Coal ash more radioactive than nuclear waste

By Scientific American


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The popular conception of nuclear power is straight out of The Simpsons: Springfield abounds with signs of radioactivity, from the strange glow surrounding Mr. Burn's nuclear power plant workers to Homer's low sperm count. Then there's the local superhero, Radioactive Man, who fires beams of "nuclear heat" from his eyes. Nuclear power, many people think, is inseparable from a volatile, invariably lime-green, mutant-making radioactivity.

Coal, meanwhile, is believed responsible for a host of more quotidian problems, such as mining accidents, acid rain and greenhouse gas emissions. But it isn't supposed to spawn three-eyed fish like Blinky.

Over the past few decades, however, a series of studies has called these stereotypes into question. Among the surprising conclusions: the waste produced by coal plants is actually more radioactive than that generated by their nuclear counterparts. In fact, fly ash — a by-product from burning coal for power — contains up to 100 times more radiation than nuclear waste.

At issue is coal's content of uranium and thorium, both radioactive elements. They occur in such trace amounts in natural, or "whole," coal that they aren't a problem. But when coal is burned into fly ash, uranium and thorium are concentrated at up to 10 times their original levels.

Fly ash uranium sometimes leaches into the soil and water surrounding a coal plant, affecting cropland and, in turn, food. People living within a "stack shadow" — the area within a half- to one-mile (0.8- to 1.6-kilometer) radius of a coal plant's smokestacks — might then ingest small amounts of radiation. Fly ash is also disposed of in landfills and abandoned mines and quarries, posing a potential risk to people living around those areas.

In a 1978 paper for Science, J. P. McBride at Oak Ridge National Laboratory (ORNL) and his colleagues looked at the uranium and thorium content of fly ash from coal-fired power plants in Tennessee and Alabama. To answer the question of just how harmful leaching could be, the scientists estimated radiation exposure around the coal plants and compared it with exposure levels around boiling-water reactor and pressurized-water nuclear power plants.

The result: estimated radiation doses ingested by people living near the coal plants were equal to or higher than doses for people living around the nuclear facilities. At one extreme, the scientists estimated fly ash radiation in individuals' bones at around 18 millirems (thousandths of a rem, a unit for measuring doses of ionizing radiation) a year. Doses for the two nuclear plants, by contrast, ranged from between three and six millirems for the same period. And when all food was grown in the area, radiation doses were 50 to 200 percent higher around the coal plants.

McBride and his co-authors estimated that individuals living near coal-fired installations are exposed to a maximum of 1.9 millirems of fly ash radiation yearly. To put these numbers in perspective, the average person encounters 360 millirems of annual "background radiation" from natural and man-made sources, including substances in Earth's crust, cosmic rays, residue from nuclear tests and smoke detectors.

Dana Christensen, associate lab director for energy and engineering at ORNL, says that health risks from radiation in coal by-products are low. "Other risks like being hit by lightning," he adds, "are three or four times greater than radiation-induced health effects from coal plants." And McBride and his co-authors emphasize that other products of coal power, like emissions of acid rain–producing sulfur dioxide and smog-forming nitrous oxide, pose greater health risks than radiation.

The U.S. Geological Survey (USGS) maintains an online database of fly ash–based uranium content for sites across the U.S. In most areas, the ash contains less uranium than some common rocks. In Tennessee's Chattanooga shale, for example, there is more uranium in phosphate rock.

Robert Finkelman, a former USGS coordinator of coal quality who oversaw research on uranium in fly ash in the 1990s, estimates that for the average person the by-product accounts for less than 0.1 percent of total background radiation exposure. According to USGS calculations, buying a house in a stack shadow — in this case within 0.6 mile (one kilometer) of a coal plant — increases the annual amount of radiation you're exposed to by a maximum of 5 percent. But that's still less than the radiation encountered in normal yearly exposure to X-rays.

So why does coal waste appear so radioactive? It's a matter of comparison: The chances of experiencing adverse health effects from radiation are slim for both nuclear and coal-fired power plants — they're just somewhat higher for the coal ones. "You're talking about one chance in a billion for nuclear power plants," Christensen says. "And it's one in 10 million to one in a hundred million for coal plants."

