Kyoto program 'gutted' by Tories

By Toronto Star


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The Conservative government has gutted a key office set up under the Kyoto protocol that allows Canadian companies to offset greenhouse gas emissions by investing in green projects in developing countries, the Toronto Star has learned.

Foreign Affairs, which runs the program, refused repeated requests by the Star for current staffing levels in the Clean Development Mechanism office, compared with staff numbers before 2006, when the federal Tories came to power. But those who have worked with the office said it has dropped to "one or two" people, from about 25 people in the fall of 2005.

"(The Conservative government) started laying them off almost immediately when they got into power last spring. I think by the summer the place was gutted," said Dirk Brinkman, head of a Vancouver-based reforestation company that develops such projects.

He said the office helped its counterparts in developing countries and worked with companies here as well.

The Conservatives have long complained about plans by their Liberal predecessors to invest in "hot air credits" abroad. The Tories also have criticized the idea that Canada could clean up the atmosphere here by funding environmentally sound projects in Russia or South America.

The Kyoto accord allows developed countries to trade emissions credits with other developed countries. It also allows developed nations to fund green projects in developing countries.

Canada's office was set up in 1998 to work on the latter initiative. The Kyoto tool is to help countries like China and India avoid building their economies in the way developed countries have done, with coal-based technologies, said Stewart Elgie, a law professor with the University of Ottawa's Institute of the Environment.

"It's essential that poor countries grow their economies in low-emission ways and the clean development mechanism is the way to achieve that," he said.

The Conservatives came under fire last year for removing all references to climate change projects and the Kyoto accord from the Environment Canada website. The government was also criticized for cancelling funding 15 climate change programs, including the popular One-Tonne Challenge and the EnerGuide home efficiency program. It said the programs did not produce results.

A Tory source told the Star that, while a few projects under the emissions credit banner might have been in the early stages of development when the Conservatives took power, nothing was "ready to go."

"They were pushing for it, but they were not in place," the source said of the projects the office was working on early last year. "I've seen one project that could look like a CDM project, but it wasn't clearly identified as such."

Any request for funding related to such a project was a non-starter in the government's eyes, the source said.

"Clearly, the indication was that if you want government money for that, it will not go ahead." John Drexhage of the Ottawa-based International Institute for Sustainable Development said that so far, the government has only said it will not buy emissions credits directly as a government.

"The government has yet to clarify whether it's going to allow industry to participate in global trading," he said. "I would hope that they not take away that option."

Even so, the government has effectively penalized companies looking to use the credit program to reduce their greenhouse gases by preventing those firms from tapping into the expert assistance. Drexhage said help is also available from private firms.

Brinkman said his reforestation company has up to $100 million in projects under development that would lead to "millions of tonnes of tradable (emissions) credits." The company is developing such projects for companies in countries including Spain and Italy, he said.

At a special committee examining the government's environmental legislation this week, Drexhage raised the case of 45 such projects in Ukraine and Russia. He said the projects have achieved greenhouse gas reductions equalling 93 megatonnes through initiatives focused on energy efficiency and capturing "fugitive emissions" from the oil and gas sectors.

"When it comes to climate change and greenhouse gas emissions, not only do the emissions not have borders, neither do the emissions reductions," he said. "From a global environmental perspective, a tonne of CO2 reduced here is the same as a tonne of CO2 reduced in Brazil or anywhere else."

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Is nuclear power really in decline?

Nuclear Energy Growth accelerates as nations pursue decarbonization, complement renewables, displace coal, and ensure grid reliability with firm, low-carbon baseload, benefiting from standardized builds, lower cost of capital, and learning-curve cost reductions.

 

Key Points

Expansion of nuclear capacity to cut CO2, complement renewables, replace coal, and stabilize grids at low-carbon cost.

✅ Complements renewables; displaces coal for faster decarbonization

✅ Cuts system costs via standardization and lower cost of capital

✅ Provides firm, low-carbon baseload and grid reliability

 

By Kirill Komarov, Chairman, World Nuclear Association.

As Europe and the wider world begins to wake up to the need to cut emissions, Dr Kirill Komarov argues that tackling climate change will see the use of nuclear energy grow in the coming years, not as a competitor to renewables but as a competitor to coal.

The nuclear industry keeps making headlines and spurring debates on energy policy, including the green industrial revolution agenda in several countries. With each new build project, the detractors of nuclear power crowd the bandwagon to portray renewables as an easy and cheap alternative to ‘increasingly costly’ nuclear: if solar and wind are virtually free why bother splitting atoms?

Yet, paradoxically as it may seem, if we are serious about policy response to climate change, nuclear energy is seeing an atomic energy resurgence in the coming decade or two.

Growth has already started to pick up with about 3.1 GW new capacity added in the first half of 2018 in Russia and China while, at the very least, 4GW more to be completed by the end of the year – more than doubling the capacity additions in 2017.

In 2019 new connections to the grid would exceed 10GW by a significant margin.

If nuclear is in decline, why then do China, India, Russia and other countries keep building nuclear power plants?

To begin with, the issue of cost, argued by those opposed to nuclear, is in fact largely a bogus one, which does not make a fully rounded like for like comparison.

It is true that the latest generation reactors, especially those under construction in the US and Western Europe, have encountered significant construction delays and cost overruns.

But the main, and often the only, reason for that is the ‘first-of-a-kind’ nature of those projects.

If you build something for the first time, be it nuclear, wind or solar, it is expensive. Experience shows that with series build, standardised construction economies of scale and the learning curve from multiple projects, costs come down by around one-third; and this is exactly what is already happening in some parts of the world.

