Environmental Refugees and the Definitions of Justice

By Wade Norris, Co-Founder of PRAER

When will the time come that climate change talks will start considering human rights over business rights?

There is a growing group of people in our world who are in a legal limbo — environmental refugees. Even though there are hundreds to thousands currently being displaced by climate change, they do not have a defined status as a group, hence they are not officially "refugees."

Yet, according to current predictions by Oxfam International, by 2050 there will be 75 million people displaced due to climate change. Other models are predicting up to 250 million people.

Morally, we must look at who is responsible for the millions who will lose their homes and way of life and find solutions.

According to the definition by UN High Commissioner on Refugees (UNHCR), a refugee is someone either inside or outside their national borders fleeing persecution due to their affiliation with their social group — ethic, religious, political, etc.

But a person whose island is swallowed up by a rising sea has no rights under refugee law, in fact, they are considered "migrants," meaning they are "voluntarily" leaving their country.

A great example is the eruption of Soufriere Hills Volcano in Plymouth, Montserrat, in the 1990’s and continuing today.

The United States and the UK issued temporary humanitarian visas for people to leave the island under the legal provision of "non-refoulement." (This is also the provision that calls on governments not to return a person to a country where they may be tortured or killed.) However, as the eruptions continued, the U.S. revoked the temporary visas and issued a statement saying that because the volcano was an "ongoing situation" and "no longer temporary", that they were no longer eligible to stay in the U.S. under the temporary humanitarian visas. The United Kingdom has done the same.

In both countries, many of those displaced by the volcano are simply overstaying their visas and trying to avoid deportation. Professors Andy Pittman, Jane McAdam and Anna Samson of the University of New South Wales explain the issue in this video.

Solution 1: The United Nations

The first choice would be to get the United Nations to expand the charter of who is covered under the current definition of a refugee.

Right now, perhaps the best person to speak to the issue is President Mohamed Nasheed of the island nation of Maldives. The Maldives is home to 350,000 people, all living at 8 feet above sea level. With current models showing a 6 to 9 foot rise by 2100, Nasheed has gone on a speaking tour around the world and before the UN to argue for curbing emissions and for money for relocation.

Next week, he will be holding a government cabinet meeting underwater to emphasize the threat of sea level rise due to Climate Change.

Facing a similar global warming threat, Ursula Rakova of the Carterets has formed a non-profit called Tulele Peisa which means "Sailing the Waves on Our Own" and seeks to empower the Carteret islanders to raise money for relocation.

I have hope that there will be enough momentum to get something legal status established this year at Copenhagen.

Right now there are already staggering numbers of Refugees that need help:

10 million traditional refugees

13 million refugees displaced within their own borders

6 million refugees who were considered "stateless"

1 million "people of concern"

Add to that the costs associated with climate change: The UN Development Program estimated that industrialized nations must provide $86 billion a year by 2015 for people most vulnerable to catastrophic floods, droughts and other disasters that scientists fear will accompany warming.

As a realist, I know that the United Nations will have a hard enough task just getting the industrialized nations to agree on a global emissions plan at Copenhagen. Tackling that issue as well as addressing status of environmental refugees may be too big, but for the people involved, it is vital.

Solution 2: Government Intervention

At some point, the governments of the world are going to have to get involved.

So, what is the hold up for giving people displaced by climate change "refugee" status?

It is simple: If you establish that people displaced by climate change are refugees, then the governments of the world are compelled to aid them and/or to stop them from becoming refugees.

Right now, it is a big leap to say that a wave washing over your island is a form of persecution, but the practices of the industrialized countries through pollution, are in fact, the source of this persecution.

If this was established as international law, then governments would have to cease and desist from engaging in this persecution, namely by no longer using contributing to the problem of greenhouse gases.

This is a place where fossil fuel companies like coal and big oil do not want to go. Think of the Waxman-Markey climate legislation, which has $60 billion in coal industry subsidies.

If environmental refugees were given status, then that type of subsidy could make the U.S. a participant in state sponsored persecution. Additionally, senators taking lobbyist money from these industries could be stigmatized as caring more for profits than for human lives.

The other main issue is cost. Governments around the world are dealing with a recession, so who is willing to step up and pay for humanitarian aid such as water purification, food, and the most costly, relocation? And where will the people be relocated to? Immigration is already a touchy subject in this country as well as many other Industrialized nations.

My argument is one that is based on the Civil Rights movement. Industrialized nations are causing the problem, therefore they should pay the costs and lead the way to reform.

But that is just one idea.

Solution 3: Traditional Litigation

There is a pending case centered on environmental refugees on Kivalina, on the Alaska coast. The legal argument is much like in the case against tobacco companies that conspired to hide documents proving they knew smoking was bad for health. This case says the fossil fuel industries and energy companies conspired to deny climate change, falsely sowing doubt, even though they had evidence otherwise.

