband had lost access to his ancestral land as well as his father’s former home, and had dealt first-hand with water shortages, coastal erosion, and saltwater-flooded crops. His wife had also lost access to her ancestral home, and had suffered life-long medical complications due to the poor food and water available to her family. The couple had lost two children before birth, and worried that their two living children would suffer even more than they had if they were forced to return to Tuvalu. The court did not find in their favor: “[w]hatever harm they faced in Tuvalu due to the anticipated adverse effects of climate change, it did not arise by reason of their race, religion, nationality, membership of any particular social group or political opinion. Their refugee claims were abandoned.”
The decision referenced a previous case, AF (Kiribati) [2013], where a Kiribati man fleeing the effects of the climate crisis was found ineligible for refugee status. The court’s opinion that “a ‘sociological’ refugee or person seeking to better his or her life by escaping the perceived results of climate change is not a person to whom [refugee status] applies” is dangerously outdated as we enter a period of rapidly changing climate conditions. In the face of rising seas, many Western countries like the United States have the luxury of retreating to higher elevations. For people living in coastal or island countries like Tuvalu and Kiribati, some day within the next century there will be — quite literally — no more ground left. Bangladesh, both low-lying and incredibly populous, could have as many as 1 million internal migrants due to climate crisis-exacerbated flooding this year, outside of the continuing Rohingya refugee crisis, and may lose 20% of its landmass to sea level rise by 2100. Flooding of this scale would create 30 million climate migrants in Bangladesh alone, 10 million more than all those displaced in the entirety of Europe during and after World War II.
Migrations of this magnitude are certain to produce the human horrors which would qualify a person for refugee status under its current definition. However, if the U.S. waits until folks who have lost their homes to sea level rise are subjected to more quotidian terror before we allow them in, we will have committed an injustice whose moral turpitude cannot yet be fully plumbed. Further, if we wait to modernize our legal definition until there are tens of millions of climate migrants in immediate need of resettlement, we will have completely lost control over an already precarious and accelerating international situation. With a potential 1.4 billion climate refugees, the United States must act now to begin alleviating the climate crisis that its own actions and consumption helped create.
In order to be satisfactory, our approach must be reasonably attainable within the next five years, as well as relatively permanent. Two avenues exist, one being more immediately attainable, the other being more permanent. The first is to act on the ‘special circumstances’ clause of the legal definition of refugee, whereby certain groups can be designated as refugees “in such special circumstances as the President after appropriate consultation…may specify”. In these cases, the President may allow an additional number of refugees from a certain country entry into the United States over the normal limit. The criteria for such circumstances are strict: for instance, the emergency situation lasts for no more than a year, and the President must methodically address economic and foreign policy concerns in front of members of the House and Senate Judiciary Committees. This approach was taken during the Iraq War Refugee Crisis in 2007, and allocated 17,000 additional slots to Iraqi refugees. While President Trump is unlikely to sign such an act, were the next president sympathetic to this idea, they could start this process immediately after their inauguration.
Still, this approach is the less preferable of the two options because of its impermanence and questionable legality. Obviously, the need to re-issue the special circumstance makes it vulnerable to both inaction and perennial political machinations. A president might campaign on a xenophobic platform, the implementation of which could very suddenly pull the rug out from underneath people seeking asylum in the United States; or a particularly partisan Congress might draw out their oversight proceedings so that the order expires. Even more pressingly, while the President could allocate a certain number of additional refugee slots for countries experiencing climate-forced migration, that action would not change the legal definition of refugee. This means that many of the extra available slots might go unfilled because folks didn’t fit the current criteria. Worse still, if the order is challenged in court, the climate refugees who were allowed into the United State could be “refouled,” forcing them back into their previous country. For these reasons, the ‘special circumstances’ avenue is not the preferable pick.
The other option is perhaps more difficult to achieve but significantly more durable. Congress can pass a bill amending the definition of refugee to include specific language designating those displaced by or significantly threatened by the climate crisis. This would require a majority vote in the House as well as a filibuster-proof majority in the Senate, a condition which is unlikely without significant Democratic gains in the 2020 election. However, amending the Code would provide a much higher bar for repeal than an act of the executive, which would protect climate refugees from mercurial changes in public opinion and insulate them in the pre-existing refugee infrastructure. Further, it would give millions of people around the globe legitimate claim to asylum in the United States before they are subjected to the worst effects of climate-forced social breakdown.
The current political divisions on both the climate crisis and refugees and asylum seekers are certain to make the issue of climate migrants a particularly contentious issue. Most potential climate migrants are poor, non-white, non-European, and non-Christian, which virtually guarantees venomous Republican opposition to modernizing the legal definition of refugee. It is likely that some incumbent Democrats would also oppose such a measure in order to appeal to their more conservative base. Despite the certainty of a brutal fight, it is imperative that changemakers realize the vital importance of addressing the climate crisis not just in energy production, transportation, and food production, but also in its social and political impacts. Young people like those in the Sunrise Movement are emphatic: addressing the climate crisis is not a job for our children, but a job for us. Taking bold action is a job for today.