By: Lizzy Miller*

In recent years, the discourse surrounding carbon offsets has gained significant traction as companies strive to advertise their commitment to environmental sustainability. The growing popularity of carbon offset initiatives has also brought forth concerns about “greenwashing,” or misrepresentation of a company’s sustainability or environmentally friendly policies.^[1] Because carbon offset programs may be “worthless” in recapturing carbon,^[2] customers of companies using carbon offsets could have valid claims for greenwashing under consumer protection laws.^[3]

As consumers become increasingly discerning about the environmental impact of their choices,^[4] courts play a crucial role in ensuring that companies uphold the standards of transparency and accuracy.^[5] Cases alleging greenwashing are on the rise,^[6] brought either by the Federal Trade Commission (FTC) or through a class action.^[7] Most greenwashing cases survive a motion to dismiss, a motion brought by the defense to throw out the case against them.^[8] This generally means that courts find they are the correct authority to hear the claim, they can potentially provide a remedy to the plaintiff, and the plaintiff has stated a reasonable claim under the relevant law.^[9] However, plaintiffs in class-action suits may face difficulty in certifying their class due to the varying interests of consumers.^[10] Ongoing suits, such as the Mayanna Berrin lawsuit,^[11] provide insight into consumers’ strategies for pursuing relief.

Plaintiff Mayanna Berrin sued Delta Airlines in May of 2023, alleging that the company’s claim of being “carbon-neutral” is mere greenwashing due to the (contestably) negligible effect of carbon offsetting.^[12] She is suing under California’s Consumers Legal Remedies Act, the False Advertising Law, and the Unfair Competition Law to argue Delta’s claims of carbon neutrality are misrepresentations that caused her and other consumers to overpay for flights.^[13] This argument rests on the effectiveness of Delta’s carbon neutrality policy. In the pursuit of environmental responsibility, companies often turn to carbon offsets as a means of compensating for their carbon footprint.^[14] Carbon offsets involve investing in projects that reduce or capture greenhouse gas emissions equivalent to the company’s own emissions. Most notably, carbon offsets are not a substitute for genuine efforts to reduce emissions at the source.^[15]

One study found that Verra, a company that approves three-fourths of all voluntary carbon offsets, should not have approved 94% of the credits.^[16] When focusing on planting trees as a method to offset carbon,^[17] “phantom credits” are approved through various means— overstating the threat to forests, relying on carbon offset by keeping those forests standing, counting planted trees multiple times, and other means of inflation.^[18] Even when numbers are accurately reflected, reforesting itself is a questionable practice; deforestation rates remain high,^[19] forests store less carbon while drying out from global heating,^[20] younger trees store much less carbon than mature trees,^[21] and the carbon stored can be released if the trees are damaged through logging or wildfires.^[22] Following the United Nations Secretary-General’s Global Climate Action Summit goal to achieve climate neutrality, emissions need to be reduced by 45% by 2030.^[23] One climate specialist likens carbon offsetting to “putting a Band-Aid on something when you need a tourniquet.”^[24]

Regarding Mayanna Berrin, a Delta spokesperson stated that the company “has fully transitioned its focus away from carbon offsets toward decarbonization” in the past eighteen months.^[25] Such statements prove the importance of discovery in cases where companies may not be transparent about their practices.^[26] Even if they are moving away from carbon offsets, companies must be diligent in ensuring that their environmental claims are accurate and substantiated to avoid violating consumer protection laws.^[27]

Even as large companies advertise environmentally-friendly policies to drive sales, they likely contribute to the consumption of natural resources and increased emissions.^[28] Consumers should be aware of and utilize anti-greenwashing legislation to protect their interests in corporate transparency and environmentally friendly production.^[29]

*Lizzy Miller is a Managing Editor on JLI Vol. 42.

[1] Shawn Collins & Lisa M. Northrup, The Legal Risks of Greenwashing are Real, Bloomberg Law (July 25, 2022), https://news.bloomberglaw.com/environment-and-energy/the-legal-risks-of-greenwashing-are-real.

[2] Fiona Harvey, Carbon Offsets Are Flawed but We Are now in a Climate Emergency, Guardian (Jan. 18, 2023), https://www.theguardian.com/environment/2023/jan/18/carbon-markets-credits-offsets-deforestation-aoe; Patrick Greenfield, Revealed: More than 90% of Rainforest Carbon Offsets by Bigger Certifier are Worthless, Analysis Shows, Guardian (Jan. 18, 2023), https://www.theguardian.com/environment/2023/jan/18/revealed-forest-carbon-offsets-biggest-provider-worthless-verra-aoe.

