Long v. Koninklijke Luchtvaart Maatschappij, N.V.

The federal district court for the Eastern District of Virginia held that the Airline Deregulation Act expressly preempted climate washing claims against the operator of KLM Royal Dutch Airlines (KLM). The ADA’s preemption clause provides that states “may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier.” The plaintiff asserted a claim under the Virginia Consumer Protection Act (VCPA) and a breach of contract claim based on allegations that KLM misled consumers with its “Fly Responsibly” initiative, which committed the airline to greenhouse gas emissions reductions consistent with the Paris Climate Agreement. (The plaintiff originally also brought an unjust enrichment claim but later withdrew it.) The plaintiff alleged that no credible evidence supported the claim that purchase of carbon credits, including for reforestation projects, would negate the effects of flying. The plaintiff also alleged that KLM’s limited use of sustainable aviation fuels would have a negligible impact on emissions. The court found that the VCPA claim was preempted because it relied upon enforcement of state law and because the plaintiff’s argument that KLM’s climate change-related marketing was misleading “certainly relates” to KLM’s service. The court also found that the ADA preempted the breach of contract claim. The court first noted that “the contours of the alleged contract are unclear” and also rejected the plaintiff’s argument that the defendant’s climate-related advertising should be incorporated into the terms of the contract. The court found, however, that the “larger issue” was that the breach of contract claim did not fit within an exception to ADA preemption for breach of contract claims alleging a defendant’s “breach of its own, self-imposed undertaking,” without “enlargement or enhancement based on state laws or policies external to the agreement.” The court found that the plaintiff’s breach of contract claim was a “thinly veiled repackaging of his VCPA claim” (i.e., based on state laws or policies) and that the preemption exception therefore did not apply.

A class action lawsuit filed in the federal district court for the Eastern District of Virginia alleged that the operator of KLM Royal Dutch Airlines (KLM) misled the plaintiff and other consumers with “words, promises, commitments, plans, and pictures … about its efforts to limit the effect of climate change.” The allegedly misleading actions included KLM’s commitment to reduce emissions by 12% below 2019 levels by 2030, enticements for customers to “offset” and “reduce” environmental impacts through KLM’s CO2ZERO program, KLM’s focus on sustainable aviation fuels (SAF), and emission reduction projections based on a “well below 2°C scenario.” The plaintiff alleged that carbon offsets and credits would not negate the impacts of flying, that SAF would have “a negligible effect on reducing CO2 emissions from flying,” and that KLM’s emissions reduction targets were not consistent with the Paris Agreement, CO2ZERO, or carbon neutrality. The plaintiff alleged breach of contract and unjust enrichment claims, as well as a claim under the Virginia Consumer Protection Act of 1977.