The 2017 hurricane season demonstrated the “second disaster” phenomenon. Climate-fueled storms are the first, named disaster. The second disaster is the tragedy that results from the lack of preparedness of decision-makers — at all levels — who have failed to plan in a manner consistent with the risks presented.
Perhaps few phenomena underscore that more than the post-disaster displacement and long-term relocation that climate change is increasingly inducing. While there is an infrastructure to manage post-disaster displacement and support displaced persons, its ability to effectively and equitably support individuals and communities has been lacking.
For planned, long-term relocation, the circumstances are more concerning. The United States has no coherent and coordinated regulatory approach to address the core questions facing communities that will need to relocate: Who is vulnerable to a crumbling coastline? What are the parameters for determining that a community is no longer habitable? Where will they go to ensure a viable relocation? And when are these determinations made — before or after the next devastating flood event or storm?
The absence of adequate safeguards and planning are at their most apparent in the context of displacement and relocation induced by sudden and long-term climate change-related disasters. During the closing days of the Obama administration, the White House Council on Environmental Quality attempted to coordinate several federal agencies to address larger-scale, permanent displacement and relocation of Americans — from the deltas of Louisiana to the coastal tundra of Alaska. That effort quietly died with the change in administrations in 2017. The fierce storms in the months that followed, however, are a harbinger of things to come, raising the question of whether the United States will improve its ability to withstand the first disaster and thereby avoid the second.
The Current Law and Policy Vacuum
Defining terms and context
A baseline problem for those concerned with the impact of climate change on human mobility is the absence of any law or policy framework addressing the issues. Even the terminology used can mask this problem. While the media widely deploys the term “climate refugee,” the term “refugee” has a specific legal definition that doesn’t cover those migrants whose displacement might be linked to a climate-fueled disaster. These individuals have no recognized legal identity or framework to address their movement under domestic or international law.
For the most part, government officials, researchers, and community members are simply working to understand exactly how climate change will induce or influence human displacement, migration, and relocation of communities in present-day and future circumstances. While often used interchangeably, each term describes relatively distinct phenomenon.
Displacement is the forced movement of people from a location due to one or several factors. These factors include climate-related and other disasters, political or armed conflict, and development.
Human migration is the movement of people from one location to another for the purpose of seasonal settlement or permanent resettlement, often to obtain more desirable living conditions.
Relocation is the planned process of leaving a fixed settlement for another permanent settlement, which one or several factors, including the impacts of climate change, may induce.
Each term reflects the varying triggers for movement that are either sudden-onset, including climate-related disasters such as intense hurricanes or wildfires, or slow-onset events or gradual environmental degradation such as droughts that produce water scarcity or prolonged, stifling heat. The United States is not immune to these disasters, as evidenced by communities that are currently grappling with them, from Alaska to Puerto Rico. Further, the country will have to balance the needs of internal movement of residents with those of international migrants, similarly displaced by regional and global climate disasters.
Climate-related disasters and disparate displacement
The climate signal in Hurricane Harvey was surprisingly strong, leading researchers to determine that climate change had roughly tripled the odds of a Harvey-type storm. The result was that in just over 36 hours, 9 trillion gallons of rainwater deluged the Gulf Coast of Texas, including Houston, and displaced tens of thousands.
Communities of color and low-income communities are particularly vulnerable to disaster-induced displacement. New Orleans’ experience of post-Katrina displacement, unevenly experienced, is an important historical analogue. Those in vulnerable communities suffered disproportionately. More likely to rent than own their dwellings, people of color and low-income residents were vulnerable to sudden involuntary displacement via mass “blindsiding” evictions. Many New Orleanians did not even receive notice of eviction, but instead found out that their homes and housing complexes were to be shuttered, and they were to be homeless through broadcast television announcements.
