Anthropogenic climate change is arguably the problem of our generation. Unchecked burning of fossil fuels, deforestation, unsustainable development practices, industrial agriculture, and the global transportation sector are just a few examples of the hand humanity plays in decimating the earth. The typical symptoms of climate change are rising and warming seas, droughts, wildfires, and habitat destruction. Critically, some of these effects have their own consequences. Choked farmlands cannot hope to produce enough food to sustain a nation. Concentrated animal feeding operations (CAFOs) systematically brutalize animals, which implicates both animal rights and environmental justice concerns. Because of the widespread and compounding impacts of climate change on essentially every aspect of the Anthropocene, this blog will focus on just one of those impacts: climate migration.
Climate migration is the displacement of people from their homes and homelands due to a changing climate. As Mia Prange of the Council on Foreign Relations put it, “Climate migration occurs when people leave their homes due to extreme weather events, including floods, heat waves, droughts, and wildfires, as well as slower-moving climate challenges such as rising seas and intensifying water stress.” This forced nomadism directs people to other parts of their countries or across borders. It impacts women, children, and people of color disproportionately, squarely rendering it a human rights issue.
Some view climate migration as a way humans can and will “adapt to climate change.” However, populations that are rendered vulnerable by the virtue of geography (e.g., Oceanic islanders) often push back on this migration presumption and would rather their situations be treated how “states at the metropole” treat climate migration — as an unacceptable plight to avoid, not passively allow. Others find the arguable onus on anthropogenic climate change in the human migration context to be misleading, pointing to the fact that there are at least five “drivers of migration” — economic, social, political, demographic, and environmental — that are separate and apart from climate change.
There are several reasons why everybody ought to care about climate migration. I will, however, tailor my focus largely to American readers (the reason for this will be made apparent shortly). Tribal communities in Alaska and Louisiana are blighted by the effects of climate change. In Alaska, tribes have witnessed their villages be literally washed away as the warming climate thaws and melts permafrost. Coastal tribes along the Gulf in Louisiana “lose a football field’s worth of land to the Gulf of Mexico every 90 minutes.” NRDC’s Nicole Greenfield urges that this substantial loss is a product of land subsidence and rising sea levels, both of which she attributes to the fossil fuel industry. Forced relocation of these vulnerable communities is especially troubling because tribal communities have unique relationships with the earth. Forcing tribes out of their ancestral lands removes them from the very source of their cultural, spiritual and social identity.
Folks who plan to live beyond 2050 must consider sobering realities that accompany a gradually worsening climate situation. Research suggests that as soon as thirty years from now, weather and temperature conditions in the Midwest could “make it difficult for the human body to cool itself for nearly one out of every 20 days in the year.” Moreover, in the case of extreme warming, the “niche” (i.e., the area where human beings are best able to survive) makes its way northbound to Canada, “leaving much of the lower half of the U.S. too hot or dry for the type of climate humans historically have lived in.” Globally, the World Bank projects that by 2050, roughly 216 million individuals will be forced to migrate within their own countries due to climate change.
Impoverished people of color in developing countries are likely to bear the brunt of the climate crisis and are thus more prone to becoming climate migrants and refugees. At the same time, by virtue of the very fact that they are economically disadvantaged, they will likely run into difficulties financing their migrations. The human rights impacts of climate migration alone ought to enervate change.
Current Ways Climate Migration Can be Addressed
Because of its transboundary nature and human rights implications, climate migration relief has been largely addressed on the international stage. The Universal Declaration of Human Rights sets out fundamental rights to be universally protected. Articles 9, 12, 13, 17, and 25 of the Declaration concern unjust exile, the home, the right to return to one’s country, the right to property, and the right to an adequate standard of living and housing. Each of these rights can be called upon to address climate migration concerns in one way or another within an existing, international legal framework. Additionally, COP21 specifically addresses the right to housing by discussing how extreme weather events, drought, erosion and flooding can destroy homes, displace multitudes of people, and gradually render territories uninhabitable resulting in migration. Moreover, Principle 14(h) of the Framework Principles on Human Rights and the Environment acknowledges the bane of climate migration, and paragraph 44 of the Draft General comment on Children’s rights and the environment with a special focus on climate change highlights climate migration as particularly felt by children, calling out the “importance of international cooperation and the States’ obligation to undertake all appropriate legislative, administrative and other measures.”