Radiation from uranium in coal might only form a genuine health risk to miners, Finkelman explains. "It's more of an occupational hazard than a general environmental hazard," he says. "The miners are surrounded by rocks and sloshing through ground water that is exuding radon."

Developing countries like India and China continue to unveil new coal-fired plants — at the rate of one every seven to 10 days in the latter nation. And the U.S. still draws around half of its electricity from coal. But coal plants have an additional strike against them: they emit harmful greenhouse gases.

With the world now focused on addressing climate change, nuclear power is gaining favor in some circles. China aims to quadruple nuclear capacity to 40,000 megawatts by 2020, and the U.S. may build as many as 30 new reactors in the next several decades. But, although the risk of a nuclear core meltdown is very low, the impact of such an event creates a stigma around the noncarbon power source.

The question boils down to the accumulating impacts of daily incremental pollution from burning coal or the small risk but catastrophic consequences of even one nuclear meltdown. "I suspect we'll hear more about this rivalry," Finkelman says. "More coal will be mined in the future. And those ignorant of the issues, or those who have a vested interest in other forms of energy, may be tempted to raise these issues again."

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Ontario Government Consults On Changes To Industrial Electricity Pricing And Programs

Ontario electricity pricing consultations will gather business input on OEB rate design, Industrial Conservation Initiative, dynamic pricing, global adjustment, and system costs through online feedback and sector-specific in-person sessions province-wide.

 

Key Points

Consultations gathering business input on rates, programs, and OEB policy to improve fairness and reduce system costs.

✅ Consults on ICI, GA, dynamic pricing structures

✅ Seeks views on OEB C&I rate design changes

✅ In-person sessions across key industrial sectors

 

The Ontario government has announced plans to hold consultations to seek input from businesses about industrial electricity pricing and programs. This will be done through Ontario's online consultations directory and though in-person sector-specific consultation sessions across the province. The in-person sessions will be held in all areas of Ontario, and will target "key industries," including automotive and the build-out of electric vehicle charging stations infrastructure, forestry, mining, agriculture, steel, manufacturing and chemicals.

On April 1, 2019, the Ontario government published a consultation notice for this process, confirming that it is looking for input on "electricity rate design, existing tax-based incentives, reducing system costs and regulatory and delivery costs," including related proposals such as the hydrogen rate reduction proposal under discussion. The consultation process includes a list of nine questions for respondents (and presumably participants in the in-person sessions) to address. These include questions about:

The benefits of the Industrial Conservation Initiative (described below), including how it could be changed to improve fairness and industrial competitiveness, and how it could complement programs like the Hydrogen Innovation Fund that support industrial innovation.

Dynamic pricing structures that allow for lower rates in return for responding to price signals versus a flat rate structure that potentially costs more, but is more stable and predictable, as Ontario's energy storage expansion accelerates.

Interest in an all-in commodity contract with an electricity retailer, even if it involves a risk premium.

Interested parties are invited to submit their comments before May 31, 2019.

The government's consultation announcement follows recent developments in the Ontario Energy Board's (OEB) review of electricity ratemaking for commercial and industrial customers, and intertie projects such as the Lake Erie Connector that could affect market dynamics.

In December 2018, the OEB published a paper from its Market Surveillance Panel (MSP) examining the Industrial Conservation Initiative (ICI), and potential alternative approaches. The ICI is a program that allows qualifying large industrial customers to base their global adjustment (GA) payments on their consumption during five peak demand hours in a year. Customers who find ways to reduce consumption at those times, perhaps through DERs and enabling energy storage options, will reduce their electricity costs. This shifts GA costs to other customers. The MSP found that the ICI does not fairly allocate costs to those who cause them and/or benefit from them, and recommends that a better approach should be developed.