[3] Irina Ivanova, Delta Faces Lawsuit Alleging its “Carbon-Neutral” Claim is Greenwashing, CBS News (May 31, 2023), https://www.cbsnews.com/news/delta-lawsuit-cabon-neutral-greenwashing-carbon-offsets/ (stating customers paid more for flights which were advertised to be “carbon-neutral.”).

[4] Id.

[5] See Collins & Northrup, supra note 1 (describing various court decisions on greenwashing).

[6] Dharna Noor, Why 2024 Will be a Crucial Year for Climate Litigation, Guardian (Jan. 22, 2024), https://www.theguardian.com/us-news/2024/jan/22/climate-change-cases-2024-lawsuits.

[7] Jessica Davidson, Nina R. Rose, & Robert A. Silverstein, Reducing the Risk of ‘Greenwashing’ Litigation and Defending Actions that Are Filed, Harv. L. Sch. F. on Corp. Governance (Oct. 10, 2023), https://corpgov.law.harvard.edu/2023/10/10/reducing-the-risk-of-greenwashing-litigation-and-defending-actions-that-are-filed/.

[8] Id.; Jacob H. Hupart, Douglas P. Baumstein, Joshua Briones, & Will G. McKitterick, Greenwashing Class Action Litigation: An Emerging Risk for Companies’ Claims of Sustainability, Nat’l L. Rev. (Aug. 4, 2023), https://www.natlawreview.com/article/greenwashing-class-action-litigation-emerging-risk-companies-claims-sustainability.

[9] Hupart, Baumstain, Briones, & McKitterick, supra note 8.

[10] See Davidson, Rose, & Silverstein, supra note 7; Hupart, Baumstain, Briones, & McKitterick, supra note 8.

[11] Mayanna Berrin v. Delta Airlines, No. 2:23-cv-04150 (C.D. Cal. filed May 30, 2023).

[12] Id.

[13] Byron J. McLain & Cole K. Waldhauser, Carbon Neutrality Suit Against Delta Airlines Signals the Arrival Time of Greenwashing” Litigation, Nat’l L. Rev. (June 15, 2023), https://www.natlawreview.com/article/carbon-neutrality-suit-against-delta-airlines-signals-arrival-time-greenwashing.

[14] Greenfield, supra note 2.

[15] Natacha Larnaud, Does Planting a Tree Really Offset Your Carbon Footprint?, CBS News (Jan. 28, 2020), https://www.cbsnews.com/news/planting-a-tree-offset-your-carbon-footprint/.

[16] Greenfield, supra note 2 (describing how Verra certifies carbon credits for companies, noting their claims of forest loss were originally “overstated by 400%,” resulting in falsely inflated claims of carbon offsetting through reforestation).

[17] Lilli Kaarakka, Julia Rothey, & Laura E. Dee, Managing Forests for Carbon-Status of the Forest Carbon Offset Markets in the United States, PLOS CLIMATE (July 6, 2023),https://journals.plos.org/climate/article?id=10.1371/journal.pclm.0000158 (“In the United States, forest-based offsets represent 92% of offset credits issued in the Cap-and-Trade Program operated by the state of California.”).

[18] Id.

[19] Harvey, supra note 2.

[20] Id.

[21] Larnaud, supra note 15.

[22] Greenfield, supra note 2; Larnaud, supra note 15; Ivanova, supra note 3.

[23] UN Environment Programme, Emissions Gap Report 2019, at 14 (Anne Olhoff & John Christensen eds., 2019); Larnaud, supra note 15.

[24] Larnaud, supra note 15.

[25] Ivanova, supra note 3.

[26] Noor, supra note 6 (noting that discovery is the “second most important part” in climate deception cases against fossil fuel companies for their statements regarding climate change).

[27] See Collins & Northrup, supra note 1 (describing how courts have dismissed companies’ defenses based on puffery); Hupart, Baumstein, Briones, & McKitterick, supra note 8.

[28] Lauren Pollock, How Capitalism is a Driving Force of Climate Change, PIT J. (https://pitjournal.unc.edu/2022/12/24/how-capitalism-is-a-driving-force-of-climate-change/ (last accessed Jan. 30, 2024).

[29] Hupart, Baumstain, Briones, & McKitterick, supra note 8 (noting companies’ behavior is influenced by consumer trends and implying accountability may be possible).