From TransCanada's press release:
TransCanada Corporation ... announced today it has filed a Notice of Intent to initiate a claim under Chapter 11 of the North American Free Trade Agreement (NAFTA) in response to the U.S. Administration's decision to deny a Presidential Permit for the Keystone XL Pipeline on the basis that the denial was arbitrary and unjustified.
TransCanada also has filed a lawsuit in the U.S. Federal Court in Houston, Texas, asserting that the President's decision to deny construction of Keystone XL exceeded his power under the U.S. Constitution.
...
TransCanada's legal actions challenge the foundation of the U.S. Administration's decision to deny a Presidential border crossing permit for the project. In its decision, the U.S. State Department acknowledged the denial was not based on the merits of the project. Rather, it was a symbolic gesture based on speculation about the perceptions of the international community regarding the Administration's leadership on climate change and the President's assertion of unprecedented, independent powers.
The State Department concluded Keystone XL would not significantly increase global greenhouse gas (GHG) emissions and that, in fact, alternative methods of oil transportation were more GHG intensive.
Through the NAFTA claim, TransCanada will be seeking to recover more than US$15 billion in costs and damages that it has suffered as a result of the U.S. Administration's breach of its NAFTA obligations.
The NAFTA claim asserts that TransCanada had every reason to expect its application would be granted as the application met the same criteria the U.S. State Department applied when approving applications to construct other similar cross-border pipelines - including the existing Keystone pipeline, which was approved in under two years, in contrast with the seven years the Administration took to make a decision on Keystone XL. The Keystone Pipeline System has now safely transported more than 1.1 billion barrels of Canadian and American oil through Canada and the United States.
Furthermore, in the federal court filing, TransCanada asserts the Administration's action was contrary to Congress' power under the U.S. Constitution to regulate interstate and international commerce. While the President has traditionally granted permits on narrow, established grounds, any such power does not exist when Congress has acted to the contrary or when the decision is based on the unprecedented and symbolic grounds that are the foundation of the denial in this case. In early 2015, both houses of Congress passed a bipartisan bill approving the construction of Keystone XL, which the President later vetoed.
The legal documents are here. The NAFTA Notice of Intent specifies the damages being sought: "The Disputing Investors seek damages of over US$ 15 billion arising from the United States’s breach of its NAFTA obligations."
There's plenty of time to talk about the legal issues (these cases take a while), so let's move on to politics. What does having a NAFTA ISDS claim on such a sensitive environmental issue (or "environmental" issue, if you prefer) do to the TPP debate? Does the filing of this case energize opponents? Does it sway anyone who was on the fence? (That could apply to both sides -- anti-Keystone Democrats who would now oppose TPP, or pro-Keystone Republicans who would now support it!).
(I changed the title of this post from "files" to "will file," because so far we have only a notice of intent).
