BEYOND EMISSIONS: MIGRATION, PRISONS, AND THE GREEN NEW DEAL.

• Author: Sassman, Wyatt G.

1. Introduction 163 II. The Green New Deal 170 A. Structure 171 1. Congressional Findings 171 2. Green New Deal Goals 172 3. Green New Deal Mobilization. 173 4. Green New Deal "Principles". 174 5. Immigration and the Green New Deal. 176 B. Foundations 177 C. Innovations 180 III. Climate Migration. 182 A. Climate Change and Movement of People 182 B. Climate Migration and U.S. Immigration Law. 184 1. Amending the Definition of "Refugee". 184 2. Utilizing Temporary Protected Status 187 3. Creating an Environmental Visa Program 188 C. Climate Policy Beyond Borders 189 1. Acknowledging Migrant Communities Outside the U.S. 189 2. Integrating Migration into U.S. Climate Leadership 190 3. Confronting the U.S. Military's Role 192 IV. Detention-Driven Immigration Enforcement 192 A. Immigration Detention and the Harms of Confinement 193 B. The "Greening" of Prisons. 199 C. Climate Policy Beyond Prisons. 200 1. Alternatives to Detention. 200 2. Abolishing Detention. 202 V. Conclusion: Climate Policy Beyond Emissions 203 The enormous breadth, scope, and threat of global climate change blurs the lines between environmental law--traditionally associated with pollution control and carbon emissions reductions--and other legal fields. A collective realization that environmental law impacts many areas of law and policy--and vice versa--is emerging. The Green New Deal reflects this reality by seeking to align environmental and climate policy with a wide range of progressive social policy goals, such as labor protections, racial justice, and greater wealth equality. (1) Yet most commentary around climate policy and the Green New Deal is only beginning to grapple with the breadth of this task. (2) Early work has focused on the technocratic details of climate policy, such as how to achieve the dramatic carbon emission reductions suggested by the proposal. Substantially less attention has been devoted to fleshing out the difficult and more pressing questions about how to design environmental and climate policy that achieves the social justice goals set out in the Green New Deal. This Article aims to shine a light on this necessary work and move forward the conversation about what environmental and climate policy beyond emissions reductions and pollution controls looks like. To do so, we link two ongoing debates in immigration law with the commitments and goals of the Green New Deal to migrant communities: the lack of legal protections for people displaced by climate change and the harms of detention-driven immigration enforcement. (3) Through this discussion, we start the process of envisioning climate policy "beyond emissions" to one that also moves "beyond borders" and "beyond prisons."

   To better understand the growing overlap between environmental law and immigration law, consider the story of Mr. Ioane Teitiota. On September 23, 2015, the government of New Zealand, where Mr. Teitiota had lived with his family since 2007, deported him to the island nation where he was born. (4) Ioane was born "on an islet situated north of Tarawa, a journey of several days away by boat," in the island Republic of Kiribati, roughly 3,000 miles across the Pacific Ocean from New Zealand. (5) He completed secondary school and worked at a trading company until the company closed in the 1990s. (6) He then moved to the larger island of Tarawa, the capital of Kiribati and married his wife, who had also been born on a smaller island in the south of Kiribati. (7) Together, they lived in a traditional village as farmers and fishers. (8)

   Life was difficult for the Teitiotas. In the late 1990s and early 2000s, the population of Tarawa swelled as people moved in from the smaller surrounding islands. (9) Tarawa provided some of the few government and medical services in the region, which quickly overcrowded. (10) Regular flooding on Tarawa disrupted transportation and made crops difficult to grow. (11) Scarcity and crowding turned living on Tarawa from difficult to dangerous as people fought over property and resources. (12) The Teitiotas wanted to have children. (13) They wanted a better future and a safe home. They left Kiribati for New Zealand in 2007. (14) They had three children there, and when their residence permits expired in 2010, they stayed. (15)

