Alberta Petroleum Marketing Commission v. United States of America

Case summary

At a glance

Parties: Alberta Petroleum Marketing Commission (APMC), a Provincial Corporation of the Government of Alberta, Canada, also acting for its Delaware subsidiary 2254746 Alberta Sub. Ltd., v. the United States of America
Forum and rules: NAFTA legacy claim under CUSMA Annex 14-C and Section B of NAFTA Chapter 11. The published notice does not name an institution or rules.
Treaty: CUSMA (USMCA) Annex 14-C; NAFTA Chapter 11 (Articles 1102, 1103, 1105, 1110)
Sector: Oil pipeline (Keystone XL)
Outcome: Only the Notice of Intent (9 February 2022) is published. It contains no decision, and the documents do not show how the case ended.
Amount: Claimed: damages of not less than CAD 1,300,000,000.00, plus costs and interest.

The dispute

APMC is a statutory corporation and the commercial arm of the Government of Alberta. On 31 March 2020 it signed an Investment Agreement with TransCanada Pipelines Limited and committed up to US$ 5.3 billion to the Keystone XL pipeline. The money was to be invested through Delaware vehicles: an equity commitment of up to US$ 1.06 billion, a construction facility guarantee of up to US$ 3.8 billion, and a letter of credit facility of up to US$ 300 million. On 20 January 2021, his first day in office, President Biden revoked the March 2019 Presidential Permit for the pipeline by section 6 of Executive Order 13990. Construction was suspended, and the project was terminated on 9 June 2021. APMC gave notice that it would bring a NAFTA legacy claim under CUSMA Annex 14-C. It alleges breaches of national treatment, most-favoured-nation treatment, the minimum standard of treatment (Article 1105) and the rule on expropriation (Article 1110). It argues that the revocation was arbitrary, politically motivated, adopted without notice or due process, discriminatory compared with permits held by US-owned cross-border pipelines, and uncompensated. No defences by the United States appear in the published documents.

Key holdings

No decision has been published. The only document is the investor's Notice of Intent, so the points below are APMC's allegations, not findings. Notice of Intent
APMC claims it holds a "legacy investment" under CUSMA Annex 14-C ¶ 6. It says it made the investment under the Investment Agreement of 31 March 2020, before CUSMA entered into force on 1 July 2020, and that it qualifies as an investor under NAFTA Article 1139. ¶¶ 15–17, 25
APMC claims less favourable treatment under Articles 1102 and 1103. It points to the Cochin and Magellan pipelines, whose Presidential Permits are held by US-owned companies and were not revoked. ¶¶ 35–36
APMC claims a breach of Article 1105. It says the revocation was arbitrary, disproportionate and adopted without notice or consultation, and contradicted earlier US findings that the pipeline would not significantly increase greenhouse gas emissions. It also claims an unlawful, uncompensated expropriation under Article 1110. ¶¶ 37–39
APMC asks for a declaration of breach, damages of not less than CAD 1,300,000,000.00, costs, and pre- and post-award interest. Relief sought, p. 18

Procedural history

23 March 2017President Trump issues the first Presidential Permit for Keystone XL. A new permit replaces it on 29 March 2019.
31 March 2020APMC and TransCanada Pipelines Limited sign the Investment Agreement. Construction begins in Montana on 5 April 2020.
20 January 2021Executive Order 13990 revokes the Keystone XL Presidential Permit, and construction is suspended.
9 June 2021TransCanada Pipelines Limited confirms that the Keystone XL project has been terminated.
9 February 2022APMC serves its Notice of Intent to Submit a Claim to Arbitration on the US Department of State.