The Supreme Court of Texas has dismissed a lawsuit by 13 Panda power companies that was filed against the Electric Reliability Council of Texas (ERCOT). While the lawsuit dates back to electric and power questions from around 2011, the complaint also tested the ability to file suit against ERCOT, which insisted it was protected through immunity.
Because the complaint was dismissed, the question of whether ERCOT can be sued was not answered, meaning it is still not clear whether ERCOT can be held legally liable for damages resulting from last month’s bone-chilling winter storms.
While the initial lawsuits have nothing to do with last months storms, they ironically were filed over the need for power back in 2011 and 2012. ERCOT had issued a forecast claiming the state needed more energy, a report that prompted Panda to invest $2.2 billion in new power stations in Sherman and Temple. ERCOT later revised the report, saying the extra power was not necessary. The new report prompted the lawsuit by Panda.
The court split 5-4, with Justice Jeffrey S. Boyd writing for the majority. The ruling followed the logic that prior legal action held the reason for the appeal unnecessary.
“Because the trial court’s interlocutory order merged into the final judgment and no longer exists, we cannot grant the relief the parties seek.” the opinion reads. “However much we may desire to provide answers in these now moot interlocutory proceedings, the constitution prohibits us from doing so, and we must respect that prohibition. We must therefore dismiss both the petition for writ of mandamus and the petition for review for want of jurisdiction.”
“The Texas Supreme Court had an opportunity in this case to just make a statement over whether ERCOT can be sued.” said attorney Ed Klein, legal analyst for KRLD News. “They had this golden opportunity and it’s like they just passed over it.”
The storm damage, while not mention in Boyd’s opinion, was raised in a dissenting opinion by Chief Justice Nathan Hecht.
“… the public stakes are high too. After Winter Storm Uri last month, the public also wants to know whether ERCOT can be sued. Will ERCOT be immune to claims against it for failing to prevent the power outages across Texas that not only crippled millions of users but resulted in water outages that were at least as bad, if not worse? The answer to the immunity issue in this case has become perhaps more important to the public than even to the parties. The parties want to know. The public wants to know. The Court refuses to answer.” the dissenting opinion read.
The lack of direction is likely to delay storm-related lawsuits by years, as the High Court will eventually have to answer the immunity question before legal action can be settled.
Joining Boyd in the majority opinion were Justices Jimmy Blalock, Brett Busby, Jane Bland and Rebeca Aizpuru Huddle.
Hecht was joined in his dissent by Justices Eva Guzman, Debra Lehrmann and Phillip Devine.