   In 2012, Mr. Teitiota sought legal help to remain lawfully in New Zealand. (16) He filed a petition for asylum, claiming that it would be dangerous for him and his family to return to Tarawa in light of the risks that moving would pose to him and his family. (17) Mr. Teitiota's claim was rejected at each stage of New Zealand's judicial system. (18) The government concluded that the violence and disruption caused by flooding and overcrowding on Tarawa were insufficient to demonstrate that Mr. Teitiota was a "refugee" entitled to asylum under relevant international law. (19) Mr. Teitiota, for example, could not prove that he was subjected to threats of violence as a member of a particular social group or because of an innate identity characteristic. (20) Rather, the risks of life on Tarawa were among the many instabilities for which international law provided no refuge. (21) Mr. Teitiota lost his final appeal in 2015, and the New Zealand government deported him to Kiribati. (22) His family followed him. (23)

   In 2007--the same year the Teitiotas immigrated to New Zealand--the Republic of Kiribati acknowledged in an action plan prepared pursuant to the United Nations Convention on Climate Change that the sea was swallowing the nation. (24) Year by year, sea level rise pushed inhabitants of the smaller islands to the larger islands like Tarawa, overcrowding the nation's lands and straining its resources. (25) More frequent floods salted Tarawa's fields and stripped parts of the island of all vegetation. (26) Saltwater spoiled wells on which Tarawa's inhabitants relied. (27) Residents built seawalls that demanded constant repair to stave off the rising waves. (28) There was nowhere else to go. The people of Kiribati became vocal advocates, raising awarenss of the impacts of climate change on small and developing nations and demanding action. (29) As the sea claimed their nation and global carbon emissions continued to rise, they asked the international community: Where will our people go? (30)

   When New Zealand sent the Teitiotas back to Tawara in 2015, seawater washed over the island to knee-deep levels whenever floods aligned with high tide. (31) The Teitiotas could not grow food in these conditions. (32) Children on the island were dying from drinking the well water. (33) One of the Teitiotas' children suffered from blood poisoning, causing boils to erupt across the child's body. (34) These were the dangers that Mr. Teitiota feared for his family when he requested asylum in New Zealand. (35) And these are the dangers that New Zealand maintained are not within the ambit of its obligation to people migrating from other countries, as dictated by international law. (36)

   Mr. Teitiota then took his claim to the United Nations Human Rights Committee, an expert body dedicated to resolving disputes regarding the implementation of international human rights treaties. (37) Despite accepting Mr. Teitiota's "claim that sea level rise is likely to render the Republic of Kiribati uninhabitable," the Committee confirmed that New Zealand had no obligation under international law to grant Mr. Teitiota and his family the protection of asylum. (38) The Committee recognized the key gap between climate change and refugee law: "For climate change refugees, the risk of serious harm arises from environmental factors indirectly caused by humans, rather than from violent acts." (39) Because the convention requires this threat of violent harm, generally the convention offers no help to people displaced by climate change like Mr. Teitiota. (40)

   The Committee signaled that, "without robust national and international efforts, the effects of climate change in receiving states may," nevertheless, "expose individuals to a violation of their rights under articles 6 or 7 of the [International] Covenant [on Civil and Political Rights], thereby triggering" obligations under international law to not deport people back to their country of origin. (41) But in Mr. Teitiota's case, the timeframe of Kiribati's descent into the sea--ten to fifteen years--"could allow for intervening acts by the Republic of Kiribati, with the assistance of the international community, to take affirmative measures to protect and, where necessary, relocate its population." (42) Thus, to the extent any obligation under international law could exist, it did not exist under Mr. Teitiota's circumstances.

   This story helps demonstrate the chasm between the realities of climate change and the law of the many nations, including the United States, whose immigration law tracks the contours of international law. (43) In the coming decades, climate change will displace staggering numbers of people both internally and internationally--estimates reach into the hundreds of millions--under less direct and less dramatic circumstances than those of Mr. Teitiota and his family. (44) Both subtle changes in climate and environmental degradation, as well as increased instances of catastrophes and dangerous events such as hurricanes and floods, will displace people for a wide range of reasons, from the failure of a season's harvest, to inhabitable living conditions, to full-scale conflict. (45) And the risk of displacement, both internally and across borders, has been, and continues to be, particularly great for nations in the global south and communities of color across the world, making the issue also one of racial justice. (46)

   Mr. Teitiota's story also illustrates how neither immigration law nor environmental law alone can bridge this chasm. The Earth's climate is already changing, and even immediate and dramatic reductions of global carbon emissions will not stop changes that...