Alberta government continues its own legal action as an investor in failed project
The nearly two-decade-long oil pipeline saga surrounding the failed Keystone XL pipeline is nearing an end, as Calgary-based TC Energy has lost its bid to recoup $15 billion US from the U.S. government.
The decision also raises doubts about whether the Alberta government will recover any of its losses as an investor in the project.
TC Energy first proposed the 1,897-kilometre pipeline in 2005 to transport oil from Alberta to the U.S. Midwest.
The company permanently suspended the project in January 2021, after U.S. President Joe Biden pulled the presidential permit for the pipeline. Only about 150 kilometres of pipe was installed in Alberta.
A divided three-judge panel of arbitrators, sitting at the International Centre for Settlement of Investment Disputes, ruled against TC Energy on Friday.
“We are both disappointed and frustrated with the tribunal’s decision to deny our right to bring a legacy NAFTA claim,” Patrick Keys, the company’s general counsel, said in an emailed statement on Tuesday.
“This ruling does not align with our expectations and views of the plain interpretation of the protections NAFTA and the USMCA were designed to offer,” he said, referring to the United States-Mexico-Canada Agreement. “TC Energy was treated unfairly and inequitably in the revocation of the permit, which was driven by political considerations.”
TC Energy said the company has not recognized in its financial statements, nor factored into its outlook, any potential recoveries related to the NAFTA claim.
The tribunal said the legacy provisions tied to the former North American Free Trade Agreement only permit claims based on breaches that allegedly occurred while NAFTA was in force.
The final chapter of the ill-fated Keystone XL project will likely be the ongoing claim by the Alberta government, which became an investor in the project in 2021 and provided loan guarantees to TC Energy to help kick-start construction of the pipeline in the province.
The same free-trade arbitration tribunal that heard TC Energy’s case will consider the Alberta government’s claim, although different arbitrators will be involved.
In its filing, the province is asking the tribunal to award damages of at least $1.6 billion Cdn “as compensation for the losses caused by, or arising out of, the U.S. government’s measures which have been held to have breached the terms of the CUSMA and NAFTA” trade agreements.
On Tuesday, Alberta Energy Minister Brian Jean’s office said it was reviewing the tribunal’s decision involving TC Energy for information purposes, while proceeding with its own case.
“We anticipate a decision by fall of this year. This is an ongoing legal process and we are unable to comment on ongoing legal matters,” the department wrote in an email.
Over the years, Keystone XL became a lightning rod in the debate about climate change as it winded its way through several regulatory and court challenges.
During his time in the White House, then-U.S. president Barack Obama showed signs of supporting the project, but ultimately blocked it. When Donald Trump was elected in 2016, he revived the project, only for Keystone XL to be dealt another blow when Joe Biden took office in 2021.
