'Long, long odds' TC Energy's NAFTA claim will be successful: Trade lawyer

The odds of TC Energy Corp. getting its money back for its now-terminated Keystone XL pipeline project are slim, according to a veteran trade lawyer.

The Calgary-based pipeline giant launched a NAFTA dispute on Friday seeking US$15 billion in damages after U.S. President Joe Biden revoked a presidential permit for Keystone XL on his first day in the White House.

“Long, long odds,” said Mark Warner, principal at MAAW Law, in a television interview. “No case has ever succeeded against the United States under the NAFTA chapter 11 investor-state dispute settlement system.”

Warner said the onus is on TC Energy to prove they were treated unfairly or differently than an American company would have been in the same situation.

“This will go on for a long time,” said Warner. “The question is how much corporate energy TC Energy wants to devote to fighting this case.”


One of the Biden Administration’s first official acts was to revoke the permit for the highly contested project, which sought to boost the amount of crude shipped from the oil sands to refineries in southern U.S. states. TC Energy officially abandoned the expansion project last month, dealing a victory to environmental critics who opposed the project.

It’s unclear if either Alberta or the federal government will assist TC Energy with its legal challenge.

“My sense has always been that the Trudeau government is not willing to fight for Keystone,” said Warner.

He suggested Canada’s real interest on the energy front is in Enbridge Inc.'s Line 5 pipeline project, which would bring crude North under Lake Michigan and into Canada.

The fate of that project is also up in the air as Michigan Governor Gretchen Whitmer attempted to block the project over environmental concerns. Enbridge said it plans to raise the issue to federal courts.

“It’s a good sign [the Biden Administration] hasn’t completely removed themselves from the project, but they certainly haven’t given Canada what we’ve been lobbying for which is an immediate smack down of the Michigan governor,” Warner said.