The one-year anniversary of President Obama’s denial of the Keystone XL pipeline is fast approaching with little prospect of the project’s developer settling its dispute with the administration anytime soon.
TransCanada is trying to arbitrate Obama’s Nov. 6, 2015, decision as a violation of the North American Free Trade Agreement. The company filed a request with an international tribunal in June to seek billions of dollars in reimbursement under NAFTA for the prolonged seven-year State Department review process that ended with Obama rejecting the project.
But nothing has come from the arbitration proceedings, said TransCanada spokesman Mark Cooper. “Required negotiations under the international trade treaty to settle the dispute have so far been unsuccessful,” Cooper told the Washington Examiner in an email. However, a panel of arbitrators is supposed to form soon under the treaty.
“That means a panel of three arbitrators will soon be tasked with determining whether TransCanada was treated unfairly under continent-wide fair trade rules in what ended up being a protracted seven-year review before the U.S. Department of State, which ultimately denied the project, along with President Obama, on Nov. 6 of last year,” Cooper said.
The company has filed a separate lawsuit in federal court in Houston, where it is making a constitutional argument to reverse the decision, Cooper said. The lawsuit argues that Obama overstepped his authority under the Constitution to unilaterally reject the pipeline, which only Congress has the power to do. The administration said it is clear the president has power to deny permits that cross international borders under Article II of the Constitution.
It asked the court to dismiss the lawsuit on the basis that TransCanada’s argument has no firm legal merit. The court hasn’t made a decision on the lawsuit, and oral arguments haven’t been scheduled.
The administration rejected the pipeline over pressure from environmental groups to support efforts to reduce carbon emissions, and oppose projects that would continue the use of fossil fuels that create carbon dioxide, which many scientists blame for causing global warming. The 1,200-mile-long pipeline would carry crude oil from the tar sands in Alberta, Canada, to Nebraska, where it would connect with the existing Keystone pipeline that runs to the refineries on the Gulf Coast.
The Nov. 6 decision came a month before the U.S. went to Paris to reach to a landmark climate change deal with nearly 200 countries. President Obama had made reaching agreement on the treaty a major part of his climate change agenda, and likely quashed the pipeline to demonstrate his resolve going into the meeting.
“The administration acknowledged the decision was based on the perceptions by the international community about U.S. leadership on climate change,” TransCanada says on a web page developed to track the actions to reverse last year’s decision.
Obama said in rejecting the pipeline extension that “America is now a global leader when it comes to taking serious action to fight climate change, and frankly, approving this project would have undercut that leadership.”
The Paris climate change agreement is slated to enter into force Friday, two days before the anniversary of the pipeline’s rejection.
The company said it followed every federal and state procedure to site the pipeline, and passed every environmental and economic test over the seven-year review period, only to lead to a presidential decision that had little to do with the pipeline itself.
“The U.S. administration’s decision was arbitrary and unjustified,” the company said.
Members of the Republican leadership admonished the decision, and Donald Trump, who then was the GOP’s front-runner candidate, tweeted: “So sad that Obama rejected Keystone pipeline. Thousands of jobs, good for the environment, no downside!”
Hillary Clinton, who later became the Democratic nominee, said at the time that the decision was the “right call,” and that it was time to make the country into a “clean energy superpower.”
