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Keystone pipeline developers ask US $ 15 billion for cancellation

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(Bloomberg) – The developers of Keystone XL are seeking more than $ 15 billion in damages related to President Joe Bidens’ decision to withdraw a permit for the cross-border pipeline even after construction begins.

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With a request for arbitration filed on Monday, Calgary-based TC Energy Corp. officially opened one of the largest trade appeals ever against the United States and asked to bring its long-standing Keystone XL dispute to an international arbitration panel. The legal claim is mounted under the provisions of the North American Free Trade Agreement that allow foreign companies to challenge US policy decisions.

The US decision to revoke the license was unfair and unfair, TC Energy said in its case, accusing the US of putting Keystone XL on a 13-year regulatory roller coaster.

The proposed pipeline, which would have transported up to 900,000 barrels per day of Canadian crude to US refineries, was rejected by then-President Barack Obama after concluding that it would exacerbate climate change. Keystone XL was then relaunched by President Donald Trump, only for Biden to reject it again, on day one in office.

While the new US-Mexico-Canada agreement that replaced NAFTA limited the use of investor-state dispute resolution systems, arbitration is still temporarily protected for some legacy investments.

TC Energy suspended construction on Keystone XL and ended the project after Biden revoked his license. TC Energy has no plans to relaunch Keystone XL regardless of the outcome of the business deal, which aims to recoup the investment it lost by continuing the project under three US presidents, said Richard Prior. , the company’s senior vice president for liquids pipelines.

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Were not doing this for symbolic or political purposes. This is a business decision, Prior said in an interview. We had all the permits and requirements in place to start building the line, and we did, and we worked with federal and state regulators in both countries for a very long time. It is simply a matter of recovering this destroyed value of the investment.

TC Energy accuses the United States of violating its obligations under the NAFTA with actions of three administrations. The company said in the filing that it agreed to drop a previous NAFTA arbitration request after the Trump administration promised its third request would be given a fair review by the United States. With its new case, TC Energy also renews some of those earlier arguments related to the initial rejection of Keystone XL by the Obama administration in 2015.

The dispute is submitted to a three-member arbitration panel, including one likely appointed by TC Energy, a second appointed by the United States, and a third appointed by agreement of both parties. The court cannot compel a country to change its laws in this matter or force approval of the pipeline, but it could award damages for lost profits and costs incurred by the company.

Such investor-state dispute resolution claims by companies against the United States are relatively rare, and the United States has a good track record of winning them. However, companies have emerged victorious from similar international disputes. Most notably, in March, Germany agreed to pay $ 2.9 billion to Swedish company Vattenfall AB and other utilities, as part of a compensation package resolving a ten-year battle over the the country’s decision to phase out nuclear energy.

Bidens’ decision to revoke a presidential permit on his first day in office – without another round of government analysis on the long-studied project – gives TC Energy an extremely strong case under the NAFTA language, except for arbitrary discrimination, said Gary Hufbauer, a Washington employee. principal researcher at the Peterson Institute for International Economics.

TC has an excellent legal case pending, Hufbauer said. This was well outside the standard of customary government behavior.

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