NICHOLAS CONFESSORE, The New York Times, August 28, 2008
One of the country’s largest builders of coal-fired power plants will give investors detailed warnings about the risks that global warming poses to its business under a deal with New York’s attorney general.
The agreement Wednesday between the attorney general, Andrew M. Cuomo, and the company, Xcel Energy of Minneapolis, is the first of its kind in the country. It could open a broad new front in efforts by environmental groups to pressure the energy industry into reducing emissions of the greenhouse gases that contribute to global warming.
Until now, advocates have largely relied on shareholder resolutions as a way of pushing the companies to reduce their carbon dioxide output and invest more aggressively in renewable energy sources like wind or solar power.
That effort has picked up pace, according to Ceres, a coalition of investors and environmental groups, with dozens of shareholder resolutions filed during the 2008 financial reporting season.
“This really takes it another step, by making it a settlement agreement that should have an impact across the industry,” said Dan Bakal, the director of electric power programs at Ceres.
Mr. Cuomo subpoenaed Xcel and four other companies last September, seeking to determine whether their efforts to build new coal-fired power plants posed risks not disclosed to investors, like future lawsuits or higher costs to comply with possible regulations restricting carbon emissions.
The attorney general’s office is still negotiating with the four other companies — the AES Corporation, Dominion, Dynergy and Peabody Energy. But Mr. Cuomo hopes that the agreement will help persuade other companies to follow in the footsteps of Xcel, which supplies natural gas and electricity to customers in eight states. Among utilities, Xcel is one of the nation’s largest producers of greenhouse gases and a major provider of wind energy.
Many coal-fired power plants have been proposed or are under construction across the country and environmental advocates have made it a priority to reduce their impact.
“This landmark agreement sets a new industrywide precedent that will force companies to disclose the true financial risks that climate change poses to their investors,” Mr. Cuomo said in a statement. “Coal-fired power plants can significantly contribute to global warming, and investors have the right to know all the associated risks.”
The agreement represents another novel use by Mr. Cuomo of the Martin Act, a powerful tool that allows the attorney general to bring criminal as well as civil charges. Mr. Cuomo’s predecessor, Eliot Spitzer, used the law to vastly expand the office’s investigations of suspected Wall Street malfeasance.
Now Mr. Cuomo has turned it into a de facto form of environmental enforcement, too. For energy companies, including those based far from New York, he is able to claim jurisdiction because they issue securities on Wall Street.
The agreement with Xcel requires the company to analyze the likely effects on its business of current and future legislation or regulations in the states and countries where it operates and to disclose that information in its investor filings with the Securities and Exchange Commission.
Congress and many states are considering global warming legislation. Ten states stretching from Maryland to Maine, including New Jersey, New York and Connecticut, have struck a deal to cap emissions and allow trading of pollution allotments among producers.
Under the agreement with Mr. Cuomo, Xcel will disclose the financial risks of lawsuits and of federal or state court decisions that would affect its business. The company will also analyze and disclosed the “material financial risks” to itself associated with global warming, like drought — coal plants are prodigious users of water — or rising sea levels.In a statement, the chairman of Xcel, Richard C. Kelly, said the company had already voluntarily reduced carbon emissions and planned to continue to do so.
“We previously provided detailed information concerning the expected impact of climate change and greenhouse gas emissions regulations on our operations, and under this agreement we will make even more detailed disclosures,” Mr. Kelly said. “This agreement will enhance our already aggressive efforts to be responsible environmental stewards.”
Xcel officials said their reductions of greenhouse gases had totaled 18 million tons since 2003. They added that the company planned to build an additional 6,000 megawatts of renewable energy generation by the end of the next decade.
Justin McCann, an energy analyst at Standard & Poor’s, said that the company had included more detailed information on climate change risks in its most recent filing, since Mr. Cuomo’s investigation began. But the new agreement will require even more disclosure, he said, and probably encourage other companies to follow suit.
“Utility lobbies are very strong, but they have read the writing on the wall in terms of greenhouse gas reductions,” Mr. McCann said. “They know it is extremely popular with the public, and so they have wanted to get ahead of the curve, so they can have some input.”
But some of the companies that Mr. Cuomo scrutinized might be less amenable to adopting the new requirements than others. When Mr. Cuomo issued his subpoenas last year, Vic Svec, a spokesman for Peabody Energy, described the attorney general’s inquiry as “outrageous” and suggested that Mr. Cuomo’s use of the Martin Act was a form of legal harassment.
Reached Wednesday, Mr. Svec said: “We’re confident that our disclosures around CO2” — carbon dioxide — “have been and continue to be adequate.”