Background

On his first day in office, President Joe Biden signed seventeen executive orders (EOs), memorandums, and proclamations,[1] halting signature Trump Administration efforts and signaling a new direction in several key areas. As his platform had foreshadowed,[2] one long-overdue priority will be the national response to climate change: just months after the United States formally withdrew from the Paris Agreement,[3] Biden committed to rejoining.[4] A notable swath of the EOs from the President’s first-day in office concerned immigration policy: Biden ended the so-called “Muslim ban”;[5] ceased construction on the U.S.-Mexico border wall,[6] one of the most potent symbols of the Trump Administration; directed the Census to once again count every person residing in the country, including noncitizens;[7]and fortified the Deferred Action for Childhood Arrivals (DACA) program.[8]

Many of these EOs simply reversed unilateral actions taken by Trump. Significant as they are, these EOs are therefore vulnerable to similar reversal under a future presidential administration. A more stable solution requires legislative action. As Congress begins to consider these new priorities, it will be crucial to address climate change and immigration as overlapping, non-discrete issues.

The Climate Migration Issue

The strictly environmental effects of climate change—flooding, extreme heat, frequent and severe storms, among others—will create humanitarian crises all on their own.[9] The same phenomena are also expected to exacerbate other complex social and political problems, further driving migration[10]—a situation the United States is ill-prepared to handle.

Former Secretary of State John Kerry, now the first U.S. Special Presidential Envoy for Climate, spoke recently about the connection between climate change and human migration, acknowledging that in the wake of record heat waves in the United States and abroad, “the linkage could not be more clear. . . . [P]laces are going to become unlivable and people will migrate, period.”[11]

Despite forecasting that climate-driven migration may reach into the tens of millions,[12] Kerry has not publicly suggested what concrete actions the Biden Administration might take to prepare for the logistical challenge that would arise if even a small percentage of that population seeks to relocate to the United States. Likewise, to the extent that Biden’s platform discussed climate-driven migration, it focused on national security implications[13] rather than discussing the humanitarian impacts.

Inadequacy of the Current Framework

It is unclear where people fleeing the impacts of climate change fall within the United States’ immigration system. Under the current regime, individuals may apply for temporary protected status (TPS) if they are fleeing environmental disaster.[14] However, some have argued that TPS is inadequate in the face of climate change impacts precisely because it is temporary.[15] Although the Secretary of the Department of Homeland Security may extend TPS for as long as the dangerous environmental conditions persist, the designation is revocable and does not provide for a path to legal residency.[16] This is a poor fit for the potentially permanent impacts of climate change on habitability.[17]

Some have advocated expanding the definition of “refugee” from the Immigration and Nationality Act (INA) to include climate-displaced individuals.[18] Currently, asylum seekers must make a credible showing that they face or fear persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.”[19]This does not clearly cover those fleeing the effects of climate change, yet such individuals may be equally unable to safely remain in their country of origin.

In 2019, Senator Edward Markey introduced a bill proposing that the United States establish a Global Climate Change Resiliency Strategy, including amending the INA to include a legal definition for “climate-displaced person,” and to admit at least 50,000 such individuals each year.[20]

Regardless of whether Markey’s bill gains more traction with the new Democratic majority in Congress, such a change would inevitably raise line-drawing issues. Even if climate impacts were accepted as a basis for asylum eligibility, it could prove difficult to determine when those impacts were a main or driving factor in individuals’ need to relocate. Events in other countries have also shown that predicating asylum status on “actual or imminent” harm may mean turning away people when the impacts of climate change, though utterly predictable, have not fully manifested.[21] These questions will not become any easier to resolve, however—and, with a federal administration that once again recognizes the reality of climate change, the time to begin addressing them is now.

––––

[1] See Aishvarya Kavi, Biden’s 17 Executive Orders and Other Directives in Detail, N.Y. Times (Jan. 20, 2021), https://perma.cc/BN27-FR46.

[2] See The Biden Plan for a Clean Energy Revolution and Environmental Justice, JoeBiden.com, https://perma.cc/J5HQ-S52W (last accessed Jan. 22, 2021) (“Biden Climate Plan”).

[3] See Matt McGrath, Climate Change: U.S. Formally Withdraws from Paris Agreement, British Broadcasting Corp. (Nov. 4, 2020), https://perma.cc/WA4N-DKXT.

