TransCanada starts legal actions after Keystone XL permit denial

TransCanada Corp. said it will submit a claim that US President Barack Obama’s Nov. 6 denial of the company’s Keystone XL crude oil pipeline’s cross-border permit application was arbitrary and unjustified under Section 6 of the North American Free Trade Agreement.

The president’s decision also exceeded his power under the US Constitution, the Calgary-based transmission company said in a lawsuit filed on Jan. 6 in the US District Court for Southern Texas’s Houston Division.

The actions challenge the Obama administration’s ruling that approving the project’s cross-border permit would not be in the US national interest more than 7 years after the company originally submitted its application (OGJ Online, Nov. 6, 2015). Project supporters said the president made his move to resolve a major outstanding issue just prior to international climate change talks in Paris.

TransCanada said the US Department of State acknowledged that the decision was not based on the project’s merits, but was “a symbolic gesture based on speculation about the perceptions of the international community regarding the administration's leadership on climate change and the president's assertion of unprecedented, independent powers.”

It said that Obama asserted unilateral power to prevent development and operation of a major US oil pipeline extending abroad from established domestic systems when the US Constitution expressly commits regulation of domestic and international regulation of commerce to Congress, which acted to facilitate construction of such facilities and passed legislation authorizing construction and operation of Keystone XL across the US-Canadian border.

Action called unprecedented

“No previous president has ever prohibited the development of any major oil pipeline undertaking significant domestic commerce based on an assertion of unilateral power,” TransCanada said in its lawsuit.

“No previous president has ever asserted or exercised the unilateral authority to prohibit the construction of cross-border facilities supporting international commerce based on any objection to the nature of the commerce undertaken by the facility, his need to enhance his negotiating powers with foreign states, or any other basis not directly related to the particular cross-border considerations presented by the facility at issue,” it continued.

TransCanada said that through its NAFTA claim, it will seek to recover more than $15 billion in costs and damages that it has suffered as a result of the Obama administration's alleged breach of its NAFTA obligations.

“The denial substantially deprived the disputing investors of the value of billions of dollars of investment in the project,” it said in the NAFTA filing. “When it signed NAFTA, the US government committed to provide all Canadian investors with core investment protections, including national treatment (Article 1102), most-favored-nation treatment (Article 1103), treatment in accordance with international law (Article 1105), and protection against uncompensated expropriations (Article 1110).

“The US government failed to meet those commitments. NAFTA entitles the disputing investors to full compensation for these failures,” TransCanada said.

The company also said it is reviewing the $3.1 billion it invested in the project, and expects to write down $2.5-2.9 billion after taxes in its 2015 fourth quarter financial results. The noncash charge will reflect anticipated asset recoveries as well as the recognition of certain income tax benefits and will not affect TransCanada’s Single A-grade credit ratings. Additional tax benefits of as much as $400 million may be realized in the future under certain circumstances, it indicated.

Contact Nick Snow at [email protected].