Sowing public doubt is exactly what industry shills have been doing. During the Bush administration, scientific evidence proving climate change was redacted to leave room for doubt about whether or not climate change was real.

Another the roadblock in the handful of climate change related lawsuits has been the defense citing the Political Question Doctrine — which is summed up in this case as well.

(Environmental) Lawsuits in California, Mississippi, and New York have been dismissed by judges who say a ruling would require them to balance the perils of greenhouse gases against the benefits of fossil fuels — something best handled by legislatures.

In other words, industry defendants have argued and, so far, judges have agreed that the political process and legislatures should handle this issue, not the courts.

In September, I had the opportunity to be part of a panel on Environmental Refugees at an Environmental Justice conference at the University of Oregon Law School.

While I was there, I had the privilege of meeting Brent Newell of the Center on Race, Poverty, and the Environment, who is a legal counsel for the Kivalina people.

At that time, he was watching a court of appeals decision which could strengthen the Kivalina case.

On September 22, the Second Circuit made an important decision on a case known as
Connecticut vs. American Electric Power. It ruled that climate change was part of the political realm, not the courts.

However, the appellate court overturned this decision on the grounds that the energy companies were causing a public nuisance, and nuisance cases have been heard by courts for decades.

“Nowhere in their complaints do plaintiffs ask the court to fashion a comprehensive and far-reaching solution to global climate change, a task that arguably falls within the purview of the political branches. Instead, they seek to limit emissions from six domestic coal-fired electricity plants on the ground that such emissions constitute a public nuisance that they allege has caused, is causing and will continue to cause them injury.”

This is a huge decision, one that will help strengthen the case on behalf of the Kivalina people and could keep the judge from dismissing the case as has happened in other states. If the Kivalina Islanders win their case, then a precedent will be set, opening polluting companies up to liability for public nuisance.

So good news, right?

Unfortunately, this case also demonstrates the problem with our legal system — the wheels of Justice turn very slow.

Connecticut vs. American Electric Power started in 2006 and surely will be appealed to the Supreme Court. The 1989 Exxon Valdez oil spill case was still in the courts last year, when the Supreme Court ruled to reduce damages from $2.5 billion to $500 million. Now you might be ticked that a company that raked in $40 billion that same year gets a reduction in the amount of punitive damages, but the key here is not the money, it is the time. 19 years. 19 years for Justice.

Our neighbors living on low-lying islands, people who are living the closest to a sustainable lifestyle and who have contributed the least to carbon emissions, do not have 19 years to wait for justice. Some islands will be submerged or uninhabitable before 2020.

In addition to meeting the legal counsel for the Kivalina, I also got to meet Professor Maxine Burkett of the University of Hawaii Law School. Her view on a remedy for the environmental refugees was to address this issue based on the model of reparations.

This model has 3 basic requirements.

1) An apology from the offending party for the action or harm.

2) Monetary compensation for losses caused by the action or harm.

3) A guarantee that this action or harm will not happen again.

This last requirement is the essential point.

If, for instance, you were to win lawsuits against polluters, then you would probably only get monetary compensation, but the pollution would probably still continue in other parts of the world.

With the reparations model, the pollution, which is the harmful action, would need to cease. And since pollution is worldwide, this would be the end of the fossil fuel industry as we know it.

These are just some of the scenarios for getting justice for environmental refugees.
Internationally, this is a situation where definitions matter. Definitions like refugee, in environmental refugee, or genocide, as in environmental genocide.

By keeping people displaced by climate change in a category of "migrant", governments are let off the hook to do anything about the cause.

There are millions of people who can’t wait for the right political will to exist for them to have legal status.

What Can You Do?

* Get involved with the Islanders directly, such as the Carteret islander’s Facebook support page

* Stop by AVAAZ’s climate page and get involved.

* Stop by our web site to learn more or become a member of our Facebook page.

* Talk to your elected representatives about the need for President Obama to
issue an executive order recognizing the rights of environmental refugees.

* Divest from any stock or mutual fund portfolios that include fossil fuel companies, and invest in green companies or environmentally and socially responsible funds. If divesting could change South Africa, perhaps it can change the world.

* There are also many lifestyle actions, such as converting your
car from gas to electric.

And there are ways to adapt to overcome this problem. I think this one is particularly promising.
But we can’t simply plan to adapt without first stopping the cause — business as usual won’t work.

I would appreciate your suggestions here in this venue, so that it can be added to the efforts. Perhaps if these avenues are pursued, the definition of "environmental refugee" will no longer be in limbo, and will be equated with justice.

See also:

Alaska’s Soon-To-Be Climate Refugees Sue Energy Companies for Relocation

Melting Ice Could Lead to Massive Waves of Climate Refugees

Ocean Refugee Alert: The Torres Strait Islands are Drowning

World’s First Climate Refugees to Leave Island Home

(Photos: Kiribati, Greenpeace; Kivalina, U.S. Army Corp of Engineers)