[4] See Press Release, The White House, Paris Climate Agreement (Jan. 20, 2021), https://perma.cc/C27P-8YYC.

[5] See Press Release, The White House, Proclamation on Ending Discriminatory Bans on Entry to the United States (Jan. 20, 2021), https://perma.cc/Z4XV-AG3D.

[6] See Press Release, The White House, Proclamation on the Termination of Emergency With Respect to the Southern Border of the United States and Redirection of Funds Diverted to Border Wall Construction (Jan. 20, 2021), https://perma.cc/QR6F-EE8A.

[7] See Press Release, The White House, Executive Order on Ensuring a Lawful and Accurate Enumeration and Apportionment Pursuant to the Decennial Census (Jan. 20, 2021), https://perma.cc/ZDY9-EPMD.

[8] See Press Release, The White House, Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA) (Jan. 20, 2021), https://perma.cc/P6SA-CD5B.

[9] Erol Yayboke, Janina Staguhn, Trevor Houser, & Tani Salma, A New Framework for U.S. Leadership on Climate Migration, Center for Strategic & International Studies (Oct. 23, 2020), https://perma.cc/5744-2WQ6.

[10] See Abrahm Lustgarten, The Great Climate Migration, N.Y. Times (July 23, 2020) (Magazine), https://perma.cc/DG6W-YLR2 (“Drought helped push many Syrians into cities before the war, worsening tensions and leading to rising discontent; crop losses led to unemployment that stoked Arab Spring uprisings in Egypt and Libya; Brexit, even, was arguably a ripple effect of the influx of migrants brought to Europe by the wars that followed . . . . As the mechanisms of climate migration have come into sharper focus — food scarcity, water scarcity and heat — the latent potential for large-scale movement comes to seem astronomically larger.”) (internal citations omitted).

[11] Abrahm Lustgarten, John Kerry, Biden’s Climate Czar, Talks About Saving the Planet, ProPublica (Dec. 18, 2020), https://perma.cc/T669-EZP6.

[12] See also World Bank Group, Groundswell: Preparing for Internal Climate Migration (2018) (predicting that over 140 million people within sub-Saharan Africa, Latin America, and South Asia could be displaced by 2050).

[13] See Biden Climate Plan, supra note 2 (“[Biden will: c]ommission a National Intelligence Estimate on national and economic security impacts from climate change, including water scarcity, increased risks of conflict, impacts on state fragility, and the security implications of resulting large-scale migrations.”).

[14] INA § 244(b); 8 U.S.C. § 1254a(b).

[15] See Shea Flanagan, “Give Me Your Tired, Your Poor, Your Huddled Masses”: The Case to Reform U.S. Asylum Law to Protect Climate Change Refugees, 13 DePaul J. for Soc. Just. (2020), available at https://via.library.depaul.edu/jsj/vol13/iss1/5.

[16] See id.

[17] A stark illustration is island nations, like Tuvalu, that are at risk of becoming fully submerged. See Justin Worland, The Leaders of These Sinking Countries are Fighting to Stop Climate Change. Here’s What the Rest of the World Can Learn, Time.com (June 13, 2019), https://perma.cc/NKA5-BNYQ.

[18] See generally, e.g., Barbara McIsaac, Domestic Evolution: Amending the United States Refugee Definition of

the INA to Include Environmentally Displaced Refugees, 9 U. Miami Race & Soc. Just. L. Rev. 45 (2019). There is the additional moral responsibility argument: that, as the U.S. is responsible for the lion’s share of historical greenhouse gas (GHG) emissions and has indisputably benefited from the industrialization that drove those emissions, it owes refuge to those now fleeing GHG effects—individuals disproportionately from under-resourced and underrepresented communities.

[19] INA § 101(a)(42)(A); 8 U.S.C. § 1101(a)(42). Other restrictions also apply to those individuals who can establish such persecution.

[20] See S. 2565, 116th Cong. §§ 3, 8 (2019).

[21] See Evan Kielar, A Framework for the Future of Climate Refugees, 34 Geo. Immigr. L. J. 819, 821–22 (2020) (discussing a petition for asylum in New Zealand, from a national of the Republic of Kiribati, which was denied because the island would not become uninhabitable for another 10–15 years).