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Water Footprints
Their Impact On, And From, Corporate Reporting
NJWEA 96th Annual Conference
Issues of Emerging Concern
Re-Evaluating Reuse
May 12, 2011
David Restaino, Esq.
Fox Rothschild LLP
Water and its Regulation
 Surface
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Water
Flooding and Stream Corridors
Wetlands
Controlling Discharges into Streams
 Ground
Water
 Water Supply / Water Intake
 Wastewater
 Habitat
Some Regulatory Goals
 Clean
and plentiful drinking water
 Water for industry / water from industry
 Groundwater recharge
 Coastal flood protection, flood storage,
unobstructed flow
 Protect plants and critters
 No adverse impact from one property
owner upon another … no “water wars”
Climate Change Conceptual Concerns
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The Climate Change Debate
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“Unequivocal Proof” (2007 UN Report)
“Hottest Year in the Hottest Decade” (Climate Progress, 7/28/10)
“Your unsupported findings … threaten to usurp state
enforcement authority[.]” (8/2/10 letter from Texas to USEPA)
Scientific Concerns (accurate data, etc.)
Potential Solutions
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Government action
Private investment
• Public and private contractors
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Corporate policies
Act local, think global
Potential Solutions
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Private investment
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Corporate policies
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Securities & Exchange Commission (SEC) Guidance
Sustainability and ISO 26000 (Guidance on Social Responsibility)
Act Local, Think Global
Call in the Lawyers
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Public and Private Contractors
Litigation
Challenge the Regulations
Not “If” But “How”
Government action
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Regulation
Government Energy Usage
Government & Other Action
In Response To Climate Change
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United Nations, global & regional initiatives
 American Recovery & Reinvestment Act of 2009
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Clean energy incentives
USEPA Greenhouse Gas Regulations
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Endangerment finding … upheld in court
Tailoring Rule … under attack
USEPA permit requirements … will states acquiesce?
State action – varied
 Private action – “nuisance” lawsuits, etc.
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Enough About Air …
… What about Water?
Water Footprints &
Corporate Policies
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How We Got Here
 Securities and Exchange Commission (SEC)
Guidance (Feb. 2010)
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For Publicly Traded Corporations
• Shareholder Lawsuits
• Internal Management
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Track and Disclose Climate Change Impacts
Air and Water and ?
Water Risk Component
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Discharges
Supply
SEC Guidance
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Disclosure of Water Footprint and the Financial Impact
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Regulatory exposure … and opportunity
Volume used
Resource cost & availability
Recharge, and volume remaining
Salt-water intrusion
Discharge
Weather
Sea-level rise
Risk to facilities
Lawsuits
Insurance coverage
Financial implications
SEC Guidance
 Thorough Assessment
of a Complete
Water Footprint
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Information readily available
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Actual data
Modeling data
Statistical analysis of data
Future predictions
Calculating the financial impact, or, disclosing
why the impact can’t be quantified
Is the impact “material”?
Sustainability
and ISO 26000
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ISO 26000 - Guidance on Social Responsibility
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Publication – November 1, 2010
Guidelines, Not Requirements
Intended for Application to Organizations and Their
Sphere of Influence
Social Responsibility
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Human Rights
Labor Practices
The Environment
Fair Operating Practices
Consumer Issues
Community Involvement & Development
ISO 26000
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Defines The Environment as a Core Subject,
and Goes Beyond Laws & Regulations
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Precaution – Scientific Uncertainty is No Excuse For
Postponing Cost-Effective Measures
Risk Management – Use a Sustainability Perspective,
Including in Procurement
“Polluter Pays” – Costs of Activities, Products and
Services
Life-Cycle Thinking – Use Sustainable Resources
Climate Change – Mitigation and Adaptation
Marketplace impact?
SEC and ISO
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How Much Difference Will These Make?
Different Areas, Same Concepts
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Contracts
Will Help Reduce Water Footprints
Performance and Performance Metrics
• Necessary to measure the benefit
• Who measures?
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Time / Cost
Incentives
Maintenance
• How to maintain the benefits gained; no back-sliding
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Insurance
Sustainability Reporting
 2009
Sustainability Reporting of the
World’s Largest Pharma Companies
(Roberts Environmental Center)
• Scored companies in the pharma sector
• Top scorers: extensive reports & web disclosure
• Low scorers: rarely mention corporate
responsibility
• Some correlation between score & annual revenue
Sustainability Reporting
 Environmental
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categories include:
Emissions to water
Energy
Recycling
Waste water released and/or recycled
“Green” purchasing
Water Footprints
& Corporate Policies
 Flowing
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up the “Supply Chain”
Supply Chain agreements
 Trickling
Down into Distribution
 Investor & Financing Agreements
 Impact on Suppliers and Distributors
 Global Impact?
Practicalities of
Coordinating a Solution #1
 Contracts
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Experience
Guaranteed Performance?
Time and Cost
• How Much? How Long?
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Performance Metrics / Measuring
Performance
• Certifications, gallons saved, etc.
Practicalities of
Coordinating a Solution #2
 Post-Construction
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Issues
Maintenance
• Who monitors, moving forward?
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Legal Compliance
• Who is “legally responsible”?
Sustainability
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Global Thinking … Local Action?
Planning
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Accounting for Climate Change in Local Land Use
Decisions … for example, water infrastructure
projects
Addressing Sustainability in Leases & Contracts
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Defining Objectives / Guarantees
Performance Metrics
Certifications and Proofs
Maintenance
Insurance
Confidentiality
Final Pieces to
Coordinating a Solution?
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Insurance Portfolio
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Can Insurance Help “Backstop” Performance?
Construction, General Liability, Professional Liability,
Pollution Coverage, Green Upgrades / Rebuilds
Exclusions, Primary v. Excess Coverage, Additional
Named Insured
Claims-Made or Occurrence-Based
Coverage Amount
Will We See New Insurance Products?
Services Industry … Contractors
 Uncertainties … Lawsuits, Elections
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Contact Information
David Restaino, Esq.
Fox Rothschild LLP
609.895.6701
[email protected]