{"id":214698,"date":"2016-01-08T01:57:43","date_gmt":"2016-01-08T01:57:43","guid":{"rendered":"http:\/\/rinf.com\/alt-news\/?p=214698"},"modified":"2016-01-08T20:31:31","modified_gmt":"2016-01-08T20:31:31","slug":"transcanadas-15b-lawsuit-against-u-s-on-keystone-xl-presents-strong-case","status":"publish","type":"post","link":"https:\/\/rinf.com\/alt-news\/editorials\/transcanadas-15b-lawsuit-against-u-s-on-keystone-xl-presents-strong-case\/","title":{"rendered":"TransCanada\u2019s $15B Lawsuit Against U.S. on Keystone XL Presents Strong Case"},"content":{"rendered":"

<\/b>Eric Zuesse<\/span><\/p>\n

TransCanada, the Canadian company that had been planning to build and own its proposed Keystone XL Pipeline carrying Canada\u2019s tar-sands oil to Texas Gulf Coast refineries for export to Europe and elsewhere, released to the public, on Wednesday January 6th, two legal presentations against the United States, because U.S. President Barack Obama, through his Secretary of State John Kerry, on 6 November 2015, had said no to TransCanada\u2019s proposed oil pipeline. <\/span><\/p>\n

TransCanada\u2019s basic legal argument contains many allegations, each one of which will be exceedingly difficult for the United States to defend successfully against; and all of which taken together provide TransCanada\u2019s stockholders a reasonably high likelihood of ultimately winning their penalty claim, even perhaps all of the $15 billion that they are seeking against U.S. taxpayers for the American President\u2019s having violated rights of TransCanada stockholders to profit, under the 1994 NAFTA trade agreement between the U.S. and Canada. This case could be a harbinger of many more to come if President Obama\u2019s three mega trade deals become passed by Congress (TTIP, TPP, and TISA), each of which extends the same profitable potentials for corporations to sue the U.S. government.<\/span><\/p>\n

First of all, the penalty case<\/span><\/a> here will be brought outside the U.S. legal system, in an arbitration panel (much championed by the Obama Administration and by prior Administrations, including that of President Bill Clinton, who introduced this arbitration-system into his NAFTA trade agreement). This panel will consist probably of three arbitrators, none of whom needs to be a lawyer, in an Investor State Dispute Settlement proceeding under America\u2019s NAFTA trade agreement with Canada, rather than in any U.S. court, and it will not be reviewable in, nor appealable to, any U.S. court, including even the U.S. Supreme Court. In other words: the penalty part of TransCanada\u2019s case will exclude any type of democratic accountability \u2013 any way that the American people (who would be the persons that would be paying the fine via their taxes) can hold anyone accountable, at the ballot box or otherwise, for the loss, if a fine is imposed by the panel. The U.S. public would simply be forced to pay to the stockholders of the TransCanada Corporation whatever fine such a panel might determine. <\/span>The American people elected Clinton, Obama, and the other Presidents, and the Congresses, which have subjected U.S. taxpayers to this system \u2013 called Investor State Dispute Settlement or ISDS \u2013 and future American leaders will have to deal with the consequences, whatever those may be.<\/span><\/p>\n

The court case<\/span><\/a> challenges whether the President\u2019s turn-down of the Keystone XL Pipeline proposal was Constitutional. It is formally unconnected with the penalty case; but, if the ultimate decision in it turns out to be in favor of Trans-Canada, then the company might be able to increase the penalty in the penalty case. Indeed, the penalty case closes with, essentially, a warning, to this effect: \u201cThe Disputing Investors reserve the right to adjust the claimed damages during the course of the arbitration.\u201d Obviously, if the President unConstitutionally blocked the Keystone XL, then that would be especially damning against the government. <\/span><\/p>\n

Secondly, both legal presentations \u2013 the penalty case and the court case<\/span><\/a> \u2013 cite chapter-and-verse of the statements by U.S. President Obama, and by his Secretaries of State Hillary Clinton and John Kerry, in which they had argued that the Keystone XL pipeline will present little or no environmental harm, and will be beneficial for the U.S. economy. Furthermore, the penalty case (in its footnote 61) cites and quotes from Secretary of State Kerry\u2019s 6 November 2015 press statement<\/span><\/a> which explained why the President was turning down the proposed pipeline. This is the passage that\u2019s cited: \u201cIt\u2019s absolutely true that the perception of U.S. leadership on climate change, the perception of what this President and this Administration have been doing, and the resolve that they have been showing over the course of the last number of years has been enormously important to the U.S. posture internationally\u201d However, the key statement there (which TransCanada oddly failed to quote, since it\u2019s their strongest evidence) was: \u201cThe critical factor in my determination was this: moving forward with this project would significantly undermine our ability to continue leading the world in combatting climate change.\u201d Kerry\u2019s assertion there, that this, the giving of a public impression to other countries, that the U.S. is concerned about the issue of climate change \u2013 and not any of the issues that have legal bearing (such as climate change, which he said wouldn\u2019t even be affected by the proposed pipeline) <\/span>\u2013 was \u201cthe critical factor\u201d in the decision, will add considerably to TransCanada\u2019s chance of victory in the penalty case.<\/span><\/p>\n

Thirdly, both actions cite a lengthy record of admissions by the Obama Administration that none of the issues that have legal bearing on the matter were pertinent in their decision. Here is how the penalty case summarizes this:<\/span><\/p>\n

