Resilient LLP (formerly DeMarco Allan LLP)
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DT Vollmer

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Dutch Court Rules KLM Misled Customers and Engaged in Greenwashing

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The District Court of Amsterdam (the Court) recently released its decision on alleged ‘greenwashing’ claims against Dutch airline KLM (the Decision). The Court found that 15 of the 19 impugned KLM advertising statements and environmental claims were unlawful and misleading to consumers. Specifically, the Court held that it was misleading and unlawful for KLM to make advertising statements suggesting that (i) flying can be or become sustainable, and (ii) the purchase of or contribution to a “compensation” product actually reduces, absorbs or compensates for part of the climate impact of flying. This bulletin briefly summarizes the background of the case and important aspects and implications of the Decision. Background. Dutch environmental groups Fossielvrij Netherlands (Fossil Free Netherlands) and Reclame Fossielvrij (Fossil Free Advertising) (together, FF), supported by ClientEarth, an international environmental advocacy organization, delivered a letter to KLM in May 2022 stating their intention to file a legal claim if their demands, including calling for a ban on all fossil fuel advertising in the EU, were not met. FF and ClientEarth indicated that they were targeting KLM’s ‘Fly Responsibly’ ad campaign and the airline’s offers for customers to purchase carbon offsets to fund reforestation projects or the purchase of biofuels to offset the emissions from a customer’s flight. FF filed a ‘greenwashing’ lawsuit against KLM in July 2022, alleging that the airline’s climate-related advertising misled the public and challenging KLM’s carbon offsetting marketing, which purported to allow customers to reduce the carbon impacts of their flights by supporting reforestation projects or the purchase of small quantities of biofuels and Sustainable Aviation Fuel (SAF). Court’s Findings and Decision. The Court considered 19 statements made by KLM in connection with its ‘Fly Responsibly’ and ‘CO2ZERO’ marketing campaigns and ‘KLM Real Deal Days’ promotion campaign under the Dutch Unfair Commercial Practices Act and…

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SCC in Yatar Clarifies Availability of Judicial Review in Parallel with Statutory Rights of Appeal

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The Supreme Court of Canada (SCC) last week in Yatar v. TD Insurance Meloche Monnex (Yatar) clarified the right to seek judicial review of administrative decisions in tandem with pursuing statutory rights of appeal. The SCC also affirmed its earlier decision in Canada (Minister of Citizenship and Immigration) v. Vavilov (Vavilov), which held that a right of appeal does not preclude an individual from seeking judicial review for questions not dealt with in the appeal. In Yatar, the SCC held that, where there is a statutory right of appeal limited to questions of law, judicial review is available for questions of fact or mixed fact and law. In so doing, the SCC clarified that parallel statutory appeals and applications for judicial review are permissible. This bulletin briefly summarizes the background of the case and important aspects and implications of the SCC’s decision. Background. The appellant (Yatar) was injured in a car accident and denied insurance benefits. Following mediation, Yatar contested the denial of insurance benefits, but the Ontario Licence Appeal Tribunal (LAT) dismissed her application as being time-barred. Yatar’s right of appeal from the LAT decision was restricted solely to questions of law pursuant to the Licence Appeal Tribunal Act, 1999. Yatar consequently pursued an appeal on questions of law, and simultaneously sought judicial review on questions of fact or mixed fact and law. The Divisional Court dismissed Yatar’s appeal as well as her application for judicial review. The Ontario Court of Appeal agreed with the decision of the Divisional Court, holding that it would only be in “rare cases” that the remedy of judicial review would be exercised, given the available statutory scheme for the resolution of such disputes. Decision. In a unanimous decision, the SCC held that it was an error for the courts below to find that,…

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Watch Lisa DeMarco at North American Climate Summit 2023

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Watch Resilient LLP’s Lisa DeMarco discuss important developments and insights on voluntary carbon markets during her interview on SmartMarkets™ as part of IETA’s 2023 North American Climate Summit (NACS) last September at Climate Week New York City. The interview explores the role of carbon markets to support corporate climate action and the need for increased (i) integrity, (ii) excellence and transparency, and (iii) ambition, and highlights the important work of the Integrity Council for Voluntary Carbon Markets and the Voluntary Carbon Markets Integrity Initiative to support and provide confidence to corporates and others to credibly use emission units, emission reduction units and removals towards emissions reduction targets. SmartMarkets™ has also compiled a selection of its NACS interviews (including Lisa’s interview) into a special episode (available here) covering how carbon markets support corporate strategy for climate action; how the challenges to operationalize the Article 6 markets, as well as the challenges to the reputation and growth of the voluntary carbon markets, affect corporate strategies; and what were the most important ideas being discussed at NACS.

