AUSTIN (KXAN) — In a 5-4 ruling, the Texas Supreme Court said it cannot make a decision about whether the Electric Reliability Council of Texas can be sued because of a legal technicality, according to an opinion filed Friday.
ERCOT, the power grid operator, has faced lawsuits following February winter storms that left millions without power, some for days.
But this decision actually stems from a lawsuit leveled against ERCOT from 2016. Panda Power sued ERCOT and accused it of publishing “flawed or rigged” projections related to energy production demand. It claims because of that, it spent millions to build three plants, only to have one go bankrupt and the others experience “financial distress,” according to the lawsuit.
The Texas Supreme Court had originally been asked to provide a judgement that would, in part, clarify whether sovereign immunity applies to ERCOT and protects it from lawsuits. However, because of how the original case played out in the lower courts, the Texas Supreme Court can no longer weigh in.
“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,” wrote Justice Jeffrey S. Boyd in the opinion of the court. Four other justices joined his opinion, while the chief justice and three others disagreed with it and either wrote or joined dissenting opinions.
A trial court had entered a final judgement in the Panda case, which meant that any opinion the Supreme Court gave would be considered an “advisory opinion” and therefore wouldn’t be allowed under the law, Boyd wrote in his opinion.
Chief Justice Nathan L. Hecht strongly disagreed, writing, “the Court is simply wrong” and that the majority opinion’s reasons “lack merit.”
“All agree—the Court and the parties—that the trial court’s dismissal of the case did not moot the parties’ controversy. The parties have the same real disagreement they have always had. Both insist they still want an answer. And as circumstances would have it, the issue has become more important to the public because of the damage caused by loss of power in the winter storm, which many blame on ERCOT. Whether ERCOT is immune from suit is not a moot issue, not to the parties, not to the public,” Hecht wrote.
The attorney for several people and families who have sued ERCOT over the winter storms and the deaths that ensued released a statement.
“We are not surprised or disappointed that Supreme Court of Texas did not choose to weigh in on the sovereign immunity piece of the case before it. That leaves open the possibility for our claims to be heard, as they should be heard, by ‘The people of Texas!'” said attorney Larry Taylor in a statement.
He also said it’s important to remember the court ruled in a business dispute, but these cases involve personal injury, property damage and wrongful death.
“We sincerely hope ERCOT has heard from the people, the Texas legislature, and the courts, and understands these are problems in the system they need to address head-on and not hide behind sovereign immunity,” Taylor’s statement went on to say.