It goes without saying that international bodies and instruments have the tools to address climate migration, if only in the human rights context. Unfortunately, in the U.S. there is a general apathy towards addressing climate change, let alone climate migration, as an impending scourge. Indeed, there were 139 elected officials in the 117th Congress who outright denied the scientific consensus of human-caused climate change. Perhaps this lack of concern is born out of the fact that few remedies for climate harms are readily discernible in the given domestic legal framework. I would like to propose an avenue for recourse.
The Right Not to Travel
SCOTUS has recognized the right to interstate travel in Saenz v. Roe. An argument can be made that a concomitant right not to travel exists, encapsulated in this fundamental right. In fact, this argument has been made largely in state courts in a variety of legal contexts unrelated to climate change. It has even been suggested in some SCOTUS jurisprudence, again in contexts not including climate change or migration. The Idaho Supreme Court, for example, stated in Bartosz v. Jones that “[o]ur freedoms to engage in various activities also include the freedom not to do so.” The court proceeded to detail how numerous freedoms implicitly include their inverses. It did so by listing SCOTUS holdings supporting that assertion: Lee v. Weisman – the freedom to exercise religion includes the freedom not to do so; Miami Herald Publishing Co. v. Tornillo – the freedom of press includes the right not to print; Roberts v. U.S. Jaycees – the “freedom of association . . . plainly presupposes a freedom not to associate.” Recognizing a concomitant, albeit inverse, right in the discussion of fundamental rights is not a fantastical dream. Rather, such recognition is an affirmation of decisional autonomy. Moreover, SCOTUS decided in Wooley v. Maynard that the right to speak and to refrain from speaking are “complementary components” of a broader framework of fundamental freedom.
There are several contexts in which the right not to travel has already been argued before and at least considered by state and federal courts. One such context is vagrancy and loitering laws. In Tobe v. City of Santa Ana, a California state court cited various SCOTUS cases to bolster its conclusion that “[t]he right to travel includes the right to stay as well as the right to go.” The court in Tobe also cited numerous California cases to support its assertion that “the right to travel includes the ‘concomitant right not to travel.’” In the vagrancy context, the concern centers around how prohibiting homeless folks from sleeping in public parks or on public property “may constitute effective banishment, abridging the rights of the homeless to freedom of movement.” Further, SCOTUS weighed in on the constitutionality of an anti-loitering law in City of Chicago v. Morales. The challenged provision (a gang congregation ordinance) allowed police to order groups they reasonably believed were loitering to disperse. Refusal to disperse was a violation which, in some instances, was punishable by arrest. SCOTUS held this ordinance unconstitutional. Some commentaries equate the right to loiter to a right to stay put (i.e., not to travel), but the Court did not address this in its majority holding. Three Justices in the majority, however, were prepared to recognize a fundamental “freedom to loiter for innocent purposes,” although they did not give substantial weight to the premise given other concerns present in the case (vagueness, due process, and arbitrary discrimination concerns took center stage in this case).
Another context where the right not to travel has been discussed is in family law cases. In In re Marriage of Fingert, a California court decided that “Courts cannot order individuals to move to and live in a community not of their choosing.” Additionally, while the case has since been overruled, in In re Marriage of McGinnis a California appeals court decided that a father should not be forced to move in order to be in compliance with a parenting arrangement because he “has the constitutional right to travel and the concomitant right not to travel.” Even in the family courts, the argument for a right not to travel is at least being toyed with.
Other contexts where the right not to travel has come up include the following: not being forced to travel to exercise one’s fundamental right to receive an abortion; the right of sex offenders to choose where to live and not to live; and in the context of teacher residency requirements.
In loitering and vagrancy cases, individuals are forced to travel because staying put is rendered illegal by statute; in the family law cases, parents are compelled to travel by either their spouses or by courts in the interest of ensuring compliance with court-ordered parenting arrangements; and in the abortion context, individuals are forced to travel across state lines to receive healthcare because their own states refuse to recognize the fundamental nature of such healthcare. These varying contexts have all led judges to consider the right not to travel. In the climate migration context, individuals are forced to uproot their lives and travel either within or across state borders because, for example, the federal government continues to approve oil drilling or pipeline projects which serve to increase the felt impacts of anthropogenic climate change. I believe that if courts can recognize the right not to travel in comparatively ordinary situations like loitering and where teachers and sex offenders can choose to live, then they can certainly recognize this right in the emergency context of climate migration.
