Document Type

Article

Disciplines

International Law

Abstract

Climate change, increasing population density, and unsustainable land use practices continue to contribute to the frequency and exacerbate the impact of environmental disasters. The world population continues to grow, particularly in areas in which the environment is unstable or prone to natural disasters. In 2010 and 2011, alone, earthquakes in Chile, Haiti, Japan, and Turkey led to widespread damage, thousands of casualties, and subsequent international relief efforts, many of which continue, today. For foreign nationals who have been displaced or must return to an area destabilized by environmental disasters, there remain few opportunities for protection. Unlike refugees, for whom an evolving but wellestablished framework of protection exists, those displaced by environmental disasters rely on legislation that is largely ad hoc and highly discretionary, both in the U.S. and abroad. While current protection regimes have helped to mitigate at least some of the transnational problems related to temporary displacement, they exist only as "gap-filling" measures and could be considerably more effective if integrated into a broader protection framework.

Some scholars have proposed that protection of the environmentally displaced may be available through a broad reinterpretation of existing international refugee principles, while others suggest that the only way to ensure their protection is through an entirely separate framework.' Most of the arguments for protection are grounded in humanitarian principles, while the arguments against broader or more permanent protection regimes tend to rest on political and national security interests.

Today, the most developed protection mechanisms for environmentally displaced persons exist in the form of temporary regimes, both domestic and regional. While it would be misguided to assume that temporary protection is the most suitable means of protection in the face of environmentally driven mass influx situations, temporary protection has proven an effective humanitarian tool when extended to individuals facing the return to a country only temporarily destabilized by environmental disaster. Yet temporary protection regimes often leave arbitrary gaps in the protection of vulnerable individuals, either due to the discretionary application or the lack of integration with more permanent mechanisms for protection. From a human rights perspective, "the efficacy of temporary protection models has been limited," 2 but from a practical standpoint, temporary protection currently provides the most viable mechanism for protection in the U.S.

The U.S. is one of several developed countries that have established a temporary protective status for individuals whose home countries have been rendered incapable of handling their safe return.3 In the U.S., Temporary Protected Status ("TPS") is a discretionary, short-term statutory strategy intended to prevent the forced return of foreign nationals to their countries of origin until the civil, environmental, or other specific danger has abated. It is designed only to provide protection to those who do not qualify for asylum, usually due to the temporary nature of the disaster or civil strife in their home country.4 Since Congress enacted TPS in 1990, the statute "remains largely unchanged in text" and administration. TPS applies only to foreign nationals of designated countries whose status in the U.S. is or would otherwise become illegal during their stay. The Secretary of Homeland Security6 ("Secretary") has the sole discretionary power to designate a country for TPS, based on any of several factors laid out in 8 U.S.C. 1254a, if she finds the country to be incapable of handling the safe return of its citizens from the U.S. As TPS beneficiaries, individuals receive work authorization and cannot be deported to their home countries until their status is terminated. The statute also contains several narrowing mechanisms that limit which foreign nationals may apply for and receive TPS, and the status itself must be renewed every six to eighteen months.

The following discussion focuses on TPS as a temporary, "gap-filling" status, and it will attempt to demonstrate how this method of protection could be improved to ensure more even-handed and forward-looking application in a future likely to be marked by more frequent environmental disasters due to climate change and population growth. Several scholars have addressed the issue of environmental displacement and migration on a more permanent scale,8 but the scope of this discussion will be limited to the efficacy of temporary protection measures, either exclusively or as a supplement to potentially longer-term and more integrated protection regimes.

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