RFK Jr. Says Wording Of TransCanada Lawsuit Sets Dangerous Precedent

Jan 25, 2016

A leading environmental law attorney says one of TransCanada’s lawsuits against the U.S. government for rejecting the Keystone XL pipeline could set a dangerous precedent for similar legal action under a trade deal not yet approved in the U.S. WAMC’s Hudson Valley Bureau Chief Allison Dunne spoke with Waterkeeper Alliance President Robert F. Kennedy, Jr., about the lawsuit and the Trans-Pacific Partnership.

TransCanada, the corporation behind the proposed Keystone XL Pipeline, filed two lawsuits earlier this month. One challenges President Obama’s move in November to deny the oil pipeline expansion, arguing that only Congress, not the president, has the power to nix such a proposal, a case Robert Kennedy, Jr. believes has no merit. The other legal action alleges the U.S. violated its obligations under the North American Free Trade Agreement, or NAFTA, and seeks more than $15 billion in damages. This suit, says Kennedy, is of great concern, as it uses language taken directly from the Trans-Pacific Partnership.

“And that is really horrifying language,” says Kennedy.

Kennedy adds:

“And the way that it’s being used by TransCanada this lawsuit is exactly what the darkest predictions by the most cynical predictors of why this treaty is going to be a catastrophe have been citing.”

Obama touted the TPP during his January 12 State of the Union address.

“That’s how we forged a Trans-Pacific Partnership to open markets and protect workers and the environment and advance American leadership in Asia. It cuts 18,000 taxes on products made in America, which will then support more good jobs here in America,” says Obama. “With TPP, China does not set the rules in that region. We do. You want to show our new strength in this century? Approve this agreement. Give us the tools to enforce it. It’s the right thing to do.”

Kennedy disagrees.

“It essentially hands state sovereignty over to corporations,” Kennedy says.

Kennedy says there is no legal right to pollute.

“But the TPP suddenly creates that right. It’s as if every polluter has a right to pollute and that the only way to stop them is to pay them all of their expected profits forever from polluting,” says Kennedy. “It’s really kind of an insane giveaway of American sovereignty.”

Overall, Kennedy is concerned there could be a new trend in companies taking legal action for projects that are killed or diminished because of environmental regulation.

Meanwhile, a day after President Obama delivered his State of the Union address, New York Governor Andrew Cuomo presented his combined State of the State and Executive Budget address. Cuomo proposes increasing the Environmental Protection Fund to $300 million; eliminating all use of coal by 2020 and, in general, ensuring New York’s leadership in the fight against climate change. Kennedy praises Cuomo’s environmental aims.

“I think those proposals put Governor Cuomo out at the spear tip of executive action all across the country and all across the world in terms of an aggressive program intended to address the threat of climate change,” says Kennedy.

That was Robert F. Kennedy, Jr., president of New York City-based Waterkeeper Alliance and chief prosecuting attorney for Westchester County-based Riverkeeper, speaking with WAMC’s Hudson Valley Bureau Chief Allison Dunne.