Xcel Energy 2008 Annual Report Download - page 151

prime, inc. and Xcel Energy Inc. et al.; Arandell vs. e prime, Xcel Energy, NSP-Wisconsin et al. and Hartford Regional
Medical Center vs. e prime, Xcel Energy et al. Many of these cases involve multiple defendants and have been transferred
to Judge Phillip Pro of the United States District Court in Nevada, who is the judge assigned to the Western Area
Wholesale Natural Gas Antitrust Litigation.
In April 2005, Judge Pro granted defendants’ motion to dismiss in Texas-Ohio Energy based upon the filed rate
doctrine. Based upon this same legal doctrine, Judge Pro subsequently granted defendants’ motion to dismiss in
Fairhaven Power Company, Ableman Art Glass and Utility Savings and Refund Services. Plaintiffs subsequently appealed
these dismissals to the U.S. Court of Appeals for the Ninth Circuit. In September 2007, the Court of Appeals reversed
the dismissal and remanded the lawsuits to Judge Pro for consideration of whether any of plaintiffs’ claims are based
upon retail rates not directly barred by the filed rate doctrine. e prime and some other defendants were dismissed from
the Breckenridge Brewery lawsuit in February 2008, but Xcel Energy remains a defendant in that lawsuit and e prime
Energy Marketing was added as a defendant in February 2008.
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’ summary judgment motions are pending in the Learjet and J.P. Morgan matters. In
January 2009, the parties reached a settlement agreement in principle in the Abelman Art Glass, Ever Bloom, Fairhaven
Power Company, Texas-Ohio Energy, and Utility Savings and Refund Services cases. The terms of the settlement in
principle will not have a material financial effect upon Xcel Energy. Per court order, discovery in most of the remaining
cases must be completed by Sept. 5, 2009. Trial for all cases venued in Nevada will likely be set for late 2009 or early
2010.
In November 2007, the Missouri Public Service Commission case was remanded to Missouri state court. On Jan. 13,
2009, the Missouri state court granted defendants’ motion to dismiss plaintiff ’s complaint for lack of standing.
Environmental Litigation
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 U.S. Court of Appeals for the Second Circuit. In June 2007 the 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 CAA. In July 2007, in response to the request of the Court of Appeals, 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 U.S. Court of Appeals for the Fifth
Circuit. Oral arguments were presented to the Court of Appeals on Aug. 6, 2008. Pursuant to the court’s order of
Sept. 26, 2008, re-argument was held on Nov. 3, 2008. No explanation was given for the order. The Court of Appeals
has taken the matter under advisement.
Native Village of Kivalina vs. Xcel Energy Inc. et al. — In February 2008, the City and Native Village of Kivalina,
Alaska, filed a lawsuit in U.S. District Court for the Northern District of California against Xcel Energy and 23 other
utilities, oil, gas and coal companies. The suit was brought on behalf of approximately 400 native Alaskans, the Inupiat
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