In February 2019, the OEB released its Staff Report to the Board on Rate Design for Commercial and Industrial Electricity Customers, setting out recommendations for new rate designs for electricity commercial and industrial (C&I) rate classes as Ontario increasingly turns to battery storage to meet rising demand. As described in an earlier post, the Staff Report includes recommendations to: (i) establish a fixed distribution charge for commercial customers with demands under 10 kW; (ii) implement a demand charge (rather than the current volumetric charge) for C&I customers with demands between 10kW and 50kW; and (iii) introduce a "capacity reserve charge" for customers with load displacement generation to replace stand-by charges and provide for recognition of the benefits of this generation on the system. The OEB held a stakeholder information session in mid-March on this initiative, and interested parties are now filing submissions in response to the Staff Report.

Whether and how the OEB's processes will fit together with the government's consultation process remains to be seen.

 

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Blizzard and Extreme Cold Hit Calgary and Alberta

Calgary Winter Storm and Extreme Cold delivers heavy snowfall, ECCC warnings, blowing snow, icy roads, and dangerous wind chill across southern Alberta, as a low-pressure system and northerly inflow fuel hazardous travel and frostbite risks.

 

Key Points

A severe Alberta storm with heavy snow, strong winds, ECCC warnings, dangerous wind chill, and high frostbite risk.

✅ ECCC extends snowfall and winter storm warnings regionwide.

✅ Wind chill -28 to -47; frostbite possible within 5-30 minutes.

✅ AMA rescues surge; non-essential travel strongly discouraged.

 

Calgary and much of southern Alberta faced a significant winter storm that brought heavy snowfall, strong winds, and dangerously low temperatures. Environment and Climate Change Canada (ECCC) issued extended and expanded snowfall and winter storm warnings as persistent precipitation streamed along the southern borders. The combination of a low-pressure system off the West Coast, where a B.C. 'bomb cyclone' had left tens of thousands without power, and a northerly inflow at the surface led to significant snow accumulations in a short period.

The storm resulted in poor driving conditions across much of southern Alberta, with snow-packed and icy roads, as well as limited visibility due to blowing snow. ECCC advised postponing non-essential travel until conditions improved. As of 10 a.m. on January 17, the 511 Alberta map showed poor driving conditions throughout the region, while B.C. electricity demand hit an all-time high amid the cold.

In Calgary, the city recorded four centimeters of snow on January 16, with an additional four centimeters expected on January 17. Temperatures remained far below seasonal averages until the end of the week, and Calgary electricity use tends to surge during such cold snaps according to Enmax, with improvements starting on Sunday.

The extreme cold posed significant risks, with wind chills of -28 to -39 capable of causing frostbite in 10 to 30 minutes, as a Quebec power demand record illustrated during the deep freeze. When wind chills dropped to -40 to -47, frostbite could occur in as little as five to 10 minutes. Residents were advised to watch for signs of frostbite, including color changes on fingers and toes, pain, numbness, tingling sensations, or swelling. Those most at risk included young children, older adults, people with chronic illnesses, individuals working or exercising outdoors, and those without proper shelter.

In response to the severe weather, the Alberta Motor Association (AMA) experienced a surge in calls for roadside assistance. Between January 12 and 14, there were approximately 32,000 calls, with about 22,000 of those requiring rescues between January 12 and 14. The high volume of requests led the AMA to temporarily cease providing wait time updates on their website due to the inability to provide accurate information, while debates over Alberta electricity prices also intensified during the cold.

The storm also had broader implications across Canada. Heavy snow was expected to fall across wide swaths of southern British Columbia and parts of southern Alberta, as BC Hydro's winter payment plan offered billing relief to customers during the stretch. Northern Alberta was under extreme cold warnings, with temperatures expected to dip to -40°C through the rest of the week. Similar extreme cold was forecast for southern Ontario, with wind chill values reaching -30°C.

As the storm progressed, conditions began to improve. The wind warning for central Alberta ended by January 17, though a blowing snow advisory remained in effect for the southeast corner of the province. Northwest winds gusting up to 90 km/h combined with falling snow continued to cause poor visibility in some areas, while California power outages and landslides were reported amid concurrent severe storms along the coast. Conditions were expected to improve by mid-morning.

