No Fly Zone: Delta Is Getting Hit With A Misrepresentation Suit

Delta Airlines is a big player in the American airline industry. They pride themselves on being more than the company you use when you want to head to Miami for a break from the day-to-day -- they also market themselves as an environmentally minded airline. Bit of a tension between that end and the very large amounts of fuel they burn getting passengers from A to B. So much so that someone is willing to take them to court over it.

Delta Air Lines has been falsely touting itself as the "first carbon neutral" airline, one flier said in a proposed class action filed Tuesday that argues that scientists and regulators have identified Delta as among companies that've "grossly misstated" the actual carbon reduction that accompanies their investment in the carbon offset market.

Delta customer Mayanna Berrin said Delta has made representations suggesting that, since March 2020, it hasn't been responsible for releasing any net additional carbon into the atmosphere. The airline has pointed to its investments in the carbon offset market -- a group of companies and non-governmental organizations that invest in green projects, like renewable energies, per the complaint in California federal court.

But simply purchasing these carbon offsets cannot actually make a company carbon-neutral, Berrin said. Delta has "grossly" misrepresented the total environmental impact of its business operations, and consumers wouldn't have purchased flights -- or would've only done so at substantially lower prices -- had they known the truth, she said.

I think that a major threshold question is why a company buying carbon offsets doesn't qualify it for neutrality.

According to the complaint, Delta has promoted itself as "carbon-neutral" in advertisements, press releases, LinkedIn posts, podcasts and even on its in-flight napkins. Delta says that's because of its investments in the voluntary carbon offset market, which Berrin described as "a loose arrangement of companies and NGOs" that facilitate investment in sustainability efforts in exchange for so-called "carbon offsets."

Those offsets are credits that purport to verify the amount of carbon that was not released into the atmosphere thanks to a company's investments, Berrin said. That means that Delta's claims of carbon neutrality hinge on an underlying set of representations: "that since March 2020 defendant's investments in the voluntary carbon offset market have entirely offset the CO2 emissions from defendant's global airline operations, such that defendant has not been responsible for releasing additional carbon into the atmosphere during that time."

Facially, Delta's representations make sense. Sure Delta may dump X ton(nes) of carbon in the atmosphere, but if they invest in green tech or reforesting efforts and the like that would absorb carbon at a rate that balances out the emissions from flights, what's the damage? For Berrin to get somewhere with her claim, she'd have to make inroads about how the purported carbon offsetting is inaccurate or misleading.

Berrin said she's discovered that those representations are "manifestly and provably false."

Oh. Let's get to it then.

"Foundational issues with the voluntary carbon offset market [mean] the purchase of said offsets cannot make a company 'carbon neutral,'" she said.

Those issues include, among others, inaccurate accounting and "non-immediate speculative emissions reductions that will, at best, occur over decades, despite crediting purchasers with the sum of those projected offsets," Berrin said.

"These issues are specific to offsets purchased by and relied upon by defendant," she said.

How strong her claim would be depends on what the "among other" things are, but it's an at least colorable argument that if you run the numbers and find out that due to investments gone awry or overzealous estimates about how good of a carbon sink a thing would be that Delta emitted more than the net zero amount emblazoned on their napkins. If that's the case, it would be nice to know if any amount over net neutral means pockets get lined or if there has to be some substantial amount that gets damages rolling in.

Even if Berrin is right in part, Delta may have done some clever goal post shifting in its favor:

"Delta is a vigorous advocate for more sustainable aviation, adopting industry-leading climate goals as we work towards achieving net-zero carbon emissions by 2050," the spokesperson said. "Delta committed to carbon neutrality in March 2020, and since March 31, 2022, has fully transitioned its focus away from carbon offsets toward decarbonization of our operations, focusing our efforts on investing in sustainable aviation fuel, renewing our fleet for more fuel-efficient aircraft and implementing operational efficiencies."

This point of contention may come down to more a subjective evaluation like did consumers know (or care) about what Delta meant by its commitment to the environment at the time of purchase. Because that could have been a compelling factor to buy the ticket. Or they could be selling flights because customers can't shake the feeling that if an international Spirit flight goes wrong they'll have to either push start the plane or row to safety using a set of oars found under their seats because the airline decided to sell the float vests as a cost cutting measure. That last part is a joke. I hope.

Delta Accused Of Falsely Claiming To Be Carbon-Neutral [Law360]

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord(TM) in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.