Climate change in the early 21st century is causing acute and chronic environmental displacement within and across borders.[1] Within the United States, from Puerto Rico to Louisiana to the southern Atlantic Coast to Paradise, California, to the indigenous coastal communities of Alaska, Americans are seeking both solutions and means to resettle as their home environs are destroyed by climate change.[2] Globally, entire nations face existential crises, from the acute desertification of the Sahel in West Africa to the steady submergence of Pacific Island Nations like Kirabati and Vanuatu.
Policymakers and theorists typically look at strategies for mitigating and adapting to climate change. Migration can be part of the latter: an adaptive response to the loss of lands, communities, and livelihoods. Adaptive migrations often happen within a nation’s borders, and are complex enough even without the stresses of crossing an international border. For example, which community members have the economic means to move, or the connections and capacities to thrive in a new location? What happens to the rich cultures and histories of communities as they disappear (through loss of land or through out-migration)? If migrants favor certain destinations, how will their arrival affect the receiving communities? What laws can ease or stress their situations as they arrive?
Clearly, international borders add even more difficulty to these questions, and we lack a migration regime that addresses climate migration. Before turning to the international dimension, however, it is worth dwelling momentarily on an example from United States history that resulted in a legal framework crucial to our current moment. The Dust Bowl migrants of the 1930s were themselves climate migrants; farming on historic grasslands of the Southern Plains turned catastrophic when cyclical drought years hit. As the land literally blew into the air, the Dust Bowl destroyed livelihoods, choked animals, and created massive human suffering. Famously, many of the migrants moved west to California, where some faced further suffering in the agricultural industry of the San Joaquin valley, made famous by writer John Steinbeck and photographer Dorothea Lange.
But let’s complicate the story somewhat. First, not all the migrants were similarly situated. Tenant farmers experienced the worst initial hardships and received the least government assistance, which increased the necessity of migration as an adaptation strategy—and made it likely that they would take those farming skills and end up in agriculture in California. City-dwellers from the Dust Bowl states had much better protection, and their skill-sets allowed many of them to find work in cities in California, where they blended in to local populations and recovered their incomes far faster than their fellow-migrants who ended up in the San Joaquin Valley’s farms.
Second, where California had recruited migrants in the 1920s, including from the Dust Bowl states (creating the pathway that migrants followed in the 1930s), now the state and sub-localities made strong efforts to deter or block the migrants. The Los Angeles police set up “bum blockages” to physically stop people from crossing into California. The state cut off public benefits to people who had not lived in California for at least a year. And in 1933 the California legislature criminalized any “person, firm, or corporation” who “[brought] or assist[ed] in bringing into the State any indigent person who is not a resident of the State, knowing him to be an indigent person.”[3]
The Supreme Court took up this law in Edwards v. California in 1937. The Court acknowledged California’s interest in preventing the hardships of receiving migrants: “The grave and perplexing social and economic dislocation which this statute reflects is a matter of common knowledge and concern. We are not unmindful of it.” But the Court resoundingly forbade California from trying to isolate itself from the hardships endured in other states:
[No limitation on the police powers] is more certain than the prohibition against 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.[4]
Essentially, the Edwards Court stated an understanding that as Americans we are all bound in shared struggles.
This legal acknowledgment of common, shared burdens is critical to thinking about climate migration as an adaptive strategy within the United States—and more can be done to ease the paths for those who do need to leave their homes, as the questions at the beginning of this essay demonstrate. Even more useful, though, is the applicability of this Edwards view beyond our borders. Let me state the obvious point that international borders exist, and the Supreme Court’s 1937 decision does not legally extend to anything but migration within the United States. Nonetheless, the Court had a choice to allow states to protect their own borders, and rejected it in a spirit of solidarity. The current realities of the world urge us to think creatively about what solidarity looks like in the face of climate change.
Two points are inarguable. First: climate migration is inevitable and, indeed, has already begun. Second: there is no existing legal framework for climate migration, and what limited frameworks exist are under severe restrictionist pressure. As I have written elsewhere, while people sometimes use the phrase “climate refugees” to describe ongoing movement of people from inarable or disappearing land, the Refugee Convention—already under enormous strain—is not designed for the facts underlying that movement—and will likely only help a very small number of migrants in extremely limited circumstances.
Professor Jaya Ramji-Nogales of Temple University has done much to illuminate the failure of the international legal system to develop international migration law, and in the absence of that, she writes, “migration becomes a game with the deck stacked in favor of the hardiest, savviest, and luckiest migrants, or simply those so desperate that they are willing to put their lives and often the lives of their families at risk.”[5] This description could have been written of the Dust Bowl migrants in the 1930s, and the Edwards court provided the necessary legal regime.
As the international community moves the work of the Paris Accord forward, lawyers and policymakers must create instruments that forthrightly create a legal regime for migrations already under way. Migration should not be an adaptation strategy only for those with the most resources, or for those most willing to suffer privations in their destinations.
And as politically unreachable as this may be, if the “inevitability” argument does not sway policymakers, perhaps the postscript to the Dust Bowl story will: Within a decade of the Dust Bowl migration to California, the state had recovered fiscally, the urban migrants had recovered economically, and the San Joaquin Valley migrants were on their way to recovery—while becoming politically important and culturally vibrant. The fiscal costs to California in the 1930s were real—but did not endure. The stigma of migration, too, faded over time, as the children of the migrants made their mark (especially when Johnny Cash and Merle Haggard’s music took over the airwaves).
Like the Dust Bowl migrants to California, each wave of migration to the United States has met with doomsday prophesying of poverty, illness, criminality, and terror—and yet within a generation or two, most Americans look back to those earlier migrations with pride and gratitude for the contributions the migrants and their descendants made. My hope is that we build a legal regime that permits dignified migration for those who must leave their homes, that acknowledges the real costs experienced in receiving communities, and that centers on the conditions for thriving required by migrants and receiving communities alike.
Elizabeth Keyes is Associate Professor of Law and directs the Immigrant Rights Clinic at the University of Baltimore.
Listen to an episode of The Kroc Cast podcast featuring the authors from this issue of Peace Policy:
[1] World Meteorological Organization, July Matched, and Maybe Broke, the Record for the Hottest Month Since analysis Began, WMO Blog (Aug. 1, 2019), https://public.wmo.int/en/media/news/new-heatwave-hits-europe.
[2] Stephanie Sy & Richard Coolidge, As Water Levels Rise, this Alaska Town is Fleeing to Higher Ground, PBS, Nov. 27, 2019, https://www.pbs.org/newshour/show/as-water-levels-rise-this-alaska-town-is-fleeing-to-higher-ground.
[3] Id., at Sec. 12.
[4] Edwards v. California, 314 US 160, 173 (1941).
[5] Jaya Ramji-Nogales, Moving Beyond the Refugee Law Paradigm, 111 AJIL Unbound 8, 10 (2017)