In the aftermath of the storm, residents were reminded of the importance of preparedness and caution during severe winter weather. Staying informed through official weather advisories, adjusting travel plans, and taking necessary precautions can help mitigate the risks associated with such extreme conditions.

 

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First Reactor Installed at the UK’s Latest Nuclear Power Station

Hinkley Point C Reactor Installation signals UK energy security, nuclear power expansion, and low-carbon baseload, featuring EPR technology in Somerset to cut emissions, support net-zero goals, and deliver reliable electricity for homes and businesses.

 

Key Points

First EPR unit fitted at Hinkley Point C, boosting low-carbon baseload, grid reliability, and UK energy security.

✅ Generates 3.2 GW across two EPRs for 7% of UK electricity.

✅ Provides low-carbon baseload to complement wind and solar.

✅ Creates jobs and strengthens supply chains during construction.

 

The United Kingdom has made a significant stride toward securing its energy future with the installation of the first reactor at its newest nuclear power station. This development marks an important milestone in the nation’s efforts to combat climate change, reduce carbon emissions, and ensure a stable and sustainable energy supply. As the world moves towards greener alternatives to fossil fuels, nuclear power remains a key part of the UK's green industrial revolution and low-carbon energy strategy.

The new power station, located at Hinkley Point C in Somerset, is set to be one of the most advanced nuclear facilities in the country. The installation of its reactor represents a crucial step in the construction of the plant, with earlier milestones like the reactor roof lifted into place underscoring steady progress, which is expected to provide reliable, low-carbon electricity for millions of homes and businesses across the UK. The completion of the first reactor is seen as a pivotal moment in the journey to bring the station online, with the second reactor expected to follow shortly after.

A Historic Milestone

Hinkley Point C will be the UK’s first nuclear power station built in over two decades. The plant, once fully operational, will play a key role in the country's energy transition. The reactors at Hinkley Point C are designed to be state-of-the-art, using advanced technology that is both safer and more efficient than older nuclear reactors. Each of the two reactors will have the capacity to generate 1.6 gigawatts of electricity, enough to power approximately six million homes. Together, they will contribute about 7% of the UK’s electricity needs, providing a steady, reliable source of energy even during periods of high demand.

The installation of the first reactor at Hinkley Point C is not just a technical achievement; it is also symbolic of the UK’s commitment to energy security and its goal to achieve net-zero carbon emissions by 2050, a target that industry leaders say multiple new stations will be needed to meet effectively. Nuclear power is a crucial part of this equation, as it provides a stable, baseload source of energy that does not rely on weather conditions, unlike wind or solar power.

Boosting the UK’s Energy Capacity

The addition of Hinkley Point C to the UK’s energy infrastructure is expected to significantly boost the country’s energy capacity and reduce its reliance on fossil fuels. The UK government has been focused on increasing the share of renewable energy in its mix, and nuclear power is seen as an essential complement to intermittent renewable sources, especially as wind and solar have surpassed nuclear in generation at times. Nuclear energy is considered a low-carbon, reliable energy source that can fill the gaps when renewable generation is insufficient, such as on cloudy or calm days when solar and wind energy output may be low.

With the aging of the UK’s existing nuclear fleet and the gradual phase-out of coal-fired power plants, Hinkley Point C will help ensure that the country does not face an energy shortage as it transitions to cleaner energy sources. The plant will help to bridge the gap between the current energy infrastructure and the future, enabling the UK to phase out coal while maintaining a steady, low-carbon energy supply.

Safety and Technological Innovation

The reactors at Hinkley Point C are being constructed using the latest in nuclear technology. They are based on the European Pressurized Reactor (EPR) design, which is known for its enhanced safety features and efficiency, and has been deployed in projects within China's nuclear program as well, making it a proven platform. These reactors are designed to withstand extreme conditions, including earthquakes and flooding, making them highly resilient. Additionally, the EPR technology ensures that the reactors have a low environmental impact, producing minimal waste and offering the potential for increased sustainability compared to older reactor designs.

