{"id":10868,"date":"2022-07-12T10:03:43","date_gmt":"2022-07-12T15:03:43","guid":{"rendered":"https:\/\/blogs.law.columbia.edu\/climatechange\/?p=10868"},"modified":"2022-07-12T12:11:01","modified_gmt":"2022-07-12T17:11:01","slug":"guest-commentary-a-new-frontier-in-dutch-climate-litigation-greenwashing-advertisements-on-co2-compensation","status":"publish","type":"post","link":"https:\/\/blogs.law.columbia.edu\/climatechange\/2022\/07\/12\/guest-commentary-a-new-frontier-in-dutch-climate-litigation-greenwashing-advertisements-on-co2-compensation\/","title":{"rendered":"Guest Commentary: A new frontier in (Dutch) climate litigation: Greenwashing advertisements on CO2 compensation"},"content":{"rendered":"
<\/div>

By Marlies Hesselman*<\/p>\n

The first week of July 2022 brought on several major developments in climate litigation in the Netherlands, with possibly significant ramifications for a new type of global climate litigation. After landmark decisions in Urgenda<\/em><\/a> and Shell<\/em><\/a>, plaintiffs are asking a Dutch court to weigh in on a case that forms part of a new set of pioneering climate litigation cases. This time, the case relates to greenwashing advertisements involving misleading claims on climate action by carbon majors. The new Dutch case<\/a>, FossielVrij NL v. KLM<\/em><\/a>,<\/em> was filed by Fossielvrij NL<\/em> \u2013 supported by ClientEarth and Reclame Fossielvrij<\/em> \u2013 in the Amsterdam District Court on July 6, 2022, against major Dutch airline company KLM. The case follows a series of damning non-binding decisions by the Dutch national Advertising Code Commission (ACC) on similar campaigns by KLM and Shell. The ACC\u2019s reasoning, detailed below and in the writ, will likely inform the court\u2019s reasoning in the FossielVrij<\/em> case.<\/p>\n

This blog post introduces this novel civil lawsuit and the ACC decisions. The court case specifically addresses KLM\u2019s so-called \u201cfly responsibly\u201d and \u201cCO2ZERO\u201d campaign, advertising that customers can fly \u201cresponsibly\u201d by making payments to a GHG compensation scheme, and to a lesser extent, through the purchase of biofuels. The Fly Responsibly ads present the airline as \u201ccreating a more sustainable future\u201d and as being on track to reduce its emissions to net zero by 2050.<\/p>\n

<\/p>\n

Whilst the Dutch case is novel and the first of its kind in Dutch courts, it is not wholly unique: several advertisement cases are pending in European courts, e.g., in France<\/a> and Denmark<\/a>. Advertisement complaints are also pending or have been successfully decided before various national competition and advertising standards authorities, e.g., in Italy<\/a>, the UK<\/a>, Australia<\/a>, Canada,<\/a> and New Zealand<\/a>.<\/p>\n

This \u201csplash\u201d of misleading advertisement cases (rather than a \u201cwave\u201d) seems to be a fairly new<\/a> phenomenon in climate litigation. As such, the plaintiffs\u2019 arguments will be vital for bringing comparative cases in other jurisdictions. In addition, the outcome of the cases will be relevant to other companies promoting claims based on CO2<\/sub> compensation schemes. In this context, the reasoning of the claimants and the ACC will offer valuable inspiration for greenwashing litigation playbooks.<\/p>\n

The new Dutch climate case on greenwashing in KLM\u2019s <\/strong>CO2<\/sub>ZERO campaign<\/strong><\/p>\n

On July 6, 2022, Dutch environmental organization Fossielvrij NL<\/em> (FossilFree NL<\/em>) announced it would take major Dutch airline company KLM to court over misleading advertisements. The suit was launched after a formal letter of summons<\/a> was presented to KLM at one of its board meetings<\/a> in May 2022 and unsuccessful negotiations thereafter.<\/p>\n

Specifically, the new suit addresses KLM\u2019s Fly Responsibly campaign, promoting the airline\u2019s efforts towards \u201ccreating a more sustainable future\u201d and on track to reduce its emissions to net zero by 2050, in line with KLM\u2019s alleged commitments to the Paris Agreement goals. As part of the Fly Responsibly campaign, KLM\u2019s \u201cCO2ZERO campaign\u201d offers customers the option to \u2018fly responsibly\u2019 by buying carbon offsets \u2013 labeled \u201cCO2ZERO.\u201d These offsets are mostly realized through reforestation projects and to a lesser extent, the purchase of \u201cSustainable Aviation Fuels\u201d (SAFs). FossielVrij NL<\/em> argues that CO2ZERO\u00a0labels are misleading because reforestation projects funded with such offsets cannot effectively, definitely, and absolutely guarantee that the entire or even a substantial part of the footprint of a flight is \u201cneutralized.\u201d In short, claims of flying \u201cCO2<\/sub>-neutral\u201d or \u201cCO2<\/sub>-zero\u201d cannot be guaranteed, based on various expert reports, nor can payments in the order of three euros per tonne of CO2<\/sub> offer any meaningful \u201climitations\u201d or \u201ccounter effects\u201d to the harmful effects of a flight. Similarly, the amount of \u201csustainable aviation fuel\u201d that KLM purchases is negligible and cannot make a meaningful and realistic contribution to realizing CO2<\/sub> neutrality and achieving the needed emissions reductions in line with the objectives of the Paris Agreement. The misleading nature of the claims lies in the contested climate benefits of various alternative fuels, their scalability for meaningful use in aviation, and KLM\u2019s limited objective of using 10% of SAFs on its flights by 2030. SAFs\u2019 current use is less than 1%. The plaintiffs further contend that KLM\u2019s current Climate Action Plan wrongly supports an overall GHG reduction of 12% by 2030, based on the \u201cwell below 2\u2070C\u201d target of the Paris Agreement. That target is outdated and must be viewed as insufficient to curb dangerous global warming. KLM\u2019s implementing strategies also fall short of even meeting this low target.<\/p>\n

