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Texas power plants have no responsibility to provide electricity in emergencies, judges rule

Almost three years since the deadly Texas blackout of 2021, a panel of judges from the First Court of Appeals in Houston has ruled that big power companies cannot be held liable for failure to provide electricity during the crisis. The reason is Texas’ deregulated energy market.

The decision seems likely to protect the companies from lawsuits filed against them after the blackout. It leaves the families of those who died unsure where next to seek justice.

In February of 2021, a massive cold front descended on Texas, bringing days of ice and snow. The weather increased energy demand and reduced supply by freezing up power generators and the state’s natural gas supply chain. This led to a blackout that left millions of Texans without energy for nearly a week.

The state has said almost 250 people died because of the winter storm and blackout, but some analysts call that a serious undercount.

LostWon ,

Yikes. You’d think in a place where they know they will have extraordinary weather events, they would legislate special requirements to ensure everyone’s safety.

Incidentally, I first heard about this saga when I saw a report a while ago about people being scammed by solar panel grifters (who overcharge for installing systems that provide little to no independence from the grid despite making those claims in their ads).

DoomBot5 ,

It’s a good opportunity to remind people: solar panels without a grid disconnect and/or a battery are not independent of the grid. The utility company will shut them off while the power is out.

KingThrillgore ,
@KingThrillgore@lemmy.ml avatar

Man, Texas is a real shithole

HiddenLayer5 ,

Second only to the lack of responsibility that Texan judges have.

BrianTheeBiscuiteer ,

Let me guess, if I don’t like it I’m free to start my own power generation company, in a city that’s had only one provider for over 60 years.

Maggoty ,

Oh no that’s California. In Texas there’s 500 providers and no service.

recapitated ,

Is there legislation that says otherwise? What should the judges do here?

archomrade ,

AFAIK it wouldn’t be legislation, it would be damages paid for some kind of breach of contract or some other contract-related issue, since the city delegated energy management to private companies. I’m sure there may be some contractual relationship with the city as well as the customers, but it’s not clear to me what type of contractual basis for damages this would amount to.

I suppose it could be gross negligence for not taking reasonable measures to prevent that kind of catastrophic failure, but honestly the standard of care would seem hard to establish. Still, a week without power seems excessive even by extreme weather standards.

Not saying this ruling doesn’t suck, just that it seems legally kind of ambiguous.

charonn0 ,
@charonn0@startrek.website avatar

Deregulating the electricity industry has been a complete and utter disaster.

Melatonin ,

Cops don’t have to serve and protect or abide by the law. Power companies don’t have to supply power. People who sell you things can deny you access to them.

Hey this is fun, let’s do more!

RGB3x3 ,

Health Insurance companies don’t have to provide payment for health services you pay them to cover.

StopSpazzing ,
@StopSpazzing@lemmy.world avatar

The more and more I hear about these terrible decisions made in Texas, no exception abortion (even if medically deemed necessary) and now this, the more and more I am grateful I don’t live in that trainwreck state.

UncleGrandPa ,

A recent study showed that Texans have the least personal freedom of any state

Caradoc879 ,

Oh the irony

Twelve20two ,

In the opinion, Justice Adams noted that, when designing the Texas energy market, state lawmakers “could have codified the retail customers’ asserted duty of continuous electricity on the part of wholesale power generators into law.”

Wow, so helpful to say that 20 years after the fact

Adubya ,
@Adubya@lemmy.world avatar

So bizarre, you’d think there would be some implicit realities of what is constituted by contracting for grid load power generation & even peaker plants. The grid has to be maintained to function and can’t lose frequency even if that does mean shedding there should be key named emergency services that should be maintained that would warrant liability on power generators. This is all upside with little cost or risk & also why there was no effort to coordinate because nobody is responsible.

DreamlandLividity ,

As I understood it, critical circuits like hospitals were being prioritized and being kept (mostly?) online.

But house heating is generally not on a different circuit. They would normally rotate the houses which are blacked out so they would at least have power some of the time but this one was so bad all the power went into the priority circuits (like hospitals).

wizzor ,

I agree with the problem, but I also kind of agree with the judge. The point of separation of powers is that the judicial system interprets the will of the legislative. We have had similar cases in Finland , where the law clearly should say one thing and the courts conclude that the law in fact says another thing. Fortunately, this situation occasionally leads the parliament into saying ‘well fuck’ and changing the law.

I will admit I don’t really understand the role of courts making law in the US and other common law countries, so it might be different there.

Theharpyeagle , (edited )

It’s a tough spot because most people, and maybe legislators themselves, didn’t think they had to write down “power companies must provide power to the best of their ability” and whatever other legalese that would force companies to do something about winterization. It feels like there should be an implicit “hey, if you’re aware of an issue that might kill people and destroy homes, maybe try to fix it.” The new laws around winterization are little comfort to those who have already lost loved ones to an avoidable problem. Of course, then you have litigious idiots who will sue because the tractor company didn’t say you shouldn’t try to play jumprope with the harvester blades. I don’t know what the solution is there, it seems we can only really be reactive.

