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Coleman said both cases would require some updating given the new circumstances and could have their merits, but the odds are against both TC Energy and the Alberta government because the U.S. has never lost a Chapter 11 case and paid damages.
“Even if it’s stronger than the average argument, no argument has ever been successful in winning compensation from the U.S. under NAFTA,” he said.
The language contained in the presidential permit issued by Trump, as well as the weakened provisions for seeking damages in the new USMCA trade agreement, will make it very challenging for Keystone XL proponents to challenge Biden’s decision, said Stephen Vaughn, a partner in the international trade team at King & Spalding LLP in Washington D.C., and previously general counsel for the U.S. Trade Representative.
The amended presidential permit Trump signed on July 29, 2020, specifically states Keystone’s “permit may be terminated, revoked, or amended at any time at the sole discretion of the President, with or without advice provided by any executive department or agency.”
Vaughn said it’s highly unlikely that either legal arguments or diplomatic overtures will change Biden’s position on Keystone XL.
“I think the view down here is that anything the president announces on day one, the president is pretty dug in on that,” Vaughn said. “I’m not aware of any presidents that did something on day one and then 90 days later think, ‘That was a mistake and I shouldn’t have done that.’”
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