One of the key innovations in the Hinkley Point C reactors is their advanced cooling system, which is designed to be more efficient and environmentally friendly than previous generations. This system ensures that the reactors operate at optimal temperatures while minimizing the environmental footprint of the plant.

Economic and Job Creation Benefits

The construction of Hinkley Point C has already provided a significant boost to the local economy. Thousands of jobs have been created, not only in the construction phase but also in the ongoing operation and maintenance of the facility. The plant is expected to create more than 25,000 jobs during its construction and around 900 permanent jobs once it is operational.

The project is also expected to have a positive impact on the wider UK economy. As a major infrastructure project, Hinkley Point C will provide long-term economic benefits, including boosting supply chains and providing opportunities for local businesses.

Challenges and the Road Ahead

Despite the progress, the construction of Hinkley Point C has not been without its challenges. The project has faced delays and cost overruns, with setbacks at Hinkley Point C documented by industry observers, and the total estimated cost now standing at around £22 billion. However, the successful installation of the first reactor is a step toward overcoming these hurdles and completing the project on schedule.

Looking ahead, Hinkley Point C’s successful operation could pave the way for future nuclear developments in the UK, including next-gen nuclear designs that aim to be smaller, cheaper, and safer. As the world grapples with the pressing need to reduce greenhouse gas emissions, nuclear energy may play an even more critical role in ensuring a clean, reliable energy future.

The installation of the first reactor at Hinkley Point C marks a crucial moment in the UK’s energy journey. As the country seeks to meet its carbon reduction targets and bolster its energy security, the new nuclear power station will be a cornerstone of its efforts. With its advanced technology, safety features, and potential to provide low-carbon energy for decades to come, Hinkley Point C offers a glimpse into the future of energy production in the UK and beyond.

 

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Wind has become the ‘most-used’ source of renewable electricity generation in the US

U.S. Wind Generation surpassed hydroelectric output in 2019, EIA data shows, becoming the top renewable electricity source, driven by PTC incentives, expanded capacity, and utility-scale projects across states, boosting the national electricity mix.

 

Key Points

U.S. Wind Generation is the nation's top renewable, surpassing hydro as EIA-tracked capacity grows under PTC incentives.

✅ EIA: wind topped hydro in 2019, over 300M MWh generated

✅ PTC credits spurred growth in utility-scale wind projects

✅ 103 GW installed; 77% added in the last decade

 

Last year saw wind power surging in the U.S. to overtake hydroelectric generation for the first time, according to data from the U.S. Energy Information Administration (EIA).

Released Wednesday, the figures from the EIA’s “Electric Power Monthly” report show that yearly wind generation hit a little over 300 million megawatt hours (MWh) in 2019. This was roughly 26 million MWh more than hydroelectric production.

Wind now represents the “most-used renewable electricity generation source” in the U.S., the EIA said, and renewables hit a 28% monthly record in April in later data.

Overall, total renewable electricity generation — which includes sources such as solar's 4.7% share in 2022 as one example, geothermal and landfill gas — at utility scale facilities hit more than 720 million MWh in 2019, compared to just under 707 million MWh in 2018. To put things in perspective, generation from coal came to more than 966 million MWh in 2019, while renewables surpassed coal in 2022 nationally according to later analyses.

According to the EIA’s “Today in Energy” briefing, which was also published Wednesday, generation from wind power has grown “steadily” across the last decade, and by 2020, renewables became the second-most prevalent source in the U.S. power mix.

This, it added, was partly down to the extension of the Production Tax Credit, or PTC, amid favorable government plans supporting solar and wind growth. According to the EIA, the PTC is a system which gives operators a tax credit per kilowatt hour of renewable electricity production. It applies for the first 10 years of a facility’s operation.

At the end of 2019, the country was home to 103 gigawatts (GW) of wind capacity, with 77% of this being installed in the last decade, and wind capacity surpassed hydro in 2016 according to industry data. The U.S. is home 80 GW of hydroelectric capacity, according to the EIA.

“The past decade saw a steady increase in wind capacity across the country and we capped the decade with a monumental achievement for the industry in reaching more than 100 GW,” Tom Kiernan, the American Wind Energy Association’s CEO, said in a statement issued Thursday.

