Will Ruth Bader Ginsburg save the KeystoneXL pipeline?

As you know, FakePresident Biden on his first day in office cancelled the U.S. government approval of the KeystoneXL pipeline which would help Alberta oil reach U.S. based refineries and indeed open it up to more world markets.

The left, as usual when a moronic action is taken by one of their own, is absolutely giddy. Biden "killed" the Alberta tarsands, they are thinking. What does that get us? Well, nothing, but conservatives thought it was a good idea and therefore it's great they didn't get their way!

There is, however, a minor hurdle: Biden did so using an executive order, and those are not the be-all and end-all of federal policy. Such orders are subject to legal scrutiny, and that's where the (now even more!) withered husk of a harpy nicknamed "RBG"^† comes into play.

^† In the same way that "Breath of the Wild" killed "Best of the Worst" in Google searches, anybody who was responsible for digital colouring hated the week that Ginsburg bit the bullet.

Alberta-based TC Energy Corp. did not respond to inquiries for this story from The Daily Signal, but said in a recent press release: “TC Energy will review the decision, assess its implications, and consider its options.” 

A recent Supreme Court case that may provide guidance is Department of Homeland Security v. Regents of the University of California. In a 5-4 decision last June, the justices ruled that the Trump administration violated the Administrative Procedure Act by doing away with an Obama administration policy called Deferred Action for Childhood Arrivals, or DACA.

Did you get that? Using the same logic that the "kids in cages" whiners argued in court, Biden's order is unlikely to survive a challenge in the Supreme Court. The exact legal point is...

The key similarity is the concept of  “reliance interest,” GianCarlo Canaparo, a legal fellow with The Heritage Foundation, told The Daily Signal. The phrase is mentioned several times in the high court’s opinion in the DACA case. 

President Barack Obama’s executive action, which allowed illegal immigrants brought to the United States as minors to stay legally under certain circumstances, created an expectation among people in the country. Thus, if the U.S. government wanted to scrap the DACA policy, it would have to go through an administrative procedure. 

This created a “reliance interest” in the policy, the majority opinion by Chief Justice John Roberts said. 

TC Energy and the Canadian government likely also would have a reliance interest, said Canaparo, who has been researching potential legal avenues for the pipeline case: 

In DHS v. Regents, the court found that Trump couldn’t rescind DACA even though it was an executive action, because there was a reliance interest. That could be a stumbling block for Biden with regard to the Keystone pipeline. … The administration did not consider any reliance interest.

Just as Obama’s DACA stated that certain people could live and work in the United States, Trump’s go-ahead for Keystone XL  instituted a right to build a pipeline across the Canadian-U.S. border, Canaparo said. Both policies, according to court precedent, “created rights” that require the government to go through a procedure to undo, he said. 

It's also worth noting that KeystoneXL is under construction...in fact, the segment that crosses the 49th parallel^‡ has already been completed! As a result, the specific segment of pipeline that fell under clear U.S. federal jurisdiction is already a bit of a fait accompli. There's some lingering state-vs-fed arguments regarding the approval for the pipeline to cross state boundaries, but those aren't covered by Biden's order nor fall within presidential authority even if DC scores an unlikely win in those constitutional battles.

^‡ The border crossing is just southwest of Winnipeg, so that's not just the metaphorical 49th parallel but the actual 49th parallel.

Indeed because construction took place under President Trump, the legal argument against allowing FakePresident Biden to retroactively prohibit it via executive order is in fact stronger than the DACA "kids in cages" fight was.

The majority opinion in the Supreme Court’s ruling noted that  some DACA recipients had enrolled in degree programs, started careers, opened businesses, and bought homes. This crossed from being an emotional appeal to being a legal argument, because those persons took such actions in reliance on government policy. 

Similarly, TC Energy issued at least six contracts and was set to employ 11,000 for the $8 billion construction of the pipeline to carry 830,000 barrels of crude oil per day from oil sands in Alberta to Steele City, Nebraska. From there, the pipeline would connect with another Keystone pipeline that runs south to the Gulf Coast. 

The Daily Caller notes that TC Energy and Jason Kenney have a few other legal avenues up their sleeves as well, as communicated to the Financial Post:

In addition to suing the Biden administration in federal court, TC Energy could launch a case under a provision of the North American Free Trade Agreement. A NAFTA provision called Chapter 11 allows companies in the United States, Mexico, or Canada to challenge decisions by one of the three nations. The provision was grandfathered into the U.S.-Mexico-Canada Agreement, which replaced NAFTA, until 2023. 

A complaint by TC Energy about the pipeline cancellation under Chapter 11 could provide more neutral ground, Mark Warner, an international trade lawyer at MAAW Law in Toronto, told the Financial Post. 

“They could file a complaint under the old Chapter 11 and make a case that this was arbitrary and a denial of due process,” Warner told the Post.