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CSSB Publishes Exposure Drafts for Sustainability and Climate Disclosure

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UPDATE: The Canadian Securities Administrators (CSA) announced on March 13, 2024 that it anticipates seeking comment on a revised rule setting out climate-related disclosure requirements once the CSSB consultation is complete and its standards are finalized. The CSSB standards must be incorporated into a CSA rule in order to become mandatory under Canadian securities legislation. — The Canadian Sustainability Standards Board (CSSB) today announced the release of exposure drafts for the proposed Canadian Sustainability Disclosure Standards (CSDS), which include: CSDS 1, General Requirements for Disclosure of Sustainability-related Financial Information (CSDS 1); and CSDS 2, Climate-related Disclosures (CSDS 2). The International Sustainability Standards Board (ISSB) published IFRS S1 and IFRS S2 in June 2023. Those disclose standards served as the baseline for the development of CSDS 1 and CSDS 2, respectively. The CSSB also published a consultation paper on criteria for modifying the IFRS Sustainability Disclosure Standards when formulating Canadian standards based on them. The CSSB has proposed to make the new standards effective as of annual reporting periods beginning on or after January 1, 2025. Comments on the proposed standards are due June 10, 2024. CSSB will host a webinar on the exposure drafts on April 10, 2024. This bulletin provides a brief summary of the objectives and key conceptual foundations / core content of CSDS 1 and CSDS 2, as well as the Canadian changes as compared to the ISSB standards. CSDS 1: General Requirements for Disclosure of Sustainability-related Financial Information Objective. The objective of CSDS 1 is to require an entity to disclose information about its sustainability-related risks and opportunities that is useful to primary users of general-purpose financial reports in making decisions relating to providing resources to the entity. An entity would be required to disclose information about all sustainability-related risks and opportunities that could reasonably be expected to affect the entity’s cash flows, its…

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SEC Adopts Climate-Related Disclosure Rules

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The U.S. Securities and Exchange Commission (SEC) today adopted final rules for the “Enhancement and Standardization of Climate-Related Disclosures for Investors” (the Rules). The Rules require registrants to disclose climate-related risks that have had, or are reasonably likely to have, a material impact on business strategy, results of operations, or financial condition, together with their associated actual or potential material impacts. The Rules do not require reporting on Scope 3 emissions or greenhouse gas (GHG) emissions originating in a registrant’s value chains or outside of its direct operations (as was proposed in earlier versions – see our earlier bulletin here). The Rules notably require more disclosure from registrants on capitalized costs, expenditures expensed, and losses related to material use of carbon credits. Disclosure requirements will be phased-in between 2025-2033, with compliance dates dependent on the type of registrant. The SEC also published a fact sheet alongside today’s release. This bulletin briefly summarizes key details of the Rules. Content of the disclosures. The Rules will require a registrant to disclose, among other things: Strategy. The Rules require disclosure of the following strategy-related climate risks and impacts: actual and potential material impacts of any identified climate-related risks on the registrant’s strategy, business model, and outlook; if, as part of its strategy, a registrant has undertaken activities to mitigate or adapt to a material climate-related risk or has adopted a transition plan to manage material risks, a quantitative and qualitative description of material expenditures incurred and material impacts on financial estimates and assumptions that directly result from such mitigation or adaptation activities; and specified disclosures regarding a registrant’s activities, if any, to mitigate or adapt to a material climate-related risk including the use, if any, of transition plans, scenario analysis, or internal carbon prices. Risk management. The Rules require disclosure of a registrant’s climate-related risk management, including: any oversight…

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