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Addressing Failures in Invoking the Criminal Climate Necessity Defense: Climate-Related Civil Suits as Guides to Choice of Direct Climate Actions

By Nwamaka Ikenze*

As part of climate change campaigns, climate activists should adopt a legal strategy that leverages successful climate-related civil suits to address failures in attempts to invoke the criminal climate necessity defense. The implementation of this civil-suit approach would yield both direct and corollary strategic benefits for defense against prosecution of direct climate actions.

The necessity defense, which seeks to justify otherwise criminal conduct, rests on the idea that justice and law enforcement can sometimes be at odds.[i] The defense is often explained as a matter of public policy, recognizing that society can sometimes be better served by violating the law, thus preventing harm.[ii] This idea has long been recognized at common law, and some states have also codified the defense.[iii]

For years the necessity defense has been an integral part of broad environmental activism strategies.[iv] Specifically, climate activists have attempted to invoke the climate necessity defense against criminal prosecution of direct climate actions, seeking an opportunity to educate the public on climate issues during trial and looking to secure precedential advantage. This discussion looks to successful climate-related civil suits to propose a solution to difficulties facing defendants who attempt to invoke the climate necessity defense.

Invoking the defense generally involves satisfying a three-element test that weighs the criminal conduct against the harm it is meant to prevent. A representative three-element test requires that “(1) there is no legal alternative to violating the law, (2) the harm to be prevented is imminent, and (3) a direct, causal relationship exists between [the] defendant’s action and the avoidance of harm.”[v] Attempts to invoke the defense often fail to satisfy all three prongs.[vi]

In North Dakota v. Foster, the court held that defendants who turned off a Keystone XL valve failed to satisfy all three elements of the necessity defense.[vii] The court held that defendants failed to demonstrate a lack of legal alternatives, citing among other things participation in the electoral process, peaceful protest, and publication of information as legal alternatives.[viii] Characterizing the imminence requirement, the court in Foster affirmed the holding in U.S. v. Bailey that “the harm to be avoided must be so imminent that, absent the defendant’s criminal act, the harm is certain to occur.”[ix] The court held that a mere possibility of harm at some unknown place at an unknown future time is not imminent.[x] The court further held that the harm intended to be prevented was not sufficiently related to the preventative conduct when defendants argued that by turning the valve off they reduced the amount of tar sands oil transported by the pipeline, thus reducing the risk of reaching climate change tipping points.[xi] The court called this causal relationship “tenuous and uncertain.”[xii]

Holdings like those in Foster severely restrict the direct climate actions for which the necessity defense is available. In contrast, plaintiffs in civil cases have sometimes successfully demonstrated climate-related injuries, assigning liability under existing environmental laws.[xiii]

This discussion will focus on resolving difficulties in satisfying the causality requirement of the three-element test by leveraging the alleged harms from these successful climate-related civil suits.[xiv]

In Comer v. Murphy, for example, a class of Mississippi homeowners filed a suit alleging that emissions by the defendant energy companies caused global warming, resulting in a more destructive Hurricane Katrina. Plaintiffs asserted claims of public nuisance among others.[xv] A panel of the Fifth Circuit held that the plaintiffs had standing to bring claims for nuisance, trespass, and negligence.[xvi] In other words, the court held that the plaintiffs had sufficiently demonstrated a causal link between the defendant’s climate-damaging conduct and the plaintiffs’ injuries.

Leveraging successful civil suits like Comer, climate activists have an opportunity to narrowly tailor their direct climate actions to meet the requirements of the climate necessity defense. Mississippi activists might engage in direct climate actions that target energy companies, for example, relying on the causal link established by the plaintiffs in Comer as an initial foundation to support the causal element of the climate necessity defense. Where the plaintiffs in Comer proved property damage resulting from energy companies’ activities, which is not a sufficient harm to support the necessity defense, climate activists can extend the causal argument to the 1,800 lives lost in Hurricane Katrina as a result of her increased severity.[xvii]

Though invoking the climate necessity defense against direct climate action prosecution poses many challenges, mirroring climate-related civil suits in this way may offer strategic potential.[xviii] Beyond the Gulf Coast, climate activists may similarly turn to civil suits related to a number of annual weather events to establish a foundation for causality. In the American West activists can turn to increasingly severe annual wildfires, for example.[xix] By analogy, this strategy offers activists a bank of partially necessity-qualified direct climate actions.

While this strategy focuses only on the causality requirement of the necessity defense test, climate activists may also be able to routinely establish imminence by relying on predictable events like climate-worsened Hurricane Katrina.[xx] Further, with the narrow imminence timeframes that annual weather events provide, activists may also be able to better demonstrate a lack of legal alternatives to direct climate action, as increased imminence logically restricts available legal alternatives. These corollaries to implementation of the civil-suit strategy, in conjunction with the implementation of the civil-suit strategy itself, may enable activists to routinely invoke the climate necessity defense, thus supporting a broad environmental activism strategy.[xxi]

*Nwamaka Ikenze is a Junior Editor on MJEAL. She can be reached at

The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

[i] Laura J. Schulkind, Applying the Necessity Defense to Civil Disobedience Cases, 64 N.Y.U. L. Rev. 79, 83 (1989).

[ii] Id.

[iii] Id.

[iv] See Paul Rees, Climate Change: What’s Law Got to Do With It, Climate Defense Project (June 2017),

[v] U.S. v. DeChristopher, 695 F.3d 1082, 1096 (10th Cir. 2012).

[vi] Id.

[vii] Northeast Jud. Dist. Ct. Pembina Cty. v. Foster, N.D., No. 34-2016-CR-00186 at *3 (Oct. 6, 2016).

[viii] Id.

[ix] U.S. v. Bailey, 444 U.S. 394, 416-17, 100 S.Ct. 624, 591 (1980); Northeast, supra note 7.

[x] Northeast Jud. Dist Ct. Pembina Cty, at 4.

[xi] Id. at 5.

[xii] Id.

[xiii] See DeChristopher, supra note 5.

[xiv] Id.

[xv] Comer v. Murphy Oil USA, 718 F.3d 460, 465 (5th Cir. 2013).

[xvi] Id.

[xvii] Schulkind, supra note 1; The Editors of Encyclopaedia Britannica, Hurricane Katrina, Encyclopaedia Britannica (Jul. 17, 2018),

[xviii] See DeChristopher, supra note 5.

[xix] Impacts of Climate Change in California Significant and Increasingly Stark, New Report Says, CalEPA (May 9, 2018),

[xx] See Comer, supra note 15.

[xxi] See Rees, supra note 4.

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