TC Energy’s US$15B Keystone XL claim thrown out by trade tribunal

TC Energy Corp.’s ill-fated Keystone XL pipeline has suffered a awesome rustle aft a waste and acquisition tribunal determination that tossed retired its declare to US$15 cardinal successful damages.

The Calgary-based institution launched nan declare successful 2021 to activity compensation aft its projected Keystone XL pipeline task was scuttled by U.S. President Joe Biden.

The declare was made nether nan bequest rules tied to nan aged North American Free Trade Agreement, aliases NAFTA, because of what TC Energy said was nan U.S. government’s breach of its free waste and acquisition obligations.

Keystone XL was a projected crude lipid proscription pipeline which would person carried lipid from nan oilsands of northern Alberta to nan awesome U.S. crude retention hub astatine Cushing, Okla. and past connected to Gulf Coast refineries.

But nan task became a lightning rod for contention and biology and Indigenous activism, successful summation to being taxable to authorities flip-flops.

TC Energy first projected nan Keystone XL task nether nan Obama administration, which yet rejected it connected biology grounds. U.S. President Donald Trump revived nan project, but Biden past killed it again by revoking nan pipeline’s licence connected his first time arsenic president successful 2021.

In its claim, TC Energy said it was owed much than US$15 cardinal successful damages arsenic a consequence of nan years it spent navigating ineligible and regulatory challenges earlier nan Biden management officially spiked nan task by revoking a cardinal permit.

But nan International Centre for Settlement of Investment Disputes (ICSID) tribunal sided pinch nan U.S. authorities successful nan matter past Friday by refusing to perceive TC Energy’s case.

The tribunal said nan bequest provisions tied to nan aged NAFTA only licence claims based connected breaches that allegedly occurred while NAFTA was successful force.

Biden revoked Keystone XL’s licence a twelvemonth aft NAFTA was terminated and nan caller US-Mexico-Canada Agreement (USMCA) took its place.

In an email Tuesday, TC Energy expressed its dismay complete nan tribunal’s decision.

“We are some disappointed and disappointment pinch nan Tribunal’s determination to contradict our correct to bring a bequest NAFTA claim,” said Patrick Keys, executive vice-president and wide counsel for TC Energy.

“This ruling does not align pinch our expectations and views of nan plain mentation of nan protections NAFTA and nan USMCA were designed to offer. TC Energy was treated unfairly and inequitably successful nan revocation of nan permit, which was driven by governmental considerations.”

The tribunal’s determination was hailed by biology activists, who interpreted it arsenic grounds that fossil substance companies will not beryllium capable to successfully writer governments for argumentation changes made for nan bully of nan situation aliases to mitigate nan effects of ambiance change.

“This is an important precedent, because governments request to beryllium capable to return action to protect group (from ambiance change) and corporations shouldn’t beryllium capable to writer them for it,” said Keith Stewart, elder power strategist astatine Greenpeace Canada.

“The threat of these types of lawsuits has really been giving governments acold feet astir taking bold action (on climate) and I deliberation we should admit this determination arsenic saying, ‘full velocity ahead.'”

The authorities of Alberta also has a title pending earlier nan ICSID panel.

In 2020, the Alberta government agreed to put astir $1.5 cardinal successful equity successful nan Keystone XL task successful an effort to get nan stalled pipeline task moving.