The takeaway? The right to not to travel has been floating around under our noses for some time. Perhaps it is time to bring it to the forefront. I believe establishing this right against government action at the federal and state level is a feasible way of addressing climate migration.
How it Might Work
As a 1L Constitutional Law refresher, there are differing levels of constitutional scrutiny that laws and government actions are tested against when challenged on due process or equal protection bases. Rational (RB) basis review is the most lenient standard, requiring only a legitimate state interest that is rationally related to the statute or action. It is commonly applied in equal protection cases where individuals have been discriminated against on the basis of age, wealth, or disability. Intermediate scrutiny (IS) review is a bit more grueling to overcome, requiring that an important state interest is substantially related to a statute or government action. Gender-based discrimination and content-neutral speech are your typical applications of IS. Finally, strict scrutiny (SS) review is the most difficult standard for governments to overcome. It is often fatal to the action or law, requiring the government action or statute to be narrowly tailored to a compelling state interest. Fundamental rights implicate strict scrutiny review: the right to control the upbringing of one’s child, to marry, to procreate, to use contraception, and to make medical decisions have been determined by the Court to be fundamental under due process concepts.
As previously mentioned, the right to travel was considered fundamental to the Court in Saenz. Indeed, the Court expressly rejected the application of RB review there. It is precisely because of (1) this rejection, (2) the Court’s understanding of the Privileges and Immunities Clause of the 14th Amendment, and (3) the fact that IS applies only in niche areas of gender discrimination, protected classes, and certain first amendment contexts that the right to travel is subject to SS review. I am simply positing that, if the concomitant right not to travel were also accepted as fundamental — as a “complementary component” — then there would be no justifiable occasion to move away from SS review of challenged violations of that right.
I further believe that under a SS review framework for the right not to travel, it would be an onerous task to convince a court that any government action is compelling enough to overcome the right, given the extensive list of reasons (mentioned above) “why everybody ought to care about climate migration.” Moreover, even assuming that there was some compelling state interest, the government action would have to be narrowly tailored to achieve that interest. In other words, the government must be able to show that it could not attain its goals through any means less restrictive on the right not to travel. A myriad of constitutional law cases dealing with other fundamental rights (e.g., Meyer v. Nebraska, Troxel v. Granville, and Loving v. Virginia), demonstrate that proving a negative is tremendously difficult.
I do not purport to have fleshed out this avenue to its fullest capacity. Nor is this blog a call for SCOTUS to recognize this right immediately. Indeed, there are several unknowns, loose ends, and unresolved questions presented by the proposed right not to travel. Simply put, I believe there is something here — a potential way to address the reality of climate migration within the U.S. constitutional law framework. If you would indulge me, reader, the logic runs as follows: if one has a recognized right to remain where they are, and the federal government, let’s say, approves of a controversial Alaskan drilling project, and we know that burning fossil fuels contributes to over 75% of global GHG emissions, and we know that GHG emissions contribute to climate change, and we know that the climate crisis causes climate migration, and we know that climate migration forces entire communities to uproot their lives and travel for survival, then that right not to travel could be used to challenge the government’s approval. A bit attenuated? Absolutely. Completely out of reach? I’m not so convinced.
 There is ongoing debate concerning the terminology referring to those displaced by climate change. “Climate refugee” is sometimes conceived of as synonymous with “climate migrant.” Facially, they seem to suggest the same idea. Speaking in terms of refugees has the benefit of an existing legal framework that is widely understood in terms of human rights. Calling displaced peoples refugees also has the benefit of expressing the urgency of the situation in a much more rhetorically exigent manner than framing individuals as migrants does. One drawback of using refugee and migrant interchangeably is that it is misleading: not all climate refugees are actually given refugee status, and not all migration situations are forced. Additionally, “migration” is often used to refer to internal movement, while refugees are often international travelers. For the sake of uniformity, and because I will largely focus on the United States, I will refer to those displaced by climate change as climate migrants.