Scholar considers the constitutional right to travel in an era of climate-driven water scarcity.
Between January 2010 and July 2021, the driest communities in the American Southwest averaged 245 weeks of extreme drought—when critical water shortages and crop and pasture loss become common. During the same period, those communities grew by ten percent, adding nearly 7.5 million new residents.
In a forthcoming paper, Robin Kundis Craig of the University of Kansas School of Law explains that explosive population growth in America’s driest communities has been enabled by the constitutional right to travel. But she argues that courts must be careful not to protect this right at the expense of state and local governments’ ability to preserve the viability of their water supplies in a warming world.
Craig observes that the right to travel is not just the “right to vacation.” This right also protects resettlement: Americans may migrate domestically, and, after taking up residence in a new state and community, they must be treated the same as fellow residents.
Although climate change can ground planes and wash out bridges—temporarily preventing travel from point A to point B—its effects on the right to resettle are more existential, Craig argues.
Across large swaths of the United States, the most durable impact of climate change is reduced water supply, Craig explains. She observes that many communities simply do not have enough water for their current residents. This problem is exacerbated by the growing effects of climate change—including more frequent droughts and shifting rainfall patterns—and continued population growth.
Craig notes that common sense suggests that a community should not be forced to provide water to new arrivals when doing so would prevent it from meeting the baseline water needs of current residents or would jeopardize the long-term sustainability of its water supply.
In practice, states and local governments facing water crises might seek to ban or penalize new arrivals, Craig observes. She suggests that such measures could include a state refusing to issue driver’s licenses, vehicle registrations, and voter registrations to newcomers in selected zip codes, or a local government refusing to issue residential parking permits to new residents.
Outright bans or penalties directed at new residents in the United States are rare, Craig notes. Because the right to travel is a fundamental constitutional right, governmental action that directly blocks or penalizes resettlement will trigger strict scrutiny if challenged in court. To survive strict scrutiny, such restraints must serve a compelling government interest and be narrowly tailored to that interest.
Preserving a sustainable water supply may be a compelling interest, Craig argues.
The limit case—current residents dying of thirst with no additional water available by any means, at any cost—would likely survive strict scrutiny, Craig contends. But the limit case is far-fetched, she continues: Some water is likely always to be available at some cost, and, in any event, few migrants would seek to settle in a community in desperate straits.
The more likely scenario is a community approaching water-supply unsustainability under “new normal” climate conditions, with additional water available only at prohibitive cost, Craig suggests. Could such a community place restrictions on new residents?
The U.S. Supreme Court’s skepticism of financial justifications for restricting the right to travel would make it almost impossible to articulate a sufficiently compelling interest if a government has at least some means—however impractical or expensive—to obtain additional water, Craig argues.
The more viable “front-line” response to water shortages would be for states and localities to impose moratoria on new construction, Craig argues. A number of towns and municipalities nationwide have imposed such moratoria in response to water-supply constraints caused or worsened by climate change. Many of these bans have been intended, at least in part, to restrict population growth, she explains.
Craig notes that federal courts have yet to address whether water-scarcity-motivated building bans violate the right to travel. But if courts conclude that moratoria with only indirect and non-targeted effects on prospective residents do not trigger strict scrutiny, these measures should be upheld as conventional exercises of state and local land-use authority, she reasons.
Greater clarity may be forthcoming. Craig expects that the mounting effects of climate change will lead to more moratoria and, in turn, to constitutional challenges in federal courts.
Craig urges courts to weigh two competing considerations as these challenges arise. On the one hand, she insists that it serves no one—including would-be residents—to exhaust the existing water supply or to require the acquisition of additional water at a cost that makes life in the community impossible. If building moratoria always violate the right to travel, the traditional power to use land-use controls to manage population growth and density would be “eviscerated,” making it impossible for some water-burdened communities to survive as climate impacts mount, Craig argues.
On the other hand, building moratoria nominally based on water sustainability must not be allowed to become a tool for creating or maintaining enclaves of wealth and privilege, Craig warns.
Accordingly, Craig asks courts to avoid one-size-fits-all rules when determining whether water-scarcity-related building moratoria violate the constitutional right to travel, including the reflexive resort to strict scrutiny. She urges, instead, a “jurisprudence of how”—not of “whether”—state and local governments may use building moratoria as a means to limit growth, affording communities the flexibility they need to adapt to a drier, harsher climate.
