NAFTA a way to restart Keystone Pipeline? Public Citizen

The Obama administration made a lot of us environmentalists happy with yesterday's decision to reject the Keystone XL pipeline. But given that the Canadian government and corporations appear to be steaming mad about this, it's worth all of us reflecting on what their next move could be. A NAFTA case, for one, does not seem out of the question.....

TransCanada could point to a long string of overtures by the U.S. government that led it to develop "legitimate expectations" (as that is defined under trade law) that it would be able to build the pipeline, going from the private assurances in favor of the pipeline (recently revealed by FOIA documents to Friends of the Earth) and ending in the
December 2011 payroll tax cut (which included Keystone- related provisions). Those "expectations" could be then measured against what could be characterized under the FET standard as an arbitrary decision-making process, as when the Obama administration delayed the pipeline decision in November 2011 until after the presidential election.

TransCanada could point to some domestic pipeline operators that have not confronted similar hurdles as a basis for a National Treatment claim under NAFTA, while they could point to any lost expected future earnings as a basis for an "indirect expropriation" claim. Stranger cases over much smaller sums of money have been launched before.....

If all of this seems like an outrage, it is. And what's worse is that the Obama administration is considering putting similar investor rules in a NAFTA-style deal with nine nations, called the Trans- Pacific FTA. Stay tuned for more on this!

For the full length blog see

http://citizen.typepad.com/eyesontrade/2012/01/keystone-and-
nafta.html
Public Citizen- Eyes on Trade
Public Citizen's Blog on GLobalization and Trade
January 19, 2012
NAFTA a way to restart Keystone Pipeline?