The main complaint then is that, by not being able to guarantee that CO2<\/sub> emissions for a flight can be meaningfully offset, the airline wrongly creates the impression that flying \u201cresponsibly\u201d is possible. The various schemes that customers can opt-in to do not significantly help to reduce KLM\u2019s footprint, and certainly not in any way additional to targets that the company is already expected to achieve. Instead, the company continues to seek growth and increased flight sales (including through its Real Deal Days campaign that is tied to CO2<\/sub>ZERO products). It should be reducing emissions by reducing the number of flights \u201cto keep a just, livable world within reach,\u201d not building its \u201clicense to grow\u201d by painting a too green and bright picture of flying. The plaintiffs argue that KLM\u2019s misleading greenwashing marketing undermines the urgent action needed to minimize climate catastrophe.<\/p>\n

Fossielvrij NL\u2019s<\/em> claims are supported by expert reports that concludes that KLM cannot validly claim that these kinds of schemes undo the climate effect of flying. It also refers to several other airline companies that have been critical of carbon credit schemes. The legal bases for the claim are European and Dutch consumer law, including in particular the EU Unfair Competition Practices Directive,<\/a> which is also cited in a greenwashing advertising suit in France<\/a>. This directive is implemented in Dutch law through Section 6:193 of the Dutch Civil Code. Under Section 6:196 of the Dutch Civil Code, the court can prohibit the making of a misleading advertisement statement and\/or impose a rectification. The plaintiffs further claim, similar to earlier Urgenda<\/em> and Shell<\/em> cases, that KLM commits a wrongful act under Section 6:162 of the Civil Code by violating an \u2018unwritten\u2019 societal duty of care. This is the societal duty \u201cnot to mislead,\u201d certainly when it leads to damage. This damage includes the damage of dangerous climate change for the health of present and future generations, which FossielVrij NL<\/em> seeks to protect, as well as that of its direct constituents<\/p>\n

The reasoning of the Advertisement Code Commission<\/strong><\/p>\n

The suit against KLM at the Amsterdam District Court does not come out of the blue. FossielVrij NL<\/em> and Reclame Fossielvrij<\/em> are two organizations that have been established primarily to ensure divestments in fossil fuels by major companies and to eradicate misleading advertisements on GHG emissions. Previously, advocacy has mainly focused on getting the ACC to rule on the misleading nature of various CO2<\/sub>-neutral advertisements. The ACC is the independent Dutch media watchdog that considers and issues non-binding decisions and recommendations on complaints about misleading advertising under the Advertisement Code. This is a form of self-regulation governing advertisement. Today, the ACC has addressed various claims related to climate change and CO2<\/sub> emissions, particularly against Shell<\/a> and KLM, of which several were successful.<\/p>\n

In particular, on April 8, 2022, the ACC directly addressed<\/a> KLM\u2019s \u2018Fly responsibly\u2019 and CO2ZERO\u00a0campaign by ruling that this campaign violated the advertising code\u2019s provisions on misleading advertising \u2013 especially those elements referring to \u201cclimate neutrality.\u201d Misleading slogans included: \u201cBe a hero, fly <\/em>CO2<\/sub>ZERO<\/em>\u201d or \u201cCO2<\/sub> neutral: KLM compensates for the <\/em>CO2<\/sub> emissions of your KLM Holidays flight<\/em>.\u201d The ACC noted, inter alia<\/em>, that whilst reforestation programs in which KLM invests meet certain recognized<\/em> theoretical<\/em> standards<\/em> (e.g., Gold Standard certification), there exist doubts in practice and amongst experts that emission reduction certificates purchased by KLM result in a full and permanent compensation \u201cdown to zero\u201d <\/em>in practice. The absolute environmental claims of achieving \u201cCO2<\/sub>-neutrality\u201d or \u201cCO2ZERO\u201d by compensating for the flight must be accompanied by ‘sound, independent, verifiable and generally recognized evidence’ that full compensation is guaranteed in practice. The commission did not see evidence for such claims.<\/p>\n

