TransCanada Corp. plans to launch a North American free-trade agreement claim seeking more than $15-billion (U.S.) in damages in response to the U.S. government's decision to deny a permit for the controversial Keystone XL pipeline.
Adding to the likely test of U.S.-Canada relations, TransCanada also said Wednesday it has launched a separate lawsuit in the U.S. Federal Court in Houston asserting that U.S. President Barack Obama's decision to deny construction of the $8-billion project exceeded his power under the U.S. Constitution.
TransCanada also said it expects to take a writedown of $2.5-billion (Canadian) to $2.9-billion after tax in the fourth quarter related to the Keystone XL permit denial.
After years of delays, the Obama administration quashed the project last November. The Calgary-based pipeline company says the United States has never before denied a cross-border oil pipeline from Canada, and the rejection of the project designed to transport vast quantities of Canadian oil sands and some Bakken crude to Gulf Coast refineries "was arbitrary and unjustified."
TransCanada's announcement comes as Mr. Obama is due to host Prime Minister Justin Trudeau at a state dinner in Washington in March. At the same time, Washington and Ottawa are working with the Mexican government to forge a North American energy and climate agreement that would move the three countries closer to a continental market.
In rejecting the proposal last November, Obama called crude from Alberta's oil sands "dirtier" but acknowledged that debate over the pipeline has played an "overinflated role" in his country's political discourse.
"This pipeline would neither be a silver bullet for the economy, as was promised by some, nor the express lane to climate disaster proclaimed by others," the President said, before concluding that the project wouldn't significantly help his country's economy, lower gasoline prices or increase energy security.
In its notice to claim to arbitration under Chapter 11 of NAFTA, TransCanada's lawyers argue environmental activists turned opposition to Keystone XL into a litmus test for politicians to prove their environmental credentials. "The activists' strategy succeeded."
On Wednesday, TransCanada said in a news release that the $15-billion (U.S.) claim it will make through its NAFTA action represents the initial estimated loss of value. "TransCanada has invested billions of dollars in assets that have now been rendered useless for the intended purpose, specifically the transportation of Canadian and American oil."
The midstream energy firm said it had every reason to expect its application would get a green light, as the application met the same criteria the U.S. State Department applied when approving applications to construct other, similar cross-border pipelines.
"The U.S. State Department acknowledged the denial was not based on the merits of the project. Rather, it 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," TransCanada said.
The company noted that the U.S. has never before lost a NAFTA claim, however, "we have undertaken a careful evaluation of the administration's action as it relates to NAFTA and believe there has been a clear violation of NAFTA in these circumstances."
Toronto trade lawyer Lawrence Herman said these types of lawsuits "are all long shots," but TransCanada appears to have a solid case in arguing that it was unfairly treated and that the decision was politically motivated.
"The argument is that they were not given fair and equitable treatment as required under the NAFTA," he said.
"I've thought for some time that that this was a politicized issue, and there are good arguments that decisions affecting Keystone were based on political considerations. To the degree that that is so, TransCanada has a viable if not a strong case."
Activists who opposed the pipeline insist the rejection was a legitimate policy decision, driven by concerns about rising greenhouse gas emissions in the oil sands, and by worries about local pollution from pipeline spills.
"The rejection of Keystone XL was justified in order to protect the land, water and property rights of farmers and ranchers," said Jane Kleeb, president of Bold Nebraska, a prominent local group. "This desperate attempt by TransCanada is a move to show their shareholders they have a viable project when they have hit a dead end."
Bill McKibben, founder of the climate group 350.org, said the legal action isn't going to get the pipeline built. "The idea that some trade agreement should force us to overheat the planet's atmosphere is, quite simply, insane. But the oil industry is so used to always winning that I fear this kind of tantrum is predictable."
The federal government offered little comment on the lawsuit, but said it would not undermine Ottawa's effort to forge a closer energy relationship with the United States.
"This is a private lawsuit that is being launched by TransCanada under Chapter 11 and the corporation has the right to launch and they've made the decision this is how they'd like to proceed," said Adam Barratt, spokesman for Foreign Affairs Minister Stéphane Dion, said in a telephone interview. "It would be inappropriate for the government to comment any further at this time."
However, Mr. Barratt noted that the Liberal government had expressed its disappointment in November when President Obama announced the decision.
"The relationship between Canada and the United States is on a very warm footing, and the discussions on energy in North America are much broader than Keystone," he said.