The question at issue is whether anyone can be sued, since at this point there are no defendants left.
The Texas Supreme Court revisited the deadly mass outages of the 2021 freeze on its fourth anniversary during a Wednesday hearing, which was well-timed as yet another cold front sweeps through Texas and strains the state’s at-times fragile power grid.
[…]
Lawsuits against most other sectors in the electricity supply chain — the gas producers, the electricity retailers and ERCOT itself — have been dismissed. That means the main path forward for thousands of Texans seeking billions of dollars in damages is suing the transmission and distribution utilities, which own the power lines and poles that deliver electricity.
Named in the combined lawsuits are CenterPoint Energy, the primary Houston-area utility; Oncor Electric Delivery, which serves the Dallas-Fort Worth areas and parts of West Texas; and AEP Texas, covering parts of South and West Texas.
A Houston court of appeals barred freeze victims from suing these utilities for negligence claims last April. But crucially, gross negligence and intentional misconduct claims, which allege a more severe degree of wrongdoing, were allowed to move forward. The utilities then appealed the Houston court of appeals’ decision to the Texas Supreme Court.
During Wednesday’s oral arguments in front of the Texas Supreme Court, Michael Heidler, representing the utilities, argued the companies shouldn’t be subject to liability under common law, which are laws that come from court decisions rather than legislation.
That’s because transmission and distribution utilities are already heavily regulated by ERCOT and the Public Utility Commission of Texas, and customers can complain about utilities to the PUC, Heidler said. He cited a 2003 case in which the Texas Supreme Court found that government regulations provided sufficient protections, so imposing common law wasn’t appropriate.
“This is a heavily regulated activity, and if there’s something that needs to happen differently, the PUC and ERCOT are well-equipped to tell us what to do, to change the regulations, to fix it,” Heidler said.
Ann Saucer, the lawyer representing Texans harmed by the 2021 freeze, said government regulation shouldn’t shield the utilities from the lawsuits. She argued that the three utilities failed to adequately “rotate” outages, which means outages should’ve cycled from neighborhood to neighborhood, as ERCOT had intended.
“(The utilities) could have rolled the blackouts so that one person has power for 45 minutes and then another person loses power for 45 minutes, and it rolls… (but) they left the switches off for people for days,” Saucer said. “They did that because they were consciously indifferent to people freezing to death.”
Prior to the 2021 freeze, ERCOT had told utilities to prepare to cut approximately 13 gigawatts of power in a “worst-case scenario,” Heidler said. But during the freeze, a maximum of 50 gigawatts of power capacity had to be cut, he said.
Heidler rebutted that it would’ve been “difficult, if not impossible” to cut that much power and rotate outages without damaging the grid. That’s because ERCOT requires that utilities maintain electricity to nuclear plants and prioritize other customers such as the military, law enforcement and public health communications facilities, he said.
Saucer has countered that utilities are partly responsible for that much power being lost, since they cut power to facilities needed to generate electricity.
See here and here for some background. The justices had skeptical questions for both sides, so it’s hard to say if either one had an advantage. Seems crazy to me that in the end after all that suffering and hundreds of deaths that literally no one might be held legally responsible, but that could happen. It’ll probably be a few months before we get a ruling.
It would have been kind of miraculous if natural gas producers and distributors had been held accountable in Texas. In Oklahoma the AG is amazingly still trying to sue for what are claimed to be artificially (100x) high gas prices during the storm.
It is my opinion that gas producers and pipeline operators likely caused artificial shortages to drive up prices and profits, which caused cascading effects of shutdowns and grid instability. The situation was handled poorly for us peons, since the Republican authorities were focussing on making the most money for the speculators rather than helping customers. The pipeline operators being sued in Oklahoma are the same ones that operate here. Since the lawsuits that would have uncovered the truth about what really happened have mostly been dismissed I doubt we will ever get any justice in this case.
The one of the main reasons that Republicans want an iron grip on government is so they can end all attempts at accountability when they use natural and unnatural disasters to get even more wealth for themselves and their campaign donors. Of course, they are screwing over their trumpy base every time they do this, but they know their voters are so dumb they won’t lose any votes.
