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Here are highlights of this month's climate litigation update. The full update is available here:
Federal Courts Said Airline Deregulation Act Preempted Climate Washing Claims Against Airlines
In August 2024, two federal district courts ruled that the Airline Deregulation Act (ADA) preempted consumers’ state law claims that airlines misled consumers regarding their commitments to reduce greenhouse gas emissions.
On August 26, 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. Long v. Koninklijke Luchtvaart Maatschappij, N.V., No. 3:23-cv-00435 (E.D. Va. Aug. 26, 2024)
On August 13, the federal district court for the District of Maryland held that the Airline Deregulation Act preempted a plaintiff’s climate washing claims against United Airlines, Inc. (United). The plaintiff asserted a claim under the Maryland Consumer Protection Act and a common law fraud claim (later withdrawn), alleging that he paid more to fly on United because the company was committed to reducing the impacts of flying, including by using sustainable aviation fuel. He alleged he would not have paid more had he known that only .025% of United’s fuel supply was SAF and that SAF still emits carbon dioxide and other pollutants. The court “easily” concluded that the MCPA claim related to United’s provision of transportation services and was therefore preempted by the ADA. The court further concluded that the claim should be dismissed with prejudice because “the deceptive provision of services is the heart of the claim,” and the plaintiff would not be able to amend the claim to escape dismissal. Zajac v. United Airlines, Inc., No. 8:23-cv-03145-PX (D. Md. Aug. 13, 2024)
South Korea: Constitutional Court Finds Climate Law Partially Unconstitutional
On March 13, 2020, nineteen youth activists filed a complaint in the South Korean Constitutional Court alleging that the nation’s climate change law violates their fundamental rights, including the right to live and a clean environment. On February 15, 2024, this case, 2020Hun-Ma389, was consolidated with three others: 2021Hun-Ma1264, 2022Hun-Ma854, and 2023Hun-Ma846.
On August 29, 2024, in a unanimous decision, the Constitutional Court found that Article 8, Paragraph 1 of the Framework Act on Carbon Neutrality and Green Growth is not in conformity with the Constitution, ordering the National Assembly to amend the law by February 28, 2026. The Constitutional Court found that the lack of legally binding targets for reductions beyond 2031 violated the constitutional rights of future generations and failed to uphold the government’s duty to protect those rights.
The court dismissed other claims challenging the Carbon Neutrality Basic Plan and the enforcement decrees of the Framework Act on Carbon Neutrality and Green Growth. (2020Hun-Ma389, 2021Hun-Ma1264, 2022Hun-Ma854, 2023Hun-Ma846 (consolidated), Constitutional Court, South Korea)
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