In the case of the Department of Homeland Security v. Regents of Univ. of California, decided in June of 2020, Chief Justice John Roberts, writing the majority opinion, struck down former President Donald Trump’s decision to end DACA.
Strangely enough, however, the very legal reasoning that was used in that decision is in fact equally applicable to current President Joe Biden’s decision to terminate construction of the Keystone XL Pipeline. Furthermore, an oil company based in Alberta, Canada, which was involved in the construction, may be bringing a case against the U.S. government based on that very precedent, and it may go all the way up to the Supreme Court.
Roberts’ Reasoning on DACA
The reasoning that Roberts used went as follows: According to the Administrative Procedure Act, executive departments must enact their policies in a reasonable manner, which includes consideration of those people who made plans and decisions based on the continued existence of some given program.
Thus, said Roberts, quoting pro-DACA attorneys, since DACA recipients have “enrolled in degree programs, embarked on careers, started businesses, and even married and had children” with the understanding that DACA would continue to exist, Trump did not have the right to abolish the program.
A Canadian Oil Company Threatens to Sue Over Keystone XL
Whatever one thinks of the above reasoning, it can be used to strike down Biden’s halt to construction on the Keystone XL Pipeline. An Alberta-based oil company named TC Energy has realized this and may be bringing legal action against the U.S. government.
“Large oil companies carry enormous planning and regulatory costs, many of which are incurred only after federal and state approvals, but before construction actually commences,” said attorney Joe Miller when commenting on the case.
In a statement released on Jan. 28, Ron Darden, chief executive of the Distribution Contractors Association, also said that “Completing the construction of the Keystone XL Pipeline would have created 10,000 good-paying American union jobs. More than $2.2 billion in wages would have been paid under a Project Labor agreement with four unions.”
Therefore, it stands to reason that these workers, unions, and companies like TC Energy all made significant plans under the assumption that construction of the Keystone XL Pipeline would continue to exist.
According to the Financial Post, TC Energy would launch a Chapter 11 complaint under the old North American Free Trade Agreement, which will remain part of Trump’s USMCA until 2023.
Furthermore, Reuters has reported that Alberta Premier Jason Kenney has threatened legal action against the Biden administration for its decision to halt construction on the pipeline.
If any of these cases make it to SCOTUS, it will give the Biden administration significant problems.