Claim was launched in 2021 to seek compensation after the project was scuttled by U.S. President Joe Biden
Keystone XL was a proposed crude oil transportation pipeline which would have carried oil from the oilsands of northern Alberta to the major U.S. crude storage hub at Cushing, Okla. and then on to Gulf Coast refineries.
But the project became a lightning rod for controversy and environmental and Indigenous activism, in addition to being subject to government flip-flops.
TC Energy first proposed the Keystone XL project under the Obama administration, which ultimately rejected it on environmental grounds. U.S. President Donald Trump revived the project, but Biden then killed it again by revoking the pipeline’s permit on his first day as president in 2021.
In its claim, TC Energy said it was due more than US$15 billion in damages as a result of the years it spent navigating legal and regulatory challenges before the Biden administration officially spiked the project by revoking a key permit.
But the International Centre for Settlement of Investment Disputes (ICSID) tribunal sided with the U.S. government in the matter last Friday by refusing to hear TC Energy’s case.
The tribunal said the legacy provisions tied to the old NAFTA only permit claims based on breaches that allegedly occurred while NAFTA was in force.
Biden revoked Keystone XL’s permit a year after NAFTA was terminated and the new US-Mexico-Canada Agreement (USMCA) took its place.
In an email Tuesday, TC Energy expressed its dismay over the tribunal’s decision.
“We are both disappointed and frustrated with the Tribunal’s decision to deny our right to bring a legacy NAFTA claim,” said Patrick Keys, executive vice-president and general counsel for TC Energy.
“This ruling does not align with our expectations and views of the plain interpretation of the protections NAFTA and the USMCA were designed to offer. TC Energy was treated unfairly and inequitably in the revocation of the permit, which was driven by political considerations.”
The tribunal’s decision was hailed by environmental activists, who interpreted it as evidence that fossil fuel companies will not be able to successfully sue governments for policy changes made for the good of the environment or to mitigate the effects of climate change.
“This is an important precedent, because governments need to be able to take action to protect people (from climate change) and corporations shouldn’t be able to sue them for it,” said Keith Stewart, senior energy strategist at Greenpeace Canada.
“The threat of these types of lawsuits has actually been giving governments cold feet about taking bold action (on climate) and I think we should recognize this decision as saying, ‘full speed ahead.”‘
The government of Alberta also has a complaint pending before the ICSID panel.
In 2020, the Alberta government agreed to invest about $1.5 billion in equity in the Keystone XL project in an effort to get the stalled pipeline project moving.