10/23/2020 - White Paper

U.S. Disaster Displacement in the Era of Climate Change: Discrimination & Consultation Under the Stafford Act

by Hannah Perls

Read Hannah’s note published in the Harvard Environmental Law Review here: U.S. Disaster Displacement in the Era of Climate Change: Discrimination & Consultation Under the Stafford Act

Environmental disasters displace over one million people in the US per year. These people disproportionately represent marginalized communities, including low-income communities and communities of color. Once displaced, members of these groups tend to be displaced for longer periods of time, exposing them to additional human rights violations.

In this note, I explore the US displacement crisis from a human rights perspective, asking whether federal disaster law recognizes and affirms the rights unique to internally displaced people (IDPs) in the US. Specifically, I address IDPs’ right to freedom from discrimination, and the right to protections that address IDPs’ particular protection and assistance needs.

I begin the note by proposing a definitional framework for climate change-related migration in the US, followed by a review of the key social, political, and environmental drivers of disaster displacement. I then provide an overview of the UN Guiding Principles on Internal Displacement and the US federal disaster system.

With regard to IDPs’ right to freedom from discrimination, I conclude that the Stafford Act’s broad discretionary function exception, combined with federal courts’ narrow interpretation of the Act’s nondiscrimination provision, effectively block access to legal redress for protected groups disparately impacted by federal disaster programs. Regarding IDPs’ right to specialized protection and assistance, I conclude that federal funding structures under both the Stafford Act and the Housing and Community Development Act (especially the CDBG-DR) severely inhibit meaningful consultation with groups vulnerable to disaster displacement. I conclude with suggested reforms to facilitate the recognition and affirmation of these rights.