WSJ: If rule of law means anything under Nafta, TransCanada should win every dollar

[portlander23]

TransCanada Sues Obama on Keystone
Wall Street Journal

TransCanada announced late last week that it will challenge Mr. Obama’s Keystone denial before a North American Free Trade Agreement arbitration panel. The company wants more than $15 billion to repay its actual and lost opportunity costs. It alleges that by refusing to grant the permit—for purely political reasons—the U.S. failed to meet its Nafta obligations to treat all investors equally.

TransCanada says the U.S. assured the company that the January 2012 denial “was procedural and not a decision on the merits.” So the company continued to invest in the pipeline and filed a second application to include an alternate Nebraska route. In March 2013 State released another draft environmental statement that corroborated the first one. The final State report on Keystone XL’s environmental impact, in January 2014, found the same. But by then the project had become a political cause for the green lobby and in November 2015 the State Department officially denied the permit.

State issued five reports, over six years, with no harmful findings. TransCanada had patiently counted on assurances of fairness. But in the end the U.S. government admitted the merits didn’t matter. The Obama Administration said it rejected the pipeline because it had become a symbol of greenhouse gas emissions whose approval would be “perceived” negatively and damage U.S. leadership on climate change. If the rule of law means anything under Nafta, TransCanada should win every dollar it is seeking.

I differ with the WSJ and NAFTA in as much as I believe that foreign corporations ought not have standing to sue the country in an international trade arbitration because they dislike environmental decisions made by our elected government.

But hey, I'm just some guy.

[pampango]

1. If Obama had rejected the pipeline because TransCanada is Canadian but would have approved it if

an American company were building it, then TransCanada would have a legitimate case.

Obama rejected it on environmental grounds. While TransCanada can file a lawsuit if it wants to, it is likely pouring good money after bad. (But maybe the CEO is covering his a-- with his board of directors. "It was a great project. Obama is just a xenophobe and hates Canadians." I doubt many Canadians will buy that.)

Can't read the whole article without being a WSJ subscriber so I don't know if this was addressed.

[unblock]

2. i'm no lawyer, but at a minimum, it seems to me the actual expenses were largely self-inflicted.

doesn't a plaintiff normally have to mitigate their own damages? i know this isn't a simple u.s. tort case, but....

without a permit in hand, they couldn't know that a legitimate reason for denying the permit wouldn't turn up.
so any actual expenses beyond merely investigative (and $15 billion surely includes more than merely investigative expenses) would be speculative on the part of transcanada.

so even if their case were 100% right on its merits (which i'm not conceding), the u.s. wouldn't have to pay most of the actual expenses, i would think.

[geek tragedy]

3. The WSJ editorial page is, as usual, full of shit. nt

[giftedgirl77]

4. Lol