49. This, then, was the basis of the Administration\u2019s reasoning:\u00a0Keystone\u2019s application should be denied so that the United States\u00a0could show leadership on climate change by (i) appeasing those who\u00a0held a view on the environmental impact of the Keystone XL Pipeline\u00a0that the Administration itself concluded on six different occasions\u00a0was wholly unsubstantiated; and (ii) making a \u201ctough choice\u201d to deny\u00a0Keystone a Presidential Permit for the Keystone XL Pipeline, even\u00a0though denying the permit would, based on the Administration\u2019s own\u00a0analysis, have no beneficial impact on the environment. In short, the\u00a0decision elevated perceptions over reality, which is the hallmark of a\u00a0decision tainted by politics.<\/i><\/span><\/p>\n

Unfortunately, the following matters will have no bearing on the ultimate determination by either the arbitration panel in the penalty case, or the ruling by the U.S. District Court for the Southern District of Texas, Houston Division (which will be the first court to hear the Constitutional case):<\/span><\/p>\n

All of the Environmental Impact Statements that the State Department commissioned to be done on the proposed pipeline, and especially the ones that were done under Secretary of State Hillary Clinton (a strong behind-the-scenes supporter of the Pipeline), were profoundly corrupt and were done by teams that included not a single climatologist but were instead wholly comprised of companies that were chosen by TransCanada itself, and that will potentially lose business if anything is reported that would be unfavorable to the U.S. government\u2019s approval of Keystone XL. In other words: they were rigged.<\/a><\/span><\/p>\n

John Kerry was only slightly less gung-ho for Keystone XL than Hillary Clinton was<\/span><\/a><\/span>.<\/span><\/p>\n

Furthermore, Steve Horn, of the DeSmogBlog, headlined 5 February 2015, at Huffington Post, \u201cDigging Into TransCanada’s Lobbying History,\u201d<\/span><\/a> and he reported that: \u201cIn addition to the\u00a0$250,000 paid to Paul Elliott<\/span><\/a>\u00a0— TransCanada’s\u00a0infamous in-house lobbyist<\/span><\/a>\u00a0and former Secretary of State Hillary Clinton’s national deputy campaign manager during her 2008 run for president — three outside firms lobbied on TransCanada’s behalf to promote KXL.\u201d One of those was Bryan Cave. And,\u00a0\u201cThe two Bryan Cave lobbyists on the KXL file are\u00a0Brandon Pollak<\/span><\/a>\u00a0and\u00a0David Russell<\/span><\/a>. Pollak formerly served as Deputy National Director of Grassroots Fundraising for John Kerry’s 2004 run for president. Kerry now serves as the head of the U.S. Department of State, the body assigned to make the final call on KXL.\u201d So, the deeper one dug, the more the smell came to resemble that of tar-sands sludge itself.<\/span><\/p>\n

But even that is merely scratching the surface of what\u2019s wrong here. If TransCanada wins its penalty case here, then all nations\u2019 environmental regulations will become effectively crippled, unless and until ISDS becomes internationally outlawed. But instead, Obama\u2019s top intended legacy as President is to seal the deals to extend ISDS globally<\/span><\/a> \u2013 and Hillary Clinton was a big supporter of that until she started to run for President in a Party that\u2019s overwhelmingly opposed to ISDS. It\u2019s the same as when she was a big champion of NAFTA until she started to run for President and said she hadn\u2019t supported it. She has the worst record on the environment of anyone except Republicans.<\/span><\/p>\n

The likeliest reason why Obama turned down Keystone XL is that he wants Hillary Clinton to become President to finish everything that he started. If he had accepted XL, he would have lost all chance of that happening, unless one of the Republican contenders wins the Presidency.<\/span><\/p>\n

\u2013\u2013\u2013\u2013\u2013<\/span><\/p>\n

Investigative historian Eric Zuesse is the author, most recently, of They\u2019re Not Even Close: The Democratic vs. Republican Economic Records, 1910-2010<\/i><\/span><\/a>,<\/i> and of \u00a0<\/i>CHRIST\u2019S VENTRILOQUISTS: The Event that Created Christianity<\/i><\/span><\/a>.<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

Eric Zuesse TransCanada, the Canadian company that had been planning to build and own its proposed Keystone XL Pipeline carrying Canada\u2019s tar-sands oil to Texas Gulf Coast refineries for export to Europe and elsewhere, released to the public, on Wednesday January 6th, two legal presentations against the United States, because U.S. President Barack Obama, through […]<\/p>\n","protected":false},"author":1254,"featured_media":174915,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[487,461,1622],"tags":[115,74,654,804,844,694,975,49,40],"class_list":{"0":"post-214698","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-breaking-news","8":"category-editorials","9":"category-featured","10":"tag-barack-obama","11":"tag-climate-change","12":"tag-global-warming","13":"tag-politics-2","14":"tag-tisa","15":"tag-ttip","16":"tag-ttp","17":"tag-usa-news","18":"tag-white-house"},"_links":{"self":[{"href":"https:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/posts\/214698","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/users\/1254"}],"replies":[{"embeddable":true,"href":"https:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/comments?post=214698"}],"version-history":[{"count":0,"href":"https:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/posts\/214698\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/media\/174915"}],"wp:attachment":[{"href":"https:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/media?parent=214698"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/categories?post=214698"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/tags?post=214698"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}