Low-income residents and people of color are also more likely to suffer displacement both before and after disasters due to high levels of background pollution. In 2017, families in Port Arthur, Texas, a Gulf Coast city about 90 miles east of Houston, were already familiar with the experience of voluntary displacement, having requested removal and relocation because of air pollution from oil refineries and petrochemical plants that saturate their communities. These industrial facilities are often located within yards of homes, schools, and playgrounds. Harvey flooded neighborhoods saddled with toxic Superfund sites, overflowing sewers, garbage, and landfills that accompany the region’s outsized petrochemical footprint, forcing further displacement.
The impacts on people of color were and continue to be disproportionately negative. The root causes of these impacts are deep and persistent — from the discriminatory policies that funneled or redlined African Americans and Latinos, for example, into marginal conditions to the disparate effects of the rebuilding process on these communities.
In Houston, the absence of zoning restrictions helped to concentrate pollution in the communities with the highest concentration of Latino and African American families. Years before Harvey made landfall, environmental justice scholars Robert Bullard and Beverly Wright noted: “[t]his no-zoning policy has allowed for a somewhat erratic land-use pattern in the city. . . Houston’s black neighborhoods were unofficially ‘zoned’ for garbage.”
Additionally, the infrastructure for stormwater and flood management itself is aged and dilapidated, thus deepening the racially divided exposure to climate risks and increased likelihood of displacement. And storm damage is not limited to infrastructure but can also introduce loss of employment, as well as the further devastating losses of friends, family, community, and culture.
Any systematic effort to address the problem of climate displacement must begin with strengthening planning and environmental, health and safety protections, to enhance community resilience while also enhancing social equity. This is particularly important during rebuilding and recovery, when cities like Houston run the risk of “rebuilding gentrification,” in which the “greening up” of a city for resilience results in permanent displacement for those who have lived in neighborhoods for generations.
The Stafford Act and post-disaster displacement
As noted above, we lack adequate regulatory tools or a systematic approach to the challenges presented by climate-induced migration and planned relocation. There are ad hoc efforts in Alaska and Louisiana currently underway; however, a coherent and comprehensive interagency, multi-scalar, and cross-sectoral approach is lacking. The primary federal responses to pre- and post-disaster displacement are grounded in the Robert T. Stafford Disaster Relief and Emergency Assistance Act (the “Stafford Act”) and the National Flood Insurance Program — specifically the latter’s buyout programs for repetitive loss properties.
In order to improve coordination and responsiveness of disaster preparedness and relief efforts, Congress enacted the Stafford Act. The act aims to “provide an orderly and continuing means of assistance by the Federal Government to State and local governments in carrying out their responsibilities to alleviate the suffering and damage which result from such disasters.” In order to initiate federal support, the president must make a major disaster declaration. A “major disaster” is
[a]ny natural catastrophe (including any hurricane, tornado, storm, high water, wind-driven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, or drought), or, regardless of cause, any fire, flood, or explosion, in any part of the United States, which in the determination of the President causes damage of sufficient severity and magnitude to warrant major disaster assistance under this chapter to supplement the efforts and available resources of States, local governments, and disaster relief organizations in alleviating the damage, loss, hardship, or suffering caused thereby.
A major disaster declaration is made only when “response is beyond the capabilities of the State and the affected local governments and that Federal assistance is necessary.”
Once the president has issued a major disaster declaration, the Federal Emergency Management Agency (FEMA) can provide federal assistance to state recovery efforts from its Disaster Relief Fund. The Stafford Act also authorizes FEMA to grant money to individuals and households through its Individuals and Households Program (IHP). Under Section 408, the agency can provide “financial assistance, and if necessary, direct services, to individuals and households in the State who, as a direct result of a major disaster, have necessary expenses and serious needs” they are otherwise unable to meet. The types of assistance provided include funds for temporary housing, repair of a primary residence, replacement of a residence and permanent or semi-permanent housing, and financial assistance for other needs, such as medical care and personal property. While the Stafford Act relief and grant programs can support temporarily displaced people and recovery efforts for homeowners and renters, the homeless, undocumented residents, certain aliens, and other displaced people are ineligible for these programs or otherwise face insurmountable barriers to successfully navigating the grant process.
