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Green Politics Ain’t Beanbag

By Ari Charney on January 8, 2016

When it comes to the Keystone XL pipeline, TransCanada Corp. (TSX: TRP, NYSE: TRP) won’t go gentle into that good night.

The Canadian pipeline company lobbied the U.S. government for seven years for approval of Keystone, and in the wake of President Obama’s rejection of the project in November, TransCanada now wants its day in court.

On Wednesday, the company announced that it intends to file a claim under the North American Free Trade Agreement (NAFTA) that the Obama administration’s decision was “arbitrary and unjustified.”

The company has also filed a lawsuit in the U.S. Federal Court in Houston, Texas, asserting that the president’s denial exceeded his authority under the Constitution.

TransCanada clearly hopes to recoup some of the money it’s already invested in the project, especially considering that it will be taking a write-down estimated to range between C$2.5 billion and C$2.9 billion on its fourth-quarter financials. From a shareholder standpoint, that’s already priced into the company’s stock.

TransCanada hopes to recover as much as US$15 billion in costs and damages through NAFTA. That number is derived not just from the money the firm has already invested in the project, but also from the estimated value of the project had it been completed.

Meanwhile, the company’s suit against the U.S. government is aimed at overturning the president’s ruling, thereby allowing it to proceed with constructing the pipeline.

As investors, we’d love to see TransCanada get another bite at the apple, whether that comes from finally building the pipeline or winning back some of what it’s lost via NAFTA.

But as with all things Keystone thus far, this process will be long and drawn out. The company expects at least several years of legal wrangling.

Regardless of the merits, does TransCanada have any hope of success in these venues?

The Center for Strategic & International Studies’ exhaustive review of investor-state dispute settlements around the world suggests that a win under NAFTA would be more akin to a moral victory than a monetary one. The study found that when investors prevail in such disputes, the awards are typically a tiny percentage of the initial claim, averaging less than 10 cents on the dollar.

And when the focus narrows to NAFTA, the U.S. has a nearly undefeated track record—it’s lost just one of 14 trade appeals filed.

Meanwhile, past lawsuits challenging presidential rulings on permits have generally been decided in favor of the government.

The courts have said the president has the power to rule on these matters based on the office’s Constitutional authority to conduct foreign policy.

As Reuters notes, however, these lawsuits were mostly on procedural grounds rather than the Constitutional case that TransCanada is making. But while the federal suit could set new precedents for legal geeks to mull over, it may not do enough for TransCanada.

But TransCanada has another path to victory on Keystone that could occur far sooner than any legal outcome, and with greater odds of success: The U.S. presidential election.

All five of the top Republican candidates are favorably disposed toward Keystone.

And while Democratic frontrunner Hillary Clinton recently said she’s opposed to Keystone, that announcement came late enough in the game to suggest that her stance is more informed by political marketing than ideology.

Still, sometimes that’s all that matters, especially if environmentalists spend heavily on Clinton’s campaign.

But overall, a closely divided U.S. electorate means that TransCanada’s best odds are at the ballot box next November, not through the courts.

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