Please note that views presented in blog articles are those of the author, not those of the Wisconsin Department of Justice, the section, nor the State Bar of Wisconsin.

In 2022, the direct effects of climate change are now obvious and familiar. Heightened intensity and frequency of extreme weather events, rising sea levels, and wildfires are frequent flyers in today’s news cycle.

Environmental law, in seeking to mitigate environmental degradation, is the legal medium that most directly responds to the threat of climate change. But as the effects of climate change bleed into all aspects of daily life, it becomes increasingly clear that climate change impacts all forms of law practice in one way or another – and vice versa.

Over the past few years, climate change and its secondary consequences have become increasingly salient in the practice of immigration law in particular.

Climate Change Related Displacement and Migration

As far back as 1990, the Intergovernmental Panel on Climate Change posited that the greatest impact of climate change may be on human migration.

Climate change is already influencing migration and displacement trends around the world, According to the United Nations, most of the 59.1 million people internally displaced across the globe in 2021 were displaced due to climate-related disasters.

Because of the various intersecting factors that influence climate-related migration, it’s difficult to pinpoint exactly how many people will be displaced by climate-related disasters in the future. The October 2021 White House Report on the Impact of Climate Change on Migration predicts that tens of millions of people will likely be displaced over the next few decades because of the impacts of climate change. The World Bank’s 2021 Groundswell report predicts climate change may displace over 216 million people across six different regions by 2050.

Climate-related causes of domestic and international displacement include but are not limited to:

• rapid-onset natural disasters;

• coastal flooding, erosion, and soil salinization caused by rising sea levels;

• drought and desertification;

• food insecurity; and

• secondary effects such as political instability or violent conflict.

The majority of individuals forcibly displaced because of these factors migrate within the borders of their home country, though many individuals are displaced across international borders.

U.S. Legal Definition of ‘Refugee’ Does not Encompass Climate Refugees

Individuals internationally displaced from their countries of origin are commonly referred to as “climate refugees,” although “refugee” has a specific legal definition that does not inherently protect those fleeing climate disaster.

The Immigration and Nationality Act’s (INA) definition of “refugee” is modeled after the definition established by the 1951 Refugee Convention, and reflects the human rights priorities of the mid-20th century. These humanitarian priorities were, of course, not yet concerned with climate change.

The INA extends refugee protection to individuals unable or unwilling to return to their country of origin because of persecution or a well-founded fear of persecution on the basis of race, religion, nationality, membership of a particular social group, or political opinion. It does not, however, account for climate refugees.

Other countries offer more inclusive definitions: both the OAU Convention and Cartagena Declaration, for example, extend refugee protection to individuals who are compelled to leave their country of origin because of “events seriously disturbing public order.”

Although the INA definition is more stringent, individuals fleeing climate-related crises are not automatically precluded from obtaining refugee status in the United States.

The 2021 White House report notes that global trends demonstrate that displacement resulting from violent conflict often occurs synchronously with heightened climate change impacts. Individuals fleeing violent conflict that coincides with climate change, or individuals denied aid based on a protected identity may successfully claim refugee status.

However, refugee status is not extended to individuals fleeing climate disaster alone. Refugee status as a method of humanitarian immigration relief for those fleeing climate disaster is ultimately limited, incidental, and does not prioritize climate change as the source of an urgent humanitarian crisis.

TPS Designation Offers Limited Relief

Temporary Protected Status (TPS) may be temporarily extended by the Secretary of Homeland Security to a foreign country when nationals of that country are unable to safely return home because of ongoing armed conflict, a natural disaster, or other extraordinary temporary conditions.

Although TPS, unlike refugee status, explicitly provides for relief from environmental disaster, it is highly discretionary and limited in scope.

TPS relief is only afforded to foreign nationals who are already present in the United States at the time of designation. Accordingly, the majority of foreign nationals directly impacted by environmental disaster cannot utilize TPS.

Moreover, TPS designation in cases of environmental disaster is only granted if the foreign state officially requests designation, further limiting opportunity for relief.

What’s Next?

The existing legal framework does not support the increasing numbers of climate refugees. As climate disasters increase in frequency and intensity, clarifying and expanding the legal protection for climate refugees is more imperative than ever.

In order to mitigate statelessness and other serious consequences of climate displacement, the United States must seriously consider expanding alternative forms of protection for individuals who do not qualify for refugee status, but who cannot reasonably or safely return to their country of origin because of climate change.

This article was originally published on the State Bar of Wisconsin’s Environmental Law Section Blog. Visit the State Bar sections or the Environmental Law Section webpages to learn more about the benefits of section membership.