There are aspects of the construction and execution of the Stafford Act that hamper its ability to adequately assist those displaced by disaster. After Hurricane Sandy, the law’s prohibition against duplication of benefits had the effect of “punishing” homeowners who proactively rebuilt their homes. Administrative errors disadvantaged recipients of support through FEMA’s IHP, resulting in thousands of claims stuck in the review process years after the storm. The failings of the disaster recovery system — from the Stafford Act generally and FEMA’s IHP to the NFIP program — resulted in Sandy homeowners “selling their homes back to the State, losing their homes to foreclosure or short sale, leaving their ‘nest egg’ or draining every bank and retirement account with the hopes of rebuilding what is now a distant memory.”
Lawmakers from both parties, the insurance industry, planning experts, and advocates have critiqued the kinds of massive, though still inadequate, congressional aid packages passed in the wake of disasters as socializing flood risks in ways that encourage people to live in flood-prone areas. There is, however, skepticism that reform measures will meaningfully reduce congressional willingness to fund post-disaster, despite the signals it sends regarding the dangers of living along the ever-more-risky coasts.
While there is no comprehensive federal approach for planned relocation — and seemingly none forthcoming — a range of legal mechanisms to support retreat from the coastlines are available, including local governments’ “downzoning” flood-prone areas, creating setbacks or buffers, and securing easements from developers in exchange for necessary permits. In addition, the federal Coastal Zone Management Act affirmatively encourages states to develop comprehensive coastal management programs in order to access federal funds. The Disaster Mitigation Act (DMA) provides a similar carrot. They are generally unsuccessful, however, evinced by the fact that the population of coastal counties is still growing.
In a few instances, however, municipal governments have taken advantage of federal grant and loan programs that permit acquisition of new property for relocations. FEMA and the Department of Housing and Urban Development’s Community Development Block Grants (CDBG) aid rebuilding by providing grants to state and local governments for post-disaster buyout programs. Buyouts target homes and buildings affected by disasters, especially floods, and provide owners with payments that are greater than what they could obtain in the real estate market.
Such buyout programs may be a viable strategy for coordinated relocation of communities. In order to facilitate successful community relocations, buyout programs can adopt strategies and policies that encourage owners to sell properties in groups and also purchase new homes and businesses in areas designated for relocation. However, the strategy has significant limitations. The municipality must match federal funding through the Flood Mitigation and Community Development Block Grant programs. Furthermore, funds available before serious disasters are limited, blunting proactive, preventative relocation efforts. In addition, many communities, including some threatened Alaska Native villages facing relocation, are ineligible for these funds because they lack incorporated municipal governments.
Even if viable, buyout for relocation would likely be met with significant resistance. After Katrina, New Orleans weathered a political firestorm on the issue of permanent displacement (effectively post-disaster relocation) that would result from city government plans to prevent rebuilding. Storm and flood victims’ reactions to disasters are typically characterized by an intense and unwavering desire to rebuild. Alexander B. Lemann described this emotion as “one of the key obstacles standing in the way of the road to more resilient housing patterns, and yet it typically is ignored by the community of scholars who study disaster law and policy.” This is particularly significant for low-income and of-color communities that shoulder a disproportionate concentration of disaster risk. Lemann explains:
For many of its victims, Hurricane Katrina demonstrated that the government regarded them as not worthy of protection. Although rebuilding in these cases might be a way of countering this message, a prohibition on rebuilding only makes that message stronger. By trying to enforce retreat in the wake of floods that have disparate impacts, governments appear to signal their desire to rid themselves of particular groups entirely. Rebuilding thus becomes an act of political resistance, a way of avoiding being erased and getting even with wealthier, drier communities.
