Xcel Energy 2007 Annual Report Download - page 134

All of the gas trading lawsuits are in the early procedural stages of litigation. No trial dates have been set for any of
these lawsuits, however, defendants’ motions to dismiss are pending in the Missouri Public Service Commission matter,
and defendants’ summary judgment motions are pending in the Arandell, Breckenridge, Learjet, and J.P. Morgan matters.
Environmental Litigation
Comanche 3 Permit Litigation — In August 2005, Citizens for Clean Air and Water in Pueblo and Southern Colorado
and Clean Energy Action filed a complaint in Colorado state court against the CAPCD alleging that the division
improperly granted permits to PSCo under Colorado’s Prevention of Significant Deterioration program for the
construction and operation of Comanche 3. PSCo intervened in the case. In June 2006, the court ruled in PSCo’s favor
and held that the Comanche 3 permits had been properly granted and plaintiffs’ claims to the contrary were without
merit. Plaintiffs appealed the decision. In February 2008 the Colorado Court of Appeals affirmed the state court’s
decision.
Carbon Dioxide Emissions Lawsuit — In July 2004, the attorneys general of eight states and New York City, as well as
several environmental groups, filed lawsuits in U.S. District Court in the Southern District of New York against five
utilities, including Xcel Energy, to force reductions in CO2 emissions. The other utilities include American Electric
Power Co., Southern Co., Cinergy Corp. and Tennessee Valley Authority. The lawsuits allege that CO2 emitted by each
company is a public nuisance as defined under state and federal common law because it has contributed to global
warming. The lawsuits do not demand monetary damages. Instead, the lawsuits ask the court to order each utility to
cap and reduce its CO2 emissions. In October 2004, Xcel Energy and the other defendants filed a motion to dismiss
the lawsuit. On Sept. 19, 2005, the court granted the motion to dismiss on constitutional grounds. Plaintiffs filed an
appeal to the Second Circuit Court of Appeals. In June 2007 the Second Circuit Court of Appeals issued an order
requesting the parties to file a letter brief regarding the impact of the United States Supreme Court’s decision in
Massachusetts v. EPA, 127 S.Ct. 1438 (April 2, 2007) on the issues raised by the parties on appeal. Among other
things, in its decision in Massachusetts v. EPA, the United States Supreme Court held that CO2 emissions are a
‘‘pollutant’’ subject to regulation by the EPA under the Clean Air Act. In response to the request of the Second Circuit
Court of Appeals, in June 2007, the defendant utilities filed a letter brief stating the position that the United States
Supreme Court’s decision supports the arguments raised by the utilities on appeal. The Court of Appeals has taken the
matter under advisement and is expected to issue an opinion in due course.
Comer vs. Xcel Energy Inc. et al. — In April 2006, Xcel Energy received notice of a purported class action lawsuit filed
in U.S. District Court in the Southern District of Mississippi. The lawsuit names more than 45 oil, chemical and
utility companies, including Xcel Energy, as defendants and alleges that defendants’ CO2 emissions ‘‘were a proximate
and direct cause of the increase in the destructive capacity of Hurricane Katrina.’’ Plaintiffs allege in support of their
claim, several legal theories, including negligence and public and private nuisance and seek damages related to the loss
resulting from the hurricane. Xcel Energy believes this lawsuit is without merit and intends to vigorously defend itself
against these claims. In August 2007, the court dismissed the lawsuit in its entirety against all defendants on
constitutional grounds. In September 2007, plaintiffs filed a notice of appeal to the Fifth Circuit Court of Appeals. The
Court of Appeals has taken the matter under advisement and is expected to issue an opinion in due course.
Employment, Tort and Commercial Litigation
Bender et al. vs. Xcel Energy — In July 2004, five former NRG officers filed a lawsuit against Xcel Energy in the U.S.
District Court for in Minnesota. The lawsuit alleges, among other things, that Xcel Energy violated the Employee
Retirement Income Security Act (ERISA) by refusing to make certain deferred compensation payments to the plaintiffs.
The complaint also alleges interference with ERISA benefits, breach of contract related to the nonpayment of certain
stock options and unjust enrichment. The complaint alleges damages of approximately $6 million.
In May 2006, the court granted Xcel Energy’s motion for summary judgment in full and denied the plaintiffs’ motion
for summary judgment in full. On Oct. 29, 2007, the Eighth Circuit Court of Appeals affirmed the district court’s
dismissal of plaintiff’s lawsuit.
Siewert vs. Xcel Energy — In June 2004, plaintiffs, the owners and operators of a Minnesota dairy farm, brought an
action in Minnesota state court against NSP-Minnesota alleging negligence in the handling, supplying, distributing and
selling of electrical power systems; negligence in the construction and maintenance of distribution systems; and failure
to warn or adequately test such systems. Plaintiffs allege decreased milk production, injury, and damage to a dairy herd
as a result of stray voltage resulting from NSP-Minnesota’s distribution system. Plaintiffs claim losses of approximately
$7 million. NSP-Minnesota denies all allegations. After its motion to dismiss plaintiffs’ claims was denied,
NSP-Minnesota filed a motion to certify questions for immediate appellate review. In October 2007 the court granted
NSP- Minnesota’s motion for certification, and the parties have filed briefs on appeal.
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