the Definition of Justice…

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 of people currently being displaced by Climate Change, they do not have a defined status as a group, hence they are not really ‘refugees.’
And according to current predictions by Oxfam International, by 2050 there will be 75 million Environmental Refugees displaced due to Climate Change. Other models are predicting up to 250 million people.
This wide disparity in ranges is because we still don’t know how wrong our Climate Change models will turn out to be, as evidenced by the updated 2009 IPCC report (Intergovernment Panel on Climate Change) which is drastically worse than scientific estimates by the IPCC in 2007.
Morally, we must look at who is responsible for the millions of people who will lose their homes and way of life and look to solutions as well.
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 – for instance ethic, religious, political etc.
But a person whose island is swallowed up by rising sea level has no rights under Refugee law, in fact, they are considered ‘Migrants’ meaning they are ‘voluntarily’ leaving their country.
A great example of this in current Governmental policy is with the eruption of Soufriere Hills Volcano in Plymouth, Montserrat in the 1990’s and continuing through today.
In that situation, the US and UK issued temporary humanitarian visas for people to leave that 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, after the eruptions kept continuing, 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 US under the temporary humanitarian visas. The United Kingdom has done the same for the people from Montserrat in their country. In both countries, many of the Montserrat people displaced by the Volcano are simply overstaying their visas and trying to avoid deportation.
Professors Andy Pittman, Pr. Jane McAdam and Anna Samson of the University of New South Wales explain this issue in this video. (an hour video)
As I have written before, displacement due to volcanoes or earthquakes is likely to get worse due to the rising number of Ice Quakes in Greenland.
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 this 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, President Nasheed has decided not to wait for the Governments of the world to act, but has gone on a speaking tour around the world and before the UN to make arguments for curbing emissions and for money for relocation. He has even gone so far as to have his cabinet get SCUBA training in order to have a full government cabinet meeting underwater to emphasize the threat of sea level rise due to Climate Change.

The same is true of Ursula Rakova of the Carterets who has formed a non-profit called Tulele Peisa which means “Sailing the Waves on Our Own” and seeks to empower the Carteret people to raise money for relocation, and has been advocating on her people’s behalf.
I have hope that there will be enough momentum to get something legal status established this year at Copenhagen.
Roadblocks at the UN
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 U.N. 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 in 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 we can hope.
Government Intervention
At some point, the Governments of the world are going to have to get involved.
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 dollars in Coal industry tax subsidies.
If Environmental Refugees were given status, then that type of tax subsidy could make the US 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.
Traditional Litigation
There is a pending case centered on Environmental Refugees off of the coast of Alaska. This is the Kivalina Islanders lawsuit – which was reported in this article in the Atlantic.
This legal argument in this case on behalf of the U.S. Citizens living on Kivalina, is that much like the Tobacco companies conspired to hide documents proving they knew Tobacco was bad for a person’s health, the Fossil Fuel industries and energy companies also have conspired to deny climate change even though the have evidence otherwise.

In February, Berman and Susman–along with two attorneys who have previously worked on behalf of the village, and Matt Pawa, an environmental lawyer specializing in global warming–filed suit in federal court against 24 oil, coal, and electric companies, claiming that their emissions are partially responsible for the coastal destruction in Kivalina. More important, the suit also accuses eight of the firms (American Electric Power, BP America, Chevron, ConocoPhillips, Duke Energy, ExxonMobil, Peabody Energy, and Southern Company) of conspiring to cover up the threat of man-made climate change, in much the same way the tobacco industry tried to conceal the risks of smoking–by using a series of think tanks and other organizations to falsely sow public doubt in an emerging scientific consensus.

Sowing public doubt is exactly what Industry shills have been doing, and throughout the Bush administration, scientific evidence proving Climate Change was redacted to leave room for doubt about whether or not Climate Change was real.
Another one of the roadblocks 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’s case.
I am glad to announce that as of September 21, 2009,
the Second Circuit made an important decision on a case known as
Connecticut vs American Electric Power.
Without going into too much detail, this was a case several groups like the Audubon society were trying to stop coal plant emissions because it was harming the value of their land trusts. The lower court ruled as other courts have, 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 company 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. The Connecticut vs American Electric Power was started in 2006 and surely will be appealed to the Supreme court.
Or take for instance the Exxon Valdez. That accident which happened in 1989, and in which everyone could see was clearly Exxon’s fault, was just decided 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.
I would say that she and I had the most similar view on this issue.
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, as 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.
sea level rise
What you can 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 website 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 funds like Calvert Investments.
If Divesting could change South Africa, perhaps it can change the world.
There are many solutions, such as converting your
car from gas to electric.
There are also 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.
Also 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.