Following Katrina, 75 percent of respondents said that low-lying areas of the city destroyed by the hurricane should be rebuilt, 95 percent said that the region's levee system should be rebuilt and strengthened and 86 percent of respondents said they were planning to remain in the area. This heavy support for rebuilding reflects a deeper critique of the post-disaster planning. Residents accused the mayor of “taking part in a ‘Katrina cleansing”’ and attacked the plan for trying to “turn ‘black people's neighborhoods into white people's parks.’” Lemann also describes the “long history of tension arising over post-disaster efforts to increase resiliency that are perceived as thinly veiled forms of social engineering.”
Rebuilding, in many respects, may be “an act of defiance against an unfair and discriminatory system.” Resettlement, or moving communities as a whole rather than individuals piecemeal, is one way in which the value of a community may be respected while advancing the protection needs at the coasts. However, resettlement is fraught with many difficulties and may not be scalable given the sheer number of vulnerable coastal residents. As the examples of resettlement multiply, it is crucial that we learn from the experiences so they can be improved upon and serve as one of a basket of responses.
Learning from Success: The Martín Peña Canal Case Study
Many efforts to respond to flooding are led by some combination of local, state, and federal governments, and, as a result, residents feel disempowered. Opportunities and resources to mitigate exposure through structural practices or by migrating from flood-prone areas through buyouts, for example, are largely dependent on government funded and managed programs. However, in Puerto Rico, a unique experiment in community-led governance and land ownership shows promise for promoting equitable adaptation to flooding risks by empowering communities to implement management of retreat and migration of their own design.
In 1932, the San Ciprian hurricane devastated portions of Puerto Rico. Masses of impoverished, rural Puerto Ricans, already induced to migrate from growing economic depression, moved to the marginal and unimproved low-lying mangrove forests on the outskirts of urban San Juan. Over time, eight distinct enclaves formed around the Martín Peña Canal. These migrants built their homes in areas lacking public infrastructure, especially sewage systems, and on land they did not own. To the dismay of government planners and private developers, the Martín Peña Canal residents have persevered in one of Puerto Rico’s most severely impoverished, flood-vulnerable, and polluted communities, owing to the strength of the community, its grassroots leadership, and the necessity and resulting expertise of responding to and recovering from recurring disasters.
Government and public pressure to remediate flooding and pollution has grown steadily in the past 20 years. A dredging project first proposed in 2002 to remedy the situation called for displacing some 2,300 households. In response to this proposal, the organized Martín Peña Canal communities advocated for a comprehensive development and land use plan that would provide equitable and community-led relocation of impacted households. In accordance with the demands of community members and their allies, the Legislative Assembly of Puerto Rico passed the Martín Peña Canal Special Planning District Integrated Development Act (Puerto Rico Law 489) in 2004.
In part, the law chartered the Martín Peña Canal Community Land Trust to hold title to some 200 acres of previously public land on which new affordable housing would be built to relocate flood-prone households away from the impact of the dredging project. The land trust would also secure the tenancy of hundreds of existing homes. The land trust would generate revenue from affordable rental fees with which to finance construction of additional homes. To date, the Land Trust has used this land to relocate 600 households away from flood-prone areas into quality, affordable housing. However, additional investment and construction of homes is necessary to successfully relocate all of the households that are flood-prone and will be potentially displaced by the dredging project.
Eighty-five years after San Ciprian, Hurricane Maria tore a similar path across the island. In Martín Peña Canal, some 1,000 homes were damaged or destroyed and 100 households were left homeless. Unlike the hundreds of thousands of Puerto Ricans who have left the island in the months following Maria, the low-income or elderly residents of Martín Peña are more typical of those immobilized, rather than displaced, by disaster. However, the residents of Martin Pena Canal have been lauded for their disaster resilience, built through years of hard fought and community-led revitalization and adaptation.