Well, I guess the saying “regulations are written in blood” didn’t come from nowhere.

DreamlandLividity , (edited )

Well, they were providing it “to the best of their abilities”. With those maxed out prices, they were sure as hell trying to squeez out every kilowatt. Their abilities just sucked due to underinvsetment in reserve capacity. But you can hardly blame them for that. Unlike in most states, they don’t get paid for reserve capacity in Texas (and are not required to have any either). Therefore, whichever power company invests in it will have to raise prices, become uncompetitive and go bankrupt. Its not the companies to be blamed, its the politicians/officials who set up Texas electricity market like that. Capitalism can’t work if you don’t set up and regulate markets to align consumer and public incentives with company incentives.

I recommend practical engineerings video for technical details.

Misconduct ,

Nah. Thanks for the info but I’m totally fine with blaming both the government and the shady utility company.

DreamlandLividity , (edited )

I mean, if it really is shady then blame away. I am just saying you can’t blame a company for not paying out of their own pocket for something the government should have secured.

It would be literally illegal for a corporation to do that. (breach of fedutiary duty, corporations are required by law to make as much profit for investors as they legally can. I am oversimplifying incredibly but it is mostly true)

Theharpyeagle , (edited )

It’s not just about reserve capacity, ERCOT was warned about insufficient winterization after the last power grid failure due to cold weather, they just didn’t act on it. Should the Texas government have mandated improvements at that time? Absolutely. Do I still believe that ERCOT has at least some blood on their hands because they knew about the problem and chose not to fix it despite the hardship it could cause their customer base? Absolutely.

Also I have seen the practical engineering video, love that guy.

DreamlandLividity ,

Unless I am missing something, ERCOT is a distributor. They don’t own the power plants and would have hard time forcing power plant owners to make those improvements without government mandate, no? Or does ERCOT already make similar regulations for plants?

Theharpyeagle ,

My understanding is that ERCOT manages the reliability of the entire grid. I won’t pretend to understand the exact nature of their purview and powers, but I’ll defer to what Abott describes as their role in this incident:

Five days before the winter storm hit Texas, Abbott said ERCOT ensured officials that the power generator was prepared for the cold temperatures, and even issued notices to power plants to ensure they were winterized properly.

And the statement from ERCOT

ERCOT officials have said that some power generators implemented new winter practices after the freeze a decade ago, but they were voluntary.

Admittedly, I don’t know the extent of ERCOTs control over the individual companies that manage the generators or infrastructure of the power grid, but it does appear they had enough oversight to claim that the grid could weather another storm, which it could not.

Source: www.texastribune.org/…/greg-abbott-winter-storm/

DreamlandLividity ,

Well, even if they had no power to do anything, saying things have been fixed and are fine should make them liable. How should anyone (legislature, public) work on fixing the issue if they hide it? They should be the ones raising the issue in the first place.

frezik , (edited )

The one time I remember something like that happening in the US was the 2003 Do Not Call telemarketing act. There was a court case that concluded that Congress had not properly authorized regulators to enforce the Do Not Call registry. Congress then took a day or two to pass a new law authorizing the thing they forgot to the first time.

This comes down to two things:

  • Americans really, really hate taking telemarketing calls, regardless of party affiliation
  • The telemarketing industry didn’t have significant lobbying at the time to tell anyone in Congress to argue against it
Coasting0942 ,

Phew. Worried this could lead to overturning that cops have no duty to protect you.

If you don’t like the service you’re getting then just vote in new leaders who can change things /s

xX_fnord_Xx ,

Thankfully nobody in their right mind chooses to live in this state, those that remain were born with a death wish, or since sort of moral ambiguity to life.

Coasting0942 ,

Supreme Court: How expensive could it possibly be to sue a utility for breach of contract? $10?

wishthane ,

Or they just can’t leave for one reason or another – moving is tough

Etterra ,

Texas power plants have no responsibility to provide electricity save lives in emergencies, judges rule <- FTFY

After all, why should they care if you suffer or die? There’s plenty more where you came from.

clutchmatic ,

The judge just said that the lawmakers who wrote the law and were elected by the people to do that writing didn’t consider electricity as a requirement of the people they represented

xX_fnord_Xx ,

Fucking Christ, did the judge calculate the amount of legally harvestable cord wood on their property as well?

xX_fnord_Xx ,

Not angry at the posters for sharing facts, I’m just Angered by them.

TropicalDingdong ,

First world, third world, and Texas.

MataVatnik ,
@MataVatnik@lemmy.world avatar

Texas is a shithole, and even more insufferable are the Texan nationalists. It’s funny from a distance, but being there not so much.

Illuminostro ,

fmstrat ,

Hot take: The ruling is accurate.

Vote for candidates who privatize utilities. Get what you vote for.

Only sucks for those that can’t leave and are stuck with a system they can’t correct.