“And more wind energy is coming, as the industry is well into investing $62 billion in new projects over the next few years that put us on the path to achieving 20 percent of the nation’s electricity mix in 2030,” Kiernan went on to state.

“As a result, wind is positioned to remain the largest renewable energy generator in the country for the foreseeable future.”

 

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Duke Energy Florida to build its largest battery storage projects yet

Duke Energy Florida battery storage will add 22 MW across Trenton, Cape San Blas and Jennings, improving grid reliability, outage resilience, enabling peak shaving and deferring distribution upgrades to increase efficiency and customer value.

 

Key Points

Three lithium battery projects totaling 22 MW to improve Florida grid reliability, outage resilience and efficiency.

✅ 22 MW across Trenton, Cape San Blas and Jennings sites

✅ Enhances outage resilience and grid reliability

✅ Defers costly distribution upgrades and improves efficiency

 

Duke Energy Florida (DEF) has announced three battery energy storage projects, totaling 22 megawatts, that will improve overall reliability and support critical services during power outages.

Duke Energy, the nation's largest electric utility, unveils its new logo. (PRNewsFoto/Duke Energy) (PRNewsfoto/Duke Energy)

Collectively, the storage facilities will enhance grid operations, increase efficiencies and improve overall reliability for surrounding communities, with virtual power plant programs offering a model for coordinating distributed resources.

They will also provide important backup generation during power outages, a service that is becoming increasingly important with the number and intensity of storms that have recently impacted the state.

As the grid manager and operator, DEF can maximize the versatility of battery energy storage systems (BESS) to include multiple customer and electric system benefits such as balancing energy demand, managing intermittent resources, increasing energy security and deferring traditional power grid upgrades.

These benefits help reduce costs for customers and increase operational efficiencies.

The 11-megawatt (MW) Trenton lithium-based battery facility will be located 30 miles west of Gainesville in Gilchrist County. The energy storage project will continue to improve power reliability using newer technologies.

The 5.5-MW Cape San Blas lithium-based battery facility will be located approximately 40 miles southeast of Panama City in Gulf County. The project will provide additional power capacity to meet our customers' rising energy demand in the area. This project is an economical alternative to replacing distribution equipment necessary to accommodate local load growth.

The 5.5-MW Jennings lithium-based battery facility will be located 1.5 miles south of the Florida-Georgia border in Hamilton County. The project will continue to improve power reliability through energy storage as an alternative solution to installing new and more costly distribution equipment.

Currently the company plans to complete all three projects by the end of 2020.

"These battery projects provide electric system benefits that will help improve local reliability for our customers and provide significant energy services to the power grid," said Catherine Stempien, Duke Energy Florida state president. "Duke Energy Florida will continue to identify opportunities in battery storage technology which will deliver efficiency improvements to our customers."

 

Additional renewables projects

As part of DEF's commitment to renewables, the company is investing an estimated $1 billion to construct or acquire a total of 700 MW of cost-effective solar power facilities and 50 MW of battery storage through 2022.

Duke Energy is leading the industry deployment of battery technology, with SDG&E's Emerald Storage project underscoring broader adoption across the sector today. Last fall, the company and University of South Florida St. Petersburg unveiled a Tesla battery storage system that is connected to a 100-kilowatt (kW) solar array – the first of its kind in Florida.

This solar-battery microgrid system manages the energy captured by the solar array, situated on top of the university's parking garage, and similar low-income housing microgrid financing efforts are expanding access. The solar array was constructed three years ago through a $1 million grant from Duke Energy. The microgrid provides a backup power source during a power outage for the parking garage elevator, lights and electric vehicle charging stations. Click here to learn more.

In addition to expanding its battery storage technology and solar investments, DEF is investing in transportation electrification to support the growing U.S. adoption of electric vehicles (EV), including EV charging infrastructure, 530 EV charging stations and a modernized power grid to deliver the diverse and reliable energy solutions customers want and need.