Due to earlier government investments in community development and self-organization, community-based organizations and grassroots networks were already prepared for and familiar with flood relief and recovery and able to both operate without federal resources and coordinate with state and federal agencies. The Land Trust and other community-led organizations have demonstrated an ability to fundraise, implement, and coordinate recovery projects, including replacement of damaged roofs. As a collective for land ownership and housing management, the Land Trust is also suited to represent the interests of residents and advocate on their behalf to access federal funding to support housing recovery. In response to damage from Maria, the community organizations have established sophisticated partnerships with professional organizations in engineering and architecture to develop storm-resistant housing designs to weather future storms.
What Should Be Done?
State and local governments need to fill the climate change adaptation and disaster resilience vacuum left by the current presidential administration
With the federal government largely ignoring climate change and thereby contributing to the second disaster, it is more important than ever for states, counties, and tribes to take action. The post-Sandy recovery effort revealed and underscored the necessity of integrated services to assist with recovery. Though the federal government must be a partner for long-term success in disaster resilience and recovery efforts, the current administration cannot be relied upon to provide leadership in this area. In fact, proposed deregulation and budget cuts will further limit the already constrained opportunities to support community resilience in general and for the most vulnerable specifically.
State governments also have a vital role to play in supporting land acquisition and governance strategies for relocation. With access to public lands and detailed land use data, states can work with their communities to help identify opportunities to acquire land for relocations. States also have the authority to create or adapt laws, policies, and programs for land use that can serve the land acquisition and governance needs of relocation communities. States can budget their agency resources to provide communities with technical assistance for site feasibility studies and development. And while federal funding opportunities may support only one portion of the community relocation process, states can direct sustaining support to communities to ensure the long-term success of resettlement.
Nonprofit organizations can connect individuals and communities with the resources they need to adapt, relocate, and proactively plan for future disasters
Nonprofit organizations play a special role in supporting relocating communities with assistance in land acquisition and governance. Nonprofit partners are uniquely situated to provide pro bono legal and technical assistance to exclusively serve the best interests of communities. Nonprofits can assist by providing unbiased legal and technical interpretation of options for land acquisition and governance for relocation. Nonprofit organizations also provide critical support in building capacity within communities and in empowering and amplifying the voices of community leaders to advocate for access to public and private resources for relocation.
Over the long-term, the federal government must reclaim its leadership role in climate change adaptation and proactive resiliency efforts
The relocation opportunities presented by the federal government must be enhanced over the long term. Adequate funding for and forward-looking design of federal technical assistance and grant- and loan-making programs will greatly assist communities challenged by climate-related displacement and relocation. The federal government needs to provide adequately funded and procedurally appropriate opportunities to acquire and manage land for relocation.
 For related discussion on “climate gentrification” and its possible effects on geographies and property markets in Miami-Dade County, Florida, see Jesse M. Keenan, Thomas Hill, and Anurag Gumber, “Climate gentrification: from theory to empiricism in Miami-Dade County, Florida,” IOP Science, http://iopscience.iop.org/article/10.1088/1748-9326/aabb32.
For a brief introduction to domestic climate relocation and a study of seven tools for displaced communities seeking to secure and manage new land, see Maxine Burkett, Robert R.M. Verchick, and David Flores, “Reaching Higher Ground: Avenues to Secure and Manage New Land for Communities Displaced by Climate Change,” Center for Progressive Reform (2017), http://www.progressivereform.org/reachinghigherground.cfm.
See Melissa Luckman, Daniel Strafer, Christina Lipski, Three Years Later, Sandy Survivors Remain Homeless, 32 Touro L. Rev. 313, 323 (2016) (describing that after Superstorm Sandy, FEMA provided more than one billion dollars in grant money via the Individuals and Households program but that while IHP helped homeowners, thousands of individuals three years post disaster were being asked to give this money back, on the basis a FEMA internal audit that flagged wrongful dispersal of some grant money).