The company behind the Keystone XL Pipeline, TransCanada, opened its year with a sour grapes lawsuit against the United States government over its rejection of the pipeline. The pipeline, which was rejected after years of grassroots organizing by Native Nations, environmentalists, students and many others, would have brought corrosive tar sands over one of the largest aquifers in the United States in an attempt to prop up the besieged oil industry. Its rejection by the Obama administration represented a major setback for TransCanada, which banked on the pipeline as a major expansion of its business.
TransCanada’s business model is largely founded on its extensive network of pipelines carrying natural gas, oil and tar sands. Because the corporation is based in Canada, the pipeline would have been a major boon for TransCanada, since it would have granted access to ports along the Gulf of Mexico, as well as the extensive oil refining infrastructure of the Gulf Coast—the same refining infrastructure targeted by the infamous BP Deep Horizon rig.
At first glance, the case might appear to stand on shaky legal grounds. Its case is this: it is suing the United States government for $15 billion relying on a legal precedent under the North American Trade Agreement (NAFTA) called an investor-state-dispute-settlement (ISDS), whereby a corporation, or investor, may sue a government for violating the “free investment” guaranteed by the NAFTA. The United States government has never lost an ISDS, but Canada and Mexico have, under similar NAFTA-inspired lawsuits. To cover its bases, TransCanada has launched a twin lawsuit in U.S. courts, but many commentators, from the Cambridge University’s Todd Tucker (to the director of Public Citizen’s Global Trade Watch, Lori Wallach, are focusing on the NAFTA lawsuit.
Under the NAFTA process, an international tribunal representing the litigating investor (TransCanada in this case) and the government (the United States government in this case) will hear and decide the case. It does not supercede the power of the state in question, however, and consequently cannot overturn the case. It is consequently unlikely that the outcome of the trial will affect the decision to halt the pipeline in an immediate sense.
The lawsuit, however, still represents a real threat to gains made by the environmental movement. Because of the powerful influence the booming tar sands industry wields in Canadian politics—the United States’ single largest trading partner—the political fallout may open a new chapter of struggle against Big Oil; Canadian Prime Minister, Justin Trudeau, has already bandied another potential lawsuit against the United States’ meat industry, spreading fear throughout United States’ meat industry. Political action by the Canadian government, in other words, might be used to pressure a change in regulations governing the pipeline. Put another way, although the immediate gains may be safe for the time being, their staying power faces grave danger in light of the new lawsuit.
All defenders against the Keystone XL must understand not just the gravity of this threat, but the context in which it was made. The United States government ultimately controls the process though which the lawsuit will be settled. The fact it has never been defeated in a ISDS is testament to that fact. But neither does it defend or represent the same interests as the movement which stopped the pipeline. It did not reject the pipeline for environmental reasons, since it had a wealth of information on the pipeline’s environmental impact almost immediately after it was proposed. Nor did it did not even pretend to reject the pipeline out of consideration for Native nations’ sovereignty. Rather, it rejected the pipeline out of political expediency: the movement proved powerful enough to concern politicians with gloomy thoughts about reelection.
The political outcome is clear: if the U.S. government only acquiesced to the movement’s demands because it made the issue a political liability, the task of the movement is to sustain the power it has built. The victory, in other words, was won not because the movement swayed politicians’ opinions, but because it posed a threat. Without the continued activism and activity of the movement, the issue may disappear into the murky world of international law, and the powerful threat to Big Oil and its lobby will be gone.
That TransCanada has made no effort to save face should be a motivator. The shockingly crass lawsuit is being placed under the auspices of NAFTA, a deal which is almost universally disliked by even the most moderate of North American liberals and progressives. This shows that the company is completely uninterested in winning back the public’s support. Another brazen and crass move is that fact that it is suing for $15 billion, despite the fact that only $3 billion was lost in investment in the pipeline. Its reasoning is that $15 billion were lost in investment and potential revenue.
TransCanada’s lawsuit, then, is the opening salvo in a new chapter of the fight against the corporate pillaging of the environment and of the popular—especially Native—sovereignty. This is an opportunity to expand the scope of the fight beyond the Keystone XL Pipeline. The struggle already has linked the once-disparate struggles of Native liberation, environmental defense and labor into one fight. It won a rare glimmer of people’s democracy—where mass action won a victory benefiting the masses of people, not just a tiny group of millionaires and politicians. This is an opportunity to expand the struggle for that power to be the norm, not the exception. The environmental defense and Native Liberation movements have already proved powerful enough to knit politicians’ brows with thoughts of unlikely reelections. It was only the newly-energized mass movement that made the pipeline a household name synonymous with corporate greed and recklessness.
We have an opportunity to reverse the tide, where instead of fighting to worry politicians, we can fight to have our own politics. Indeed, only when the political tide so turns can we stop climate change and anti-Native colonialism writ large. The struggle has opened an opportunity to fight for just that, and we must. The Keystone Pipeline is only symptomatic of the larger issue—climate change. Although it is certainly no small victory that the pipeline was stopped, the United States has already resigned itself to living with climate change. This is an unacceptable risk, putting most life on Earth at risk.
If the fight against the Keystone XL pipeline shows anything, however, it is that only mass action has the power to stop and reverse climate change.
