Lawsuit against Delta Air Lines for “carbon neutral” claims

Delta’s carbon neutral claims relied heavily on carbon offsets

In February 2020, Delta Air Lines announced a US$1 billion commitment “to mitigate all emission from March 2020 forward”. Needless to say, Delta’s commitment involved carbon offsets generated from “forestry, wetland restoration, grassland conservation, marine and soil capture, and other negative emissions technologies”.

On 30 May 2023, Mayanna Berrin filed a lawsuit in California on behalf of herself and other fliers who bought Delta tickets because the company claimed to have committed to being the “first carbon neutral airline globally”.

The lawsuit accuses Delta of “grossly misrepresenting the total environmental impact of its business operations in its advertisements, corporate announcements, and promotional materials and thereby attaining underserved market share and extracting higher prices from consumers.”

Krikor Kouyoumdjian is a partner with the legal firm Haderlein and Kouyoumdjian LLP which is bringing the case. He told The Guardian that,

“The language carbon neutral is so provocative. When companies say: ‘Don’t worry about our emissions, they’re sorted,’ they are communicating complacency. They are letting consumers pay to feel better and not have to worry about the impact of their consumption. But that is counterfactual to reality. It is not something that you can pay away.

“When I hear ‘carbon neutral’, I think you’re not doing anything wrong, you’re not hurting the environment in any way. It’s like you don’t exist. That’s what the words mean to any rational person: that we can participate in your business without any guilt. Most of us who care about the environment walk around with this giant cloud of guilt that our very existence hurts the environment in a bunch of ways.”

The case argues that Delta has profited from a misleading environmental claims.

At the launch of Delta’s climate commitment in 2020, Ed Bastian, Delta’s CEO, said that,

“I know you know how important your travel is to all of us. The power of bringing the world together, making the world a better place, making the world a smaller place, Delta does an amazing job at that. Today, we have made an announcement that starting March 1st we’re going to make certain that our planet is also better when you travel on Delta.”

On its “Offset Your Flight” page on its website, Delta claimed that the projects that it buys offsets from “Protect forests and support local communities”.

A quick look at three of the projects that Delta bought carbon offsets from reveals this to be a very dubious claim:

1. Cordillera Azul National Park REDD Project, Peru

The Cordillera Azul National Park REDD Project is one of the projects that Delta has bought offsets from. This REDD project was set up without the free, prior and informed consent of the Indigenous Peoples living in and around the National Park. The National Park was also established without the consent of the Indigenous People living there.

In March 2023, Associated Press reported that,

Experts say the Cordillera Azul project was flawed from the beginning, with far too many carbon credits generated and exaggerated benefits that allowed the nonprofit running the park for the Peruvian government to make more money — even as the tree canopy shrank.

Also in March 2023, the Kichwa Indigenous community won an important victory, when the Mixed Court of Bellavista of the Superior Court of Justice of San Martín ordered the local authorities to initiate a titling process of the territory traditionally used by the Kichwa community.

That ruling was as a result of a lawsuit filed by the Kichwa in 2020 against the Peruvian government and the management of the Cordillera Azul National Park.

The community has so far not benefited from the sale of carbon credits from the national park. As an October 2022 report published by Friends of the Earth Netherlands notes, it is very difficult to argue that this REDD project established on an existing National Park is actually additional:

This project illustrates one of the underlying contradictions when a carbon offset project is established to fund an existing protected area: most such areas will have a prior history of donor support, that will typically have claimed significant success as a result of their efforts to conserve the area. However, the additionality requirements of a carbon project are exactly the opposite; it has to be demonstrated that the area remains seriously threatened, despite whatever efforts had preceded the carbon project. Various ‘stories’ are created to resolve these mutually incompatible narratives.

2. The Portel REDD projects, Brazil

Four REDD projects have been established in the municipality of Portel in the state of Pará. In total the four projects cover an area of more than 700,000 hectares. Delta is among the Big Polluters that have bought carbon credits from these projects.

A recent report by the World Rainforest Movement highlights a series of problems with these projects.

An American businessman called Michael Greene is a project proponent of all four projects. In 2011, Greene appeared in an excellent Dutch TV documentary. He sold land in Brazil to the TV programme, Keuringsdienst van Waarde, that highlighted the problems of carbon offsets by attempting to offset the emissions associated with their documentary.

Greene was also involved in a fraudulent investment scam called Global Forestry Investments. Greene appears in several GFI promotional company videos. The company hired a series of boiler room companies to promote investment in industrial tree plantations in Brazil.

In May 2022, a jury at Southwark Crown Court in London convicted Andrew Skeene and Omari Bowers, the directors of Global Forestry Investments, of scamming investors out of £37 million.

World Rainforest Movement notes that the counterfactual baseline of what would have happened in the absence of these REDD project is based on a conflict of interest: “the worse it is for forests, the better it is for investors.”

Project documents anticipate an increase of more than 50% in deforestation over the 30 to 40 year project periods. Deforestation is taking place along roads to the south of the project areas.

According to project documents, deforestation will spread from these roads north to the project areas, as well as along the rivers where people live.

But local community members asked WRM, “Why haven’t the REDD projects been designed within the large area to the south of the project areas?”

There are land conflicts within the project areas, and villagers have been threatened by project employees.

3. Florestal Santa Maria REDD project, Brazil

Delta has also bought carbon offsets from the Florestal Santa Maria REDD project in Brazil. This is a logging project, disguised as a “sustainable forest management” project.

A a Thomson Reuters Foundation investigation found that “While the area was still conserved, a lot of the promises that were made to the community were broken.”

A proposal to build a technical school never started. Neither did a plan to restore degraded areas of forest.

One of the reasons that a logging project could claim to be preserving the forest was that the logging operations were certified under the Forest Stewardship Council system as well managed.

Between March 2013 and March 2017 the project was certified under the FSC system. But in 2017 the certificate was terminated. Among other things, the project had failed to carry out monitoring to show that the logging that took place was legal. Even when the project was FSC certified, that was based on hoped for improvements, rather than actually meeting FSC’s standards.

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