Furthermore, those first-of-a-kind projects were forced to be financed 100% privately and investors had to bear all political risks. It sent the cost of capital soaring, increasing at one stroke the final electricity price by about one third.

While, according to the International Energy Agency, at 3% cost of capital rate, nuclear is the cheapest source of energy: on average 1% increase adds about US$6-7 per MWh to the final price.

When it comes to solar and wind, the truth, inconvenient for those cherishing the fantasy of a world relying 100% on renewables, is that the ‘plummeting prices’ (which, by the way, haven’t changed much over the last three years, reaching a plateau) do not factor in so-called system and balancing costs associated with the need to smooth the intermittency of renewables.

Put simply, the fact the sun doesn’t shine at night and wind doesn’t blow all the time means wind and solar generation needs to be backed up.

According to a study by the Potsdam Institute for Climate Impact Research, integration of intermittent renewables into the grid is estimated in some cases to be as expensive as power generation itself.

Delivering the highest possible renewable content means customers’ bills will have to cover: renewable generation costs, energy storage solutions, major grid updates and interconnections investment, as well as gas or coal peaking power plants or ‘peakers’, which work only from time to time when needed to back up wind and solar.

The expected cost for kWh for peakers, according to investment bank Lazard is about twice that of conventional power plants due to much lower capacity factors.

Despite exceptionally low fossil fuel prices, peaking natural gas generation had an eye-watering cost of $156-210 per MWh in 2017 while electricity storage, replacing ‘peakers’, would imply an extra cost of $186-413 per MWh.

Burning fossil fuels is cheaper but comes with a great deal of environmental concern and extensive use of coal would make net-zero emissions targets all but unattainable.

So, contrary to some claims, nuclear does not compete with renewables. Moreover, a recent study by the MIT Energy Initiative showed, most convincingly, that renewables and load following advanced nuclear are complementary.

Nuclear competes with coal. Phasing out coal is crucial to fighting climate change. Putting off decisions to build new nuclear capacities while increasing the share of intermittent renewables makes coal indispensable and extends its life.

Scientists at the Brattle group, a consultancy, argue that “since CO2 emissions persist for many years in the atmosphere, near-term emission reductions are more helpful for climate protection than later ones”.

The longer we hesitate with new nuclear build the more difficult it becomes to save the Earth.

Nuclear power accounta for about one-tenth of global electricity production, but as much as one-third of generation from low-carbon sources. 1GWe of installed nuclear capacity prevents emissions of 4-7 million metric tons of CO2 emissions per year, depending on the region.

The International Energy Agency (IEA) estimates that in order to limit the average global temperature increase to 2°C and still meet global power demand, we need to connect to the grid at least 20GW of new nuclear energy each year.

The World Nuclear Association (WNA) sets the target even higher with the total of 1,000 GWe by 2050, or about 10 GWe per year before 2020; 25 GWe per year from 2021 to 2025; and on average 33 GWe from 2026 to 2050.

Regulatory and political challenges in the West have made life for nuclear businesses in the US and in Europe's nuclear sector very difficult, driving many of them to the edge of insolvency; but in the rest of the world nuclear energy is thriving.

Nuclear vendors and utilities post healthy profits and invest heavily in next-gen nuclear innovation and expansion. The BRICS countries are leading the way, taking over the initiative in the global climate agenda. From their perspective, it’s the opposite of decline.

Dr Kirill Komarov is first deputy CEO of Russian state nuclear energy operator Rosatom and chairman of the World Nuclear Association.

 

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As New Zealand gets serious about climate change, can electricity replace fossil fuels in time?

New Zealand Energy Transition will electrify transport and industry with renewables, grid-scale solar, wind farms, geothermal, batteries, demand response, pumped hydro, and transmission upgrades to manage dry-year risk and winter peak loads.

 

Key Points

A shift to renewables and smart demand to decarbonise transport and industry while ensuring reliable, affordable power.

✅ Electrifies transport and industrial heat with renewables

✅ Uses demand response, batteries, and pumped hydro for resilience

✅ Targets 99%+ renewable supply, managing dry-year and peak loads

 

As fossil fuels are phased out over the coming decades, the Climate Change Commission (CCC) suggests electricity will take up much of the slack, aligning with the vision of a sustainable electric planet powering our vehicle fleet and replacing coal and gas in industrial processes.

But can the electricity system really provide for this increased load where and when it is needed? The answer is “yes”, with some caveats.

Our research examines climate change impacts on the New Zealand energy system. It shows we’ll need to pay close attention to demand as well as supply. And we’ll have to factor in the impacts of climate change when we plan for growth in the energy sector.

 

Demand for electricity to grow
While electricity use has not increased in NZ in the past decade, many agencies project steeply rising demand in coming years. This is partly due to both increasing population and gross domestic product, but mostly due to the anticipated electrification of transport and industry, which could result in a doubling of demand by mid-century.

It’s hard to get a sense of the scale of the new generation required, but if wind was the sole technology employed to meet demand by 2050, between 10 and 60 new wind farms would be needed nationwide.

Of course, we won’t only build wind farms, as renewables are coming on strong and grid-scale solar, rooftop solar, new geothermal, some new small hydro plant and possibly tidal and wave power will all have a part to play.

 

Managing the demand
As well as providing more electricity supply, demand management and batteries will also be important. Our modelling shows peak demand (which usually occurs when everyone turns on their heaters and ovens at 6pm in winter) could be up to 40% higher by 2050 than it is now.

But meeