For the past four years, Texas oil billionaire and corporate raider T. Boone Pickens has been suing the Liberal government in Ontario under NAFTA, arguing he has been the victim of "unfair" backroom deals involving the province’s green energy program.
A NAFTA tribunal is expected to rule on Pickens’ $700-million lawsuit this month, The New York Times reported Friday, describing the dispute as the 87-year-old tycoon’s “last big battle.”
The case is one of many that has some social activists concerned that foreign businesses enjoy too much influence over policy under NAFTA’s chapter 11, which allows foreign investors to sue Canadian governments to protect their investments, without first going through Canadian courts.
A recent study from the Canadian Centre for Policy Alternatives said 70 per cent of claims under NAFTA’s chapter 11 were targeted against Canada, making it the most-sued country under the trade agreement.
Pickens’ lawsuit alleges “abuse of power” and “undue political interference” in the handing out of contracts for wind power in Ontario, part of the province’s multi-billion-dollar green energy plan, launched in 2009.
The lawsuit, filed in 2011, claims that Pickens’ renewable energy company, Mesa Power, lost out on wind power contracts to Florida-based NextEra Energy because NextEra donated $18,600 to the governing Liberal Party before the 2011 provincial election. The suit says this gave NextEra exclusive access to government officials.
The lawsuit notes that NextEra's chief lobbyist at the time, Bob Lopinski, was a former advisor to then-Premier Dalton McGuinty.
The New York Times reports:
A review of documents and emails between NextEra executives, lobbyists and government officials show that NextEra met and held calls with high-level officials at the Ontario Ministry of Energy, the premier’s office and the power authority, even as Mesa Power executives were told they could not speak to officials until contracts were awarded. When NextEra lobbyists requested more information, officials sometimes responded within hours.
Ontario granted NextEra $3.8 billion in energy contracts, the Times reports, adding that Pickens had hoped those contracts would be the cornerstone of the renewable energy company he founded in 2007.
The suit also claims the Ontario government imposed a variety of “prohibited” buy-local rules, which the suit says violates NAFTA rules.
The Ontario government rejects Pickens’ claims.
“The Ontario Power Authority (OPA) runs an open, fair, and transparent process to award clean energy contracts under the feed-in-tariff program, “ Brad Duguid, then the province’s energy minister, told the Globe and Mail in 2011.
“All companies are treated equally with the same opportunities to participate, regardless of whether they are Ontario-based or internationally-based.”
An OPA official told the Times that Mesa Power didn’t submit its applications properly.
“In my view, many of Mesa Power’s failures were caused by its sloppiness and lack of care in preparing its application, and the consequent failure to satisfy clearly defined criteria,” procurement manager Richard Duffy said.
The Times notes that Mesa and NextEra are actually often on the same side of policy and political issues — both Pickens and NextEra have backed Jeb Bush’s bid for the White House.
Pickens recently donated $100,000 to the Bush campaign, in the hopes that a Bush victory would lead to a green light for the Keystone XL pipeline.
Pickens is a big fan of the oilsands, arguing that full exploitation of the resource could make the U.S. independent of Middle Eastern oil.
In a letter published in the Calgary Herald earlier this year, Pickens apologized to the people of Canada for President Barack Obama’s decision to veto a bill that would have allowed Keystone XL to go forward.