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Sinking Politics and Climate Migrants: Legal Opportunities for the United States (Part 2)

Wednesday, December 18, 2019
jessica oo

Jessica Oo

Research & Publications Intern

In the past, some domestic and international attempts to alleviate the burdens of migrant populations and establish legal protections for them have been implemented, but many of these protections are not specific enough and lack legally binding measures adequate to ensure that peoples displaced by weather-related disasters are protected on a global scale. International norms are important, as they can at least symbolically set a standard that national governments can follow. In the absence of such international norms, however, national governments must step in to address the rising consequences of climate migration.

The U.S. government specifically has a responsibility to strengthen protections for climate migrants because the United States is one of the top greenhouse gas emitters (one of the driving forces for rising sea levels and natural disasters) and has a vast amount of international influence. Two important changes that could be made at the federal level would be to expand the U.S. definition of refugees to include climate migrants and to give Congress the power to set a minimum threshold for climate migrants entering the United States annually.

In this country, the Refugee Act of 1980 is the only legally binding framework in existence that protects displaced people, but it lacks specificity and protections for climate migrants. The Act only qualifies a limited group of migrants for these protections and resources. Under the U.S. Refugee Act, a refugee is defined as “a person who is unable or unwilling to return to his or her home country because of a well-founded fear of persecution due to race, membership in a particular social group, political opinion, religion, or national origin.” The definition does not consider climate change-induced disasters and sea levels rising as plausible reasons for migration. Congress has a long history of changing bills, as when it amended the U.S. Constitution to allow women to vote or when it passed the Civil Rights Act to combat segregation. Congress can easily amend the Refugee Act of 1980 to include people who are forced to leave their countries due to weather-related disasters, agricultural failures, drought, etc. By presenting data and statistics on the effects of climate change, everyday citizens, lawyers, and scientists can urge their legislators to reconsider the definition of a refugee.

Congress can also address this challenge by modifying the refugee threshold to include a minimum number of refugees that must be allowed into the United States and ensuring that a certain percentage of those are climate migrants. Historically, Congress has given the president the power to determine the number of refugees allowed into the United States using the Presidential Determination Process. Each year, the president of the United States consults with Congress and federal agencies to determine the processes to be carried out under the refugee resettlement program, as well as the maximum number of refugees who will be allowed to enter. While Congress may advise the president on the number of refugees that are admitted, the president has no obligation to follow their advice. The number of refugees that can enter the United States in a given year is ultimately left up to the president.

Although the president has historically led this process, there is no reason that they should continue to have the power to do so. Indeed, it may be preferable for Congress to lead this process, given the highly politicized nature of refugee programs and increasing need to relocate climate migrants. Congress can amend the Presidential Determination Process to set a minimum threshold for the number of refugees admitted annually, so that there is a standard that is negotiated through a democratic process. The need for a minimum threshold becomes evident when we consider that the current Administration has admitted only 18,000 people for the 2020 fiscal year, which is the lowest number of refugees admitted in the modern U.S. refugee program. Such variability in legal migration levels can cause significant uncertainties for migrants and pose legal challenges in the courts. In addition, Congress is better equipped than the president to set a percentage of refugees to be allowed in specifically as climate migrants, since they have more capacity to study the current number of climate migrants globally and the U.S.’ international relations with other countries.

Officially, the U.S. has the capacity to admit at least 75,000 refugees yearly. Failing to allow more refugees in will not change the underlying drivers of migration nor stem the tide of migrants seeking to enter its borders. Instead, it will leave more people in unsafe living conditions or force them to migrate illegally and form informal settlements. These areas will only become more unstable and risk becoming a national security threat.

Other than these potential security risks, why should governments like the United States help these people? Many scientists argue that the communities who are the most impacted by climate change are often the groups that have the smallest roles in creating the climate problem as a whole. They believe that much of the responsibility should be on developed nations such as the United States and Europe, who have polluted the environment for the last 100 years. The United States should be held accountable for its actions, and consider the positive impacts that migrants can have as well. These migrants can also help contribute to a country’s economic prosperity and cultural diversity by taking up new job opportunities, becoming taxpayers, and sharing their cultural beliefs. This may seem like a situation where the United States and other international governments have to give away many of their own resources, but these climate migrants have just as much to offer. Little can be done to stop sea levels from rising, but the United States can work to provide these people with the resources they need to prosper.

Note: ELI has done a substantial amount of work on climate change and migration, which can be explored on our Migration web page, particularly surrounding legal protections. Some of our publications include a 2016 debate that appeared in the Environmental Forum, and an ELI Press book concerning Climate Justice.

[Part One of this blog, published on December 16, can be read here]

All blog posts are the opinion of its author(s) and do not necessarily reflect the views of ELI the organization or its members.