Varcoe: Canada mounts final plea for Keystone XL, as prospects dim for Alberta’s investment

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However, legal experts aren’t quite so certain. In short, it doesn’t look promising.

Alberta Premier Jason Kenney speaks in Calgary on March 31, 2020 about the the plan to kick-start construction on the Keystone XL pipeline. Photo by Jim Wells/Postmedia/File

TC Energy could file a lawsuit in the United States federal court or make a claim under the old NAFTA agreement. The Calgary-based pipeline giant made such a claim after the 2015 rejection by Obama, seeking US$15 billion in damages. (The case was dropped after Trump backed the development upon his election.)

The United States has never lost such a case and paid out damages, noted James Coleman, an expert in pipeline law and a professor at Southern Methodist University in Dallas.

Winning such a battle wouldn’t get the pipeline built, either.

“Suing your way to successful construction against a hostile government, no one would suggest that’s anything but a long shot, even if your arguments are good,” he said.

Alberta could try to recover some of its investment in a separate lawsuit, but it would also face challenges.

“It is long odds, to put it mildly,” said trade lawyer Mark Warner with MAAW Law in Toronto.

“Whether it’s through the U.S. courts or through NAFTA, it would be very long and very contentious and hard to win, but not impossible.”

The 2019 presidential permit for Keystone XL signed by Trump plainly states it can be terminated, revoked or amended at any time at the sole discretion of the U.S. president.

These factors don’t add up to an ironclad case to recover taxpayer money, although Alberta needs to consider all of its alternatives.

“I would say the chances are not good. But given how much public money was put into this, I think there’s a responsibility to seek any compensation you can get, in any way you can,” said University of Calgary law professor Kristen van de Biezenbos.

There will be plenty of time to focus on recouping Alberta’s lost investment if the project is derailed this week.

At this point, Keystone XL still remains a live issue for the federal and provincial governments — at least for now.

Chris Varcoe is a Calgary Herald columnist.

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