Border Petrol: U.S. Challenges to Canadian Tar Sands Development

64 Pages Posted: 5 Feb 2013 Last revised: 20 Mar 2013

Date Written: November 30, 2011

Abstract

In 1999, Canadian oil became the United States’ largest source of petroleum, surpassing Saudi Arabian and Mexican oil. There is little question that U.S. demand is driving the rapid development of the Canadian oil sands. With this in mind, this paper asks the question: What legal levers exist for Americans who are against oil sands development to challenge it? The paper describes the avenues of challenge available and assesses their relative merits and their difficulties. Some of the avenues discussed are hortatory, some exert indirect financial pressure, and others attack development directly through regulation or lawsuits. Part I gives a short introduction to oil sands development, the associated environmental problems, and the lobbies in favor of and against development, and considers the reasons Americans might want to discourage development. Part II focuses on current and potential future challenges under the North American Free Trade Agreement (NAFTA) and its side agreement, the North American Agreement on Environmental Cooperation (NAAEC). Part III discusses the importance of pipeline construction to oil sands development and the legal barriers the construction is facing. Part IV considers low carbon fuel standards (LCFS), which limit fuel imports based on the carbon-intensity of fuel production, and therefore have great potential to affect oil sands development. Part V discusses climate litigation, specifically lawsuits against oil sands producers for climate harms. Part VI considers a number of quasi-legal policy and market approaches and lists potential further areas of consideration and research.

Keywords: Oil Sands, Tar Sands, Bitumen, Cunningham, NAFTA, NAAEC, Citizen Submission, NEPA, LCFS, Transnational Litigation, Oil, Keystone XL, Keystone Pipeline, Keystone XL Pipeline

Suggested Citation

Cunningham, Brandon, Border Petrol: U.S. Challenges to Canadian Tar Sands Development (November 30, 2011). NYU Environmental Law Journal, Vol. 19, No. 3, 2012, Available at SSRN: https://ssrn.com/abstract=2211695

Brandon Cunningham (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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