American Oil and Gas Reporter - August 2021 - 14

IndustryDigest
TC Energy Corp. Files
Free Trade Suit Over
Keystone Cancelation
CALGARY, CANADA-TC Energy
Corp. has filed a notice of intent to
initiate a legacy North American Free
Trade Agreement claim under the
United States-Mexico-Canada
Agreement to recover economic
damages resulting from President
Biden's revocation of the Keystone XL
project's border-crossing permit.
TC Energy says it seeks to recover
more than $15 billion in damages that it
has suffered because of the U.S.
government's breach of its NAFTA
obligations.
The Notice of Intent was filed with
the U.S. Department of State, Office of
the Legal Adviser.
In a related matter, press accounts
note, Chief Judge Brian Morris
overrode Biden administration
objections and kept alive a lawsuit that
challenged presidential authority to
issue cross-border pipeline permits. The
administration has argued that Biden's
decision to pull Keystone's permits
nullified any need for the litigation, but
Morris disagreed.
" Although President Biden revoked
the 2019 permit, the possibility remains
that he, or a future president, could issue
unilaterally another permit, " Morris
indicated in a June 2 order. " In fact,
President Biden exercised such unilateral
and unchecked authority in his revocation
of the 2019 permit. The revocation
included no mention of the lawfulness of
the underlying 2019 permit, but instead
noted that the 2019 permit 'disserves the
U.S. national interest.' " ❒
California Restaurateurs
Vow To Fight On Against
Berkeley's Gas Ban
OAKLAND, CA.-Although a
federal judge has dismissed its case
against the city of Berkeley, Ca., the
California Restaurant Association is
vowing to appeal. The lawsuit
challenges Berkeley's ordinance to
prevent natural gas piping in the city's
newly-constructed homes and
restaurants.
The lawsuit CRA filed against
Berkeley in November 2019 alleges that
the ordinance violates long-established
14 THE AMERICAN OIL & GAS REPORTER
state and federal law, will harm
restaurants and other energy users and
is invalid and unenforceable under the
federal Energy Policy and Conservation
Act (EPCA) and California's energy
and building standards codes. It also
decries the ordinance as an unlawful use
of police power to amend state building
codes. CRA says it is pursuing the
action to protect restaurant owners from
being forced to operate out of buildings
that lack natural gas, which it deems a
vital tool for cooking and creating many
restaurant dishes quickly and efficiently.
" Whether searing steaks, charring
vegetables or stir-frying noodles, chefs
and cooks rely on the most important
tool in the creation of a dish-fire, " CRA
attests in a factsheet explaining the
lawsuit. " There are also economic
impacts. Many restaurants use gas to
heat water and space and for other
appliances. This ban will raise costs to
build and operate restaurants.
Restaurant owners may simply choose
not to move to or construct new
buildings because they will not have
access to natural gas. "
According to CRA, Judge Yvonne
Gonzalez-Rogers in the Northern
District of California dismissed the suit
because federal law concerning the
energy use of natural gas appliances
does not cover local regulation of
natural gas infrastructure.
The order to dismiss, issued on July
6, faults CRA's interpretation of the
EPCA. " Even with an admittedly broad
provision, the court cannot determine
how the EPCA expressly preempts the
Berkeley ordinance where the Berkeley
ordinance does not directly regulate
either the energy use or energy
efficiency of covered appliances, "
Gonzalez-Rogers' decision says. " In
short, CRA attempts to bootstrap the
EPCA's principles of the 'energy
efficiency' or 'energy use' of covered
products to the ordinance. CRA cannot.
The ordinance facially does not address
any of those standards, let alone
mandate or require any particular
energy use of a covered product.
" Instead, " the ruling says, " the
ordinance 'prohibit(s)' all 'natural gas
infrastructure' in new buildings (defining
natural gas infrastructure to include 'fuel
gas piping' from the gas meter into the
property). This is clearly outside the
preemption provision of the EPCA. "
CRA President and Chief Executive
Officer Jot Condie promises to appeal
the ruling. " Our fight to make sure
restaurants have continued access to
natural gas cooking will continue, " he
vows. " The judge's decision confirms
what we knew: We have standing in this
case because of the obvious negative
impact to restaurants that will result
from the loss of cooking with natural
gas stoves. The court's decision
helpfully narrows the issues, bringing
into clear focus whether local
governments can nullify state and
federal law on energy policy. "
Media accounts note American Gas
Association General Counsel Michael
Murray is among those expressing
disappointment about the dismissal.
" This decision harms the businesses and
people of Berkeley and the environment
because it eliminates by fiat an energy
choice that is part of the solution to
address climate change, " he is quoted.
" The court's decision would be a
dramatic shift in how energy policy is
set in this country, " assesses CRA's
attorney, Courtland Reichman of
Reichman Jorgensen. " The complex
energy regulatory framework, which
balances a wide array of interests such
as energy sources, addressing climate
change, infrastructure, markets and
consumer needs, is set at the national
level in conjunction with the states.
Regardless of which administration is in
the White House, its energy policy
would be undermined if each of the
thousands of cities and counties across
the country can simply veto it. " ❒
Louisiana High Court
Limits Damages For
Oil Field Lawsuits
BATON ROUGE, LA.-The
Louisiana Oil & Gas Association is
applauding a Louisiana Supreme Court
decision that it says is a significant step
away from the state's litigious culture.
According to Liskow & Lewis
attorneys Kelly Brechtel Becker and
Laura Springer Brown, the June 30
Louisiana Supreme Court opinion in
State of Louisiana v. Louisiana Land &
Exploration Co. (LL&E II) redefines
" the nature of available damages and
the 'actual, statutorily permitted role of
the jury' " in legacy lawsuits.
" The Louisiana Oil & Gas
Association fully supports the LL&E II
American Oil and Gas Reporter - August 2021

Table of Contents for the Digital Edition of American Oil and Gas Reporter - August 2021