After this first blow, environmental organizations attempted to negotiate with KLM on amendments to the campaign, but to limited avail. On June 30, 2022, their arguments for starting proper litigation were bolstered by another decision of the ACC against a very similar campaign by Shell. According to that new decision, Shell is (still) misleading its customers through the slogan \u201cMake a difference. Compensate for <\/em>CO2<\/sub> emissions\u201d \u2013 <\/em>despite this slogan being amended from \u201cMake a difference. Drive <\/em>CO2<\/sub>-neutral.<\/em>\u201d<\/p>\n

In a first decision of the ACC, issued<\/a> in August 2021, Shell’s slogan was found to be misleading because Shell could not prove that its customers could fully compensate for GHG emissions by paying 1 euro cent per liter of petrol. It agreed that the plaintiffs successfully contested the correctness of claims about CO2<\/sub> compensation based on several scientific publications and climate reports from reputable bodies. At the very least, they succeeded in sowing doubts about the comparability of realized emissions and compensation measures and the measurement of the effects of these measures. According to Article 3 of the Dutch Environmental Advertisement Code, environmental claims must be demonstrably correct, which implies a heavy burden of proof for the advertiser.<\/p>\n

In the second decision issued to Shell on June 30, 2022, the ACC still agreed<\/a> with complainants that the term \u201ccompensation\u201d suggests an \u201cabsolute environmental claim.\u201d In their view, compensation refers to the \u201cundoing of damage caused.\u201d The substantiation of the claim was insufficient because \u201cShell has not shown that it is absolutely certain that full and lasting CO2<\/sub> compensation is guaranteed through the forest projects.\u201d<\/p>\n

The current court case against KLM addresses slightly different claims, as the contested statements now mostly refer to \u201climiting your emissions,\u201d and \u201ccompensating (part of) your flight.\u201d The plaintiffs, however, argue that even such claims cannot be meaningfully supported by any science, and certainly not to the extent that flying with KLM suddenly becomes a positive contribution towards a more \u201csustainable future\u201d or in any way \u201cresponsible\u201d in light of meeting the Paris Agreement goals.<\/p>\n

Early perspectives on the future of \u201cgreen\u201d advertising on CO2<\/sub> emission schemes and KLM<\/strong><\/p>\n

Fossielvrij NL<\/em> anticipates that its claims could have \u201cmajor consequences\u201d for other companies that \u201cclaim to nullify their climate damage with CO2<\/sub> compensation projects.\u201d Within the Netherlands, this new court case, as well as the ACC’s decisions on the credibility of companies\u2019 claims towards climate neutrality by 2030 or 2050, especially through CO2 <\/sub>compensation schemes, would allow for further complaints at both<\/em> the ACC and in courts against other advertisements that push similar claims. The decisions and the new case will also likely spur further debate about the promises of CO2<\/sub> neutrality made through CO2<\/sub> compensation schemes or how such schemes can be marketed as part of companies’ efforts to be or look \u201cgreen.\u201d An even larger question raised by plaintiffs\u2019 claims is whether companies can reasonably present any claims about their companies promoting \u201cresponsible or sustainable driving or flying based on carbon offsetting schemes\u201d when, ultimately, overall reductions and elimination of fossil fuel use will be necessary to effectively attain the goals of the Paris Agreement.<\/p>\n

The new \u201cgreenwashing advertisement\u201d court case FossielVrij NL v. KLM<\/em> is likely to represent an exciting, promising new frontier of climate litigation in Dutch courts. The case could lead to a binding court decision on greenwashing, rather than a non-binding decision of the ACC, which may be poorly implemented. At the same time, FossielVrij NL v. KLM<\/em> is likely to be just one of the legal developments placing pressure on KLM in the coming years: KLM is also identified by the organization Milieudefensie<\/em> as one of 29 possible targets for further litigation<\/a> based on the landmark judgment of the Hague District Court in Milieudefensie v. Shell<\/em><\/a> in May 2021 \u2013 a rights-based climate case against the carbon major Shell. In an update on their litigation strategy, Milieudefensie<\/em> announced last week that it will be reviewing<\/a> the performance and climate plans of these companies and financial institutions and begin with preliminary legal investigations but will likely not start any litigation soon.<\/p>\n

It can thus be expected that in the coming years, the Netherlands will prove fertile ground for further ground-breaking climate litigation along different lines of legal reasoning. The KLM greenwashing case will be amongst those with a potentially significant impact on litigation globally.<\/p>\n

 <\/p>\n

* This blog post is part of the\u00a0Sabin Center\u2019s Peer Review Network of Global Climate Litigation<\/a>\u00a0and was edited by\u00a0Maria Antonia Tigre<\/a>. Marlies Hesselman is a lecturer in Public International Law at the University of Groningen in the Netherlands, and is the national rapporteur for the Netherlands and the UN Special Procedures in the Peer Review Network.<\/p>\n","protected":false},"excerpt":{"rendered":"

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