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“Coal is dead.”

These are not the words of a Greenpeace activist or left-wing politician, but of Jim Barry, the global head of the infrastructure investment group at Blackrock — the world’s largest asset manager. Barry , but for longer than that.

, which is why they are increasingly unwilling to underwrite new coal mines and power plants. Unions and coal workers know it, which is why they are demanding a and new employment opportunities in the clean economy. Even are getting out of the business of coal.

The only ones who seem to have remained in denial are and non-diversified mining companies like . The Denver-based firm made a bad bet in 2013 when it purchased five coal mines in Alberta. Now it wants Canadian taxpayers to pay for its mistake.

Alberta’s coal phaseout

Three years ago, Alberta’s New Democratic Party (NDP) committed to what some have described as “.” In addition to the development of an economy-wide carbon price, the province is . Without the infrastructure to export coal, the climate plan has also resulted in a de facto phaseout of local thermal coal mining.

To ensure support for the plan, major utility companies in the province were provided with “” to facilitate the switch to gas and renewable energy. Westmoreland did not receive a government handout, because coal mining companies have no role to play in the energy transition. The company, which protection for its investments in the United States in October, doesn’t think this is fair.

NAFTA’s investment chapter

Because Westmoreland is an American company, it can rely on the North American Free Trade Agreement (NAFTA) for protection from . NAFTA allows a foreign investor to use a process known as “Investor-State Dispute Settlement” (ISDS) when government action harms its business in some way.

ISDS allows foreign investors to bypass local courts and bring claims for monetary compensation to an international tribunal. The system is not unique to NAFTA; it is found in other trade agreements like the and thousands of (known as in Canada).

ISDS is hugely controversial. Concerns have been raised by a wide range of actors about both the , and the way the system can infringe on the .

More than have been launched by investors since the early 1990s, including that have so far cost Canadian taxpayers . There is one that concerns a ban on gas fracking in Québec, but the Westmoreland claim is the first brought in relation to a policy explicitly designed to combat climate change.

that part of the reason it invested in Canada in 2013 was to diversify its holdings in response to regulatory risk. At the time, the Obama Administration was to reduce the reliance of American utilities on coal. The company’s failure to anticipate similar regulatory action by its northern neighbour is remarkable.

A key battleground

If governments respond appropriately to the in October, efforts to phase out fossil fuels will have to ramp up considerably — and quickly. We should expect the industry to fight these efforts through a variety of means. ISDS may become a key battleground.

The (USMCA or CUSMA, ), which may replace NAFTA (it has been signed, but has not been ratified),

While this is good news in the long run, some have suggested that there will be a “” before access to ISDS for already established investors expires (three years after USMCA comes into force). Canada will also be exposed to claims from investors under other agreements such as the CPTPP and .

Other countries, particularly poorer nations, face an even higher risk of ISDS claims and have far . It is notable that in USMCA, after .

A climate of fear?

If Westmoreland’s case proceeds to arbitration, it will not have direct implications for Alberta’s climate policy. An investment tribunal cannot require the provincial government to reverse the coal phaseout; it can only award the company damages. Westmoreland is asking for US$470 million. It is compensation to Westmoreland if the company’s claim was successful. However, in a recent NAFTA case.

What is more concerning than any potential payout is that Westmoreland’s suit could hinder efforts to implement similar plans to combat climate change in other jurisdictions.

“” is a phenomenon that has been observed in several jurisdictions around the world. A notable example is the decision of the until Australia won its . This delay of regulatory action — out of fear of expensive litigation — may have cost lives.

As recent and have demonstrated, delays in action to combat climate change can also be deadly.

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Kyla Tienhaara is a Canada Research Chair in Economy and Environment and an assistant professor in the School of Environmental Studies and the Department of Global Development Studies at ���˴�Ƭ.

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