 

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Judge: Texas Power Plants Exempt from Providing Electricity in Emergencies

Texas Blackout Liability Ruling clarifies appellate court findings in Houston, citing deregulated energy markets, ERCOT immunity, wholesale generators, retail providers, and 2021 winter storm lawsuits over grid failures and wrongful deaths.

 

Key Points

Houston judges held wholesale generators owe no duty to retail customers, limiting liability for 2021 blackout lawsuits.

✅ Court cites deregulated market and lack of privity to consumers

✅ Ruling shields generators from 2021 winter storm civil suits

✅ Plaintiffs plan appeals; legislature may address liability

 

Nearly three years after the devastating Texas blackout of 2021, a panel of judges from the First Court of Appeals in Houston has determined that major power companies cannot be held accountable for their failure to deliver electricity during the power grid crisis that unfolded, citing Texas' deregulated energy market as the reason.

This ruling appears likely to shield these companies from lawsuits that were filed against them in the aftermath of the blackout, leaving the families of those affected uncertain about where to seek justice.

In February 2021, a severe cold front swept over Texas, bringing extended periods of ice and snow. The extreme weather conditions increased energy demand while simultaneously reducing supply by causing power generators and the state's natural gas supply chain to freeze. This led to a blackout that left millions of Texans without power and water for nearly a week.

The state officially reported that almost 250 people lost their lives during the winter storm and subsequent blackout, although some analysts argue that this is a significant undercount and warn of blackout risks across the U.S. during severe heat as well.

In the wake of the storm, Texans affected by the energy system's failure began filing lawsuits, and lawmakers proposed a market bailout as political debate intensified. Some of these legal actions were directed against power generators whose plants either ceased to function during the storm or ran out of fuel for electricity generation.

After several years of legal proceedings, a three-judge panel was convened to evaluate the merits of these lawsuits.

This week, Chief Justice Terry Adams issued a unanimous opinion on behalf of the panel, stating, "Texas does not currently recognize a legal duty owed by wholesale power generators to retail customers to provide continuous electricity to the electric grid, and ultimately to the retail customers."

The opinion further clarified that major power generators "are now statutorily precluded by the legislature from having any direct relationship with retail customers of electricity."

This separation of power generation from transmission and retail electric sales in many parts of Texas resulted from energy market deregulation in the early 2000s, with the goal of reducing energy costs, and prompted electricity market reforms aimed at avoiding future blackouts.

Under the previous system, power companies were "vertically integrated," controlling generators, transmission lines, and selling the energy they produced directly to regional customers. However, in deregulated areas of Texas, competition was introduced, creating competing energy-generating companies and retail electric providers that purchase power wholesale and then sell it to residential consumers; meanwhile, electric cooperatives in other parts of the state remained member-owned providers.

Tré Fischer, a partner at the Jackson Walker law firm representing the power companies, explained, "One consequence of that was, because of the unbundling and the separation, you also don't have the same duties and obligations [to consumers]. The structure just doesn't allow for that direct relationship and correspondingly a direct obligation to continually supply the electricity even if there's a natural disaster or catastrophic event."

In the opinion, Justice Adams noted that when designing the Texas energy market, amid renewed interest in ways to improve electricity reliability across the grid, state lawmakers "could have codified the retail customers' asserted duty of continuous electricity on the part of wholesale power generators into law."

The recent ruling applies to five representative cases chosen by the panel out of hundreds filed after the blackout. Due to this decision, it is improbable that any of the lawsuits against power companies will succeed, according to the court's interpretation.

However, plaintiffs' attorneys have indicated their intention to appeal. They may request a review of the panel's opinion by the entire First Court of Appeals or appeal directly to the state supreme court.

The state Supreme Court had previously ruled that the Electric Reliability Council of Texas (ERCOT), the state's power grid operator, enjoys sovereign immunity and cannot be sued over the blackout.

This latest opinion raises the question of who, if anyone, can be held responsible for deaths and losses resulting from the blackout, a question left unaddressed by the court. Fischer commented, "If anything [the judges] were saying that is a question for the Texas legislature."

 

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