If you expected TransCanada to slink away in defeat after President Obama denied a permit for its Keystone XL oil pipeline, guess again. The Intertubes have been buzzing with news that the company has filed suit in federal court, seeking to prove that the President over-reached his Constitutional authority. TransCanada has also let out word that $15 billion is the price tag it will seek for damages and cost recovery under NAFTA, the North American Free Trade Agreement. O, Canada!
Keystone XL And The 2016 Presidential Race
We’re wondering why TransCanada didn’t just wait a few months until the November 2016 US presidential election, since the rise of a Republican president to the White House would all but guarantee a fresh, friendly look at the Keystone XL permit application without all the bother and expense of a lawsuit, but whatevs.
On the other hand, Republican frontrunner Donald Trump’s seat-of-the-pants approach to policymaking clearly adds an element of uncertainty to the mix, so we’re guessing that TransCanada is not so confident that a Republican president would necessarily be all that friendly.
As for the off chance of a Democrat taking the White House again, recall that TransCanada tried to hit the pause button on its Keystone XL permit application last fall, only to get the bum’s rush just a few days later with a formal denial. It’s unlikely that another Democratic president would enable the project to move forward.
The Keystone XL Constitutional Lawsuit And Legal Action
TransCanada has graciously made available the paperwork for its new Keystone XL actions on its blog.
The lawsuit launches off with this:
This case presents the question whether the Constitution grants the President unilateral power, unsupported by any statute and contrary to the expressed wishes of Congress, to prohibit the further development of the Keystone XL Pipeline on the basis that the pipeline would cross a U.S. border and would, if permitted to proceed, undercut the President’s influence in international climate change negotiations.
And, here’s a taste of the NAFTA litigation:
Seven years after Keystone filed its application, the United States denied the permit even though the Administration had concluded on six occasions that the pipeline would not have a significant impact on climate change. Stated simply, the delay and the ultimate decision to deny the permit were politically – driven, directly contrary to the findings of the Administration’s own studies, and not based on the merits of Keystone’s application…
Politically Driven Or Not…
If you have any thoughts about the Constitutional issues involved, drop us a note in the comment thread.
We’re especially interested in the NAFTA litigation because on the surface there doesn’t seem to be much of a case. As underscored by TransCanada, the White House has admitted that the Keystone XL pipeline had become a political hot potato, but that doesn’t necessarily evaporate the case for denial of the permit on other grounds.
Years before President Obama formally denied the permit, he began laying the groundwork for a non-political case against the pipeline. One key step occurred on June 23, 2013, when the President gave a major address on climate change at Georgetown University:
…I do want to be clear: Allowing the Keystone pipeline to be built requires a finding that doing so would be in our nation’s interest. And our national interest will be served only if this project does not significantly exacerbate the problem of carbon pollution…The net effects of the pipeline’s impact on our climate will be absolutely critical to determining whether this project is allowed to go forward. It’s relevant.
That “national interest” language pops up in a 1968 Executive Order that established Presidential authority over cross-border facilities such as the Keystone XL pipeline, which would convey tar sands oil from Canada down through the U.S. midsection.
Now fast forward to November 6, 2015, when the President made his official statement on the permit denial. After carefully noting the politicization of the project, he just as carefully noted the non-political reasons for denying the project, namely, that it would not make a “meaningful, long term contribution” to the U.S. economy in terms of job creation, it would not result in lower gas prices for consumers, and it would not enhance the energy security of the U.S., defined as reducing dependency on imported oil from “unstable parts of the world.”
On top of these specifics, the President also made the case that the U.S. has a strong economic interest in leading the globe on climate action, in terms of producing, using, and exporting clean energy technology, and that this potential would be undercut by the pipeline. Note that he again makes the case for macro-scale national interests, not to particular instances of opposition (of which there has been much) from local residents, property owners, and other stakeholders:
…Because ultimately, if we’re going to prevent large parts of this Earth from becoming not only inhospitable but uninhabitable in our lifetimes, we’re going to have to keep some fossil fuels in the ground rather than burn them and release more dangerous pollution into the sky.
So there’s that.
While we await the President’s response to TransCanada’s actions, we’re also keeping an ear open for word from the patriots who have risked all to take a stand for property rights at the Malheur National Wildlife Refuge in a remote region of eastern Oregon. If TransCanada ultimately succeeds, there will be plenty of ranchers, farmers, and other stakeholders in need of a few good men to defend their property rights in other states.
We’re particularly thinking of Oklahoma, which is already under siege by the oil and gas industry in the form of swarms of earthquakes related to fracking waste disposal.
Pack up your Go-Gurt and let’s ride!
Image (screenshot): via state.gov.
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