CaptainProton ,

How can a power company realistically be compelled to provide power, in an emergency? They cannot guarantee that any more than a police officer can guarantee their ability to protect you.

Such a law could only be there to create scapegoats for politicians to hang after they botch the response to a natural disaster or some minor event that significantly disrupts power distribution.

hobbicus ,

IMO it should be less about compelling them during an emergency as ensuring adequate disaster preparation and grid stability well before an emergency. Not much to do once the damage is already done other than figure out how to ensure it won’t happen again.

Friendly reminder about the event in question: the temperature wasn’t even THAT cold (minimum 0F IIRC). Much of the world deals with ice storms and freezing temperatures without the entire grid failing. I understand a state that deals with heat more than cold being less prepared for ice, but the lesson should need to be learned only once.

GreyEyedGhost ,

Of course, the problem as well as the solution was already recognized - distributed systems to provide redundancy. That would require being regulated nationally, which is far worse for them than some people dying.

hansl ,

SLOs and SLAs are a thing. And yes, they do and can guarantee power to enterprises that pay for it. So it’s not a matter of “if” but, like all things Texans, “how much”.

sixCats ,

This exact problem is systematised in software and other infrastructure regions. Even hospitals for example have backup generators.

The problem is that power companies making resilient grids eats into their profits and so they won’t do it unless they’re compelled to

banneryear1868 ,

Power companies don’t make grids its the independent operator, in Texas’ case ERCOT, who reported on this potentiality many times but did not receive direction to require facilities to cold proof their gas infrastructure or mediate the risk through gas storage etc. The power companies can’t be held liable for what wasn’t required of them and the regulator can’t because they publicized the risk and recommended it. Ultimately it’s the government at fault.

fmstrat ,

I’m on board with this. It goes to my original coment, though. It’s not just the government’s fault. It’s the people’s fault for electing them.

banneryear1868 ,

This is the same for other jurisdictions as well, it’s just that emergency situations will be investigated. The northeast blackout is another use case in North America and it happened in August so things were much different. We’ve had ice storms that took out transmission infrastructure too. Ultimately the regulator in Texas case actually reported on these risks and recommended changes to regulations.

CurlyMoustache ,
@CurlyMoustache@lemmy.world avatar

Capitalism 👌

Illuminostro ,

Absolutely. Protecting profits and shareholders is priority #1.

GOP: “Cry more, peasants.”

PM_Your_Nudes_Please ,

As one of those people who is stuck in the system I can’t correct: I agree.

I had to shit in grocery bags for a week because my toilet was frozen solid. But the blame only partly lies on the power companies. The vast majority of the blame lies on the regulatory agency who had the opportunity to require winterized gear for power plants… And repeatedly refused to do so.

Companies will always choose the cheapest option for whatever market they’re in. And winterizing all your gear is expensive when compared to… Well… Not. Could they have taken the initiative and winterized anyways? Absolutely. But if there’s one thing humans are generally really really bad at, it’s emergency preparedness. Because nobody wants to spend a ton of money building an earthquake-resistant home until after they experience their first earthquake. But that’s why building codes exist, to ensure everyone is forced to build to a minimum safe standard. To use this same metaphor, the building codes didn’t require winterized gear, so the companies didn’t build winterized gear. The fault primarily lies with the people who wrote the building codes, while knowing full well that the area could and would experience winter weather.

ERCOT is the regulatory agency that set those standards, and ERCOT is the agency that refused to require winterized gear. It wouldn’t be fair to penalize the power companies for failing to provide power, when ERCOT should have ensured their facilities were adequately prepared. It would also set a weird precedent to require companies to provide something in a disaster. Yes, they’re utility companies, and are subject to more regulation than most. But does this also mean they could be penalized for downed power lines during a tornado, or for blown transformers during a hurricane flood in Houston?

Pulptastic ,

That would take away their liberties!

quicksand ,

Right, but also power delivery shouldn’t be privatized at all. Sure the energy providers might not technically be at fault, but having a corporate middle man providing an essential service is ridiculous. We shouldn’t be talking about electricity providers as corporate entities at all. But you are still technically correct

fmstrat ,

I’m sorry you had to go through that, and even more sorry your vote isn’t joined by others in greater numbers.

just_change_it ,

Better pull up those bootstraps and start finding your own individual source of power. Maybe you can drill for oil in your backyard?

TechyDad ,
@TechyDad@lemmy.world avatar

But don’t do this by installing solar panels. That’s “woke!”

hobbicus ,

Then once you strike oil find out you never owned the mineral rights to begin with ¯*(ツ)*/¯

someguy3 ,

During the storm one iirc Republican Texan politician said something along the lines of “you people need to solve it yourself”. They bought hard into private market solves everything.

31337 ,

It was Tim Boyd. He called the people complaining “socialists,” lol.

someguy3 ,

[People want electricity.]

“Is this socialism?”

But pretty sure the one I’m thinking of was a woman.

nightofmichelinstars ,

Don’t stop paying big power. Just ready yourself to die quietly when you’re supposed to.

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