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.

Greenwashing action against operator of KLM Royal Dutch Airlines for allegedly misleading consumers about efforts to limit the effects of climate change.

Long v. Koninklijke Luchtvaart Maatschappij, N.V.

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Federal Court Said Airline Deregulation Act Preempted Climate Washing Claims Against Airline

Filed

United States of America

Virginia

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An aim to achieve a quantifiable outcome within a given time-frame, set by an institution such as a national government.

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Area of the economy in which actors engage in identical or related activities.

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A long-lived, colourless gas, chiefly emitted from fossil fuel combustion, deforestation and cement production.

This sector involves activities to move goods and people, alongside the storage of products.

This sector creates and distributes information and entertainment through television, radio, print, and digital platforms.

Activities that relate to the production of goods and services from forests.

Slow onset events evolve gradually from incremental changes over many years or from increased frequency or intensity of recurring events. As defined in the Cancun Adaptation Framework (2010), slow onset events include risks and impacts from rising temperatures, desertification, biodiversity loss, land and forest degradation, glacial retreat, ocean acidification, sea level rise, and salinization.

Federal Court Said Airline Deregulation Act Preempted Climate Washing Claims Against Airline

Target

Policy instrument

Risk

Greenhouse gas

Economic sector

Adaptation/resilience

Finance