According to the United Nations High Commissioner for Refugees (UNHCR), the UN’s refugee agency, more than 90 percent of the world’s refugees come from countries that are the most vulnerable to climate change. The UNHCR predicts that by 2050, more than 200 million people will be forcibly displaced by extreme weather and environmental disasters, including droughts, floods, storms, earthquakes, wildfires, rising sea levels, and extreme temperatures. The UNHCR estimates that an annual average of 21.5 million people have been forcibly displaced since 2008 by weather-related events. While some of those displaced by climate-exacerbated disasters can eventually return to their homes, many are permanently displaced.
The United States currently has no legal protection mechanisms to offer permanent safe haven to those displaced by climate change. The closest form of protection is temporary protected status, where the Department of Homeland Security provides temporary protection to migrants experiencing environmental disasters. Likewise, no current comprehensive international legal framework exists to address the increasing displacement of migrants caused by climate change.
Most refugee experts believe that a separate form of relief should be created for climate migration that does not involve changing the definition of a refugee. The current definition of a refugee in the Immigration and Nationality Act § 101(a)(42)(A) extends only to people who have a well-founded fear of being persecuted because of their race, religion, nationality, membership of a particular social group, or political opinion and are unable or unwilling to seek protection from their home countries. Notably, missing is refugee status for individuals displaced by climate devastation, disasters, or related harms.
It is also important to note that the majority of climate migrants are internally displaced persons (IDPs) within their countries. The UNHCR estimates that there are 68.3 million internally displaced people who account for the majority of the world’s forcibly displaced population. The most notable example of internal displacement in the United States is African Americans in lower-income areas of New Orleans, Louisiana, and Tribal communities on Isle de Jean Charles, displaced by hurricanes in Louisiana. In recognition of national issues surrounding internal forced migration for Tribal communities, the Biden administration provided $120 million in new funding to help Tribal communities prepare for the most severe climate-related environmental threats to their homelands. Internationally, forced displacement is a continuum where, according to UNHCR, “an IDP may cross an international border to seek safety once they are able to do so, or if the situation further deteriorates, at which point they may become a refugee.”
Nevertheless, many nations, international bodies, and non-governmental organizations (NGOs) are concerned for these displaced individuals. However, according to climate migration advocates, the national and international response to displacement has been limited, and protection for climate-displaced migrants remains inadequate.
Neither the United States nor international law currently provides a universally accepted definition of climate migrants. The genesis of the contested legal terminology comes, in part, from the late 1980s when the United Nations Environment Programme referred to people who are forced to leave their community of origin because the land can no longer support them as environmental refugees. In fact, many commentators disagree with the use of the term “refugee,” preferring climate-displaced persons or climate migrants. However, the term “migrant” is problematic because it implies choice where there is none. The terminology is contested, where existing definitions carry both legal and historical meaning. Displacement resulting from climate change can be defined as an individual or group of people compelled to leave their habitual place of residence or unable to return due to the adverse effects of climate change, environmental degradation, or natural disasters.
It is important to note that the concept of forced climate migration implies a causal link between climate change and displacement. Nevertheless, forced climate migration solely through legal or international frameworks is complex. Many scholars and advocates argue for the creation of a separate legal status outside the refugee definition. Any creation of a definition will require international cooperation and engagement to establish a comprehensive framework to address the unique challenges faced by climate-induced migrants.
The United States offers several protective mechanisms to address the humanitarian needs of individuals in danger or forcibly displaced from their home countries or countries where they habitually reside if they are stateless. For individuals inside the United States who cannot return to their countries because of climate displacement, TPS is the closest option available. TPS is a temporary immigration status provided to nationals of specifically designated countries that are confronting an ongoing armed conflict, environmental disaster, or extraordinary and temporary conditions. In the absence of protection, U.S. asylum lawyers have begun to present arguments that asylum seekers are a particular social group under the Refugee Act. Notably, for the first time on July 1, 2024, the U.S. Court of Appeals for the First Circuit denied a climate change-focused asylum claim in Cruz Galicia v. Garland, No. 23-1910 (1st Cir. July 1, 2024), holding that “climate refugees” did not constitute a particular social group for lack of social distinction.
Nearly every country with an individualized asylum system has a complementary protection regime as part of its adjudication process. Countries that have systems in place for processing asylum claims also often have in place a complementary protection regime for those who do not qualify for asylum under traditional criteria but still need protection from harm. This safety net is in place for those not meeting specific criteria for asylum but who are unable to return to their home due to some unlisted significant threat and need protection.
In 2021, the Biden administration recognized the inevitability and scale of expected climate-induced migration, the need for a protection framework to address it, and the importance of U.S. leadership efforts to mitigate climate impacts in the Report on Impact of Climate Change on Migration. The report was significant because it was the first time the U.S. government formally recognized climate migration as a humanitarian concern warranting international collaboration to address the growing issue. The report, however, did not contain many specific recommendations.
In 2022, Senator Patrick Leahy (D-VT) and Representative Zoe Lofgren (D-CA18) introduced the seventh version of the Refugee Protection Act, which updated U.S. practices toward asylum seekers and refugees, including protections for climate-displaced individuals. In other words, it offered an affirmative and comprehensive framework for addressing forced climate-related displacement.
While there is currently no formal protection in the United States available for individuals who have fled their countries due to forced climate displacement, attorneys who represent these individuals who have been displaced should be trained on best practices so they can better advocate for their clients within the existing immigration framework. The American Bar Association Commission on Immigration’s mission is to direct the association’s efforts “to ensure fair treatment and full due process rights for immigrants, asylum-seekers, and refugees within the United States.” The Commission’s draft resolution on climate migration, which it plants to submit for consideration by the ABA House of Delegates at the 2025 Midyear Meeting, recommends the U.S. government take the following actions:
Consistent with the Biden administration’s 2021 climate migration report, the United States should serve as a leader among nations, international bodies, NGOs, and others across the globe to define, anticipate, plan, and provide a framework to protect climate refugees as part of our ongoing international climate justice cooperation and engagement. Together with legal and other humanitarian experts across the globe, the world must establish a comprehensive framework to address the unique challenges faced by climate-induced migrants.