“This is why I speak to them in parables, because seeing they do not see, and hearing they do not hear, nor do they understand.” Matthew 13:13 RSV
and we wonder we have triskaidekaphobiacs…
The more clever schemes carried out by gangland mobsters involved inserting themselves into payment flows so that they could collect a portion of the cash flow for themselves, which is referred to as a Mafia tax. These days it is the super-rich billionaires and so-called ‘private equity’ doing this same thing, getting into every possible common citizen transaction that they can, health care, rental properties, utilities, groceries- extracting more and more money for themselves, so us little people are paying more and more Mafia taxes to the Mafia of the rich every day. Of course they have used our money to buy politicians and judges just like the Mafia, so they can continue and expand their sleazy operations and their wealth without any impediments.
For the reasons behind the big freeze grid collapse of 2021, just follow the money. If you can.
The so-called “common law” is whatever the Texas Supreme Court says it is.
That mode of (case) law making includes, most notably, a systematic project to dismantle checks and balances (under the doctrinal fig leaf of separation of powers, though 2 of 9 dissented on the most recent expansion, See Webster v. Commission for Lawyer Discipline); ever more sweeping grants to “common law” immunities; and rampant proliferation of nonjusticiability doctrines such as standing to snuff out lawsuits early on and prevent lower courts from determining their merits.
The core concern with “common law” sovereign immunity indeed is this: To prevent government agents from being held accountable through lawsuits. It would be a nuisance for them (the OAG on their behalf) to have to defend those lawsuits on their merits, and it would cost money if people who were injured by government officials would have to be compensated. We can’t have that. We are the State. The people be screwed! And unsurprisingly quasi-public corporations want to get off the hook too.
The State Bar currently also protests that it is immune.
But high court immunization of favored constituencies isn’t’ all.
Recently, the Supremes adopted article III jurisdictional limitations from the federal courts and imposed them on state courts of general jurisdiction. Why is no one shocked? Probably because the vast majority doesn’t know what’s going on, the media don’t understand it, and the members of the legal community don’t dare to squeal lest they they get in trouble for “impugning the integrity” of the courts/judges, and get censored, suspended, or worse: End of legal career.
IMPORTING FEDERAL JURISDICTIONAL LIMITS
Article III of the U.S. Constitution limits the powers of federal courts. Those are courts of limited jurisdiction by design. We have, after all, a federal system. Texas district courts, by contrast, are courts of general jurisdiction and handle all the mundane litigation (all that doesn’t involve federal law and even some federal stuff where there is concurrent jurisdiction) … until the Texas Supremes judicially “repleaded” the open courts provision of the Texas constitution and blocked litigation against ever-expanding favored constituencies under the common-law immunity mantra.
Attorneys may object to the term “repealed”, so it might alternatively be called a gigantic loophole: Thanks to the Texas high court, the basic rule is this: Government entities and government agents are immune. Can’t be held legally accountable. Not by people like you and me.
The importation of the federal (no)standing doctrine marks another step toward emasculation of the state trial courts of general jurisdiction.
The rationale for this doctrinal move is specious: Why in the world should article III of the federal constitution apply to Texas state courts? The federal constitution doesn’t establish the structure of Texas state government and Article III of the Texas constitution isn’t even about the judicial branch. But the SCOTX is the court of last resort and can itself do whatever it wants. Who is going to stop them when they declare entire classes of actors immune from tort claims (and even contract claims) and strip Texas district courts or jurisdiction accordingly.
They hold absolute power to say what the “common law” is and with that also comes the power to bestow absolute immunity to favored constituencies based on their privileged status. Texas lawyers have been accorded exemption from tort liability too (“attorney immunity”), which gives them another reason to keep silent. They are judicial immunization beneficiaries themselves an thus coopted into the grand statewide immunization scheme.
Here is food for thought on the article III gambit to restrict lawsuits in Texas:
David Hutchison, “Standing in Texas: Exploring Standing Under the Original Meaning of the Texas Constitution.” 103 TEX. L. REV. 227 (2024)
https://texaslawreview.org/standing-in-texas-exploring-standing-under-the-original-meaning-of-the-texas-constitution/
Note that the Article III standing doctrine is distinct from common-law immunity based on the defendant’s status. But both doctrines serve the same purpose: jurisdiction stripping by fiat and preventing trial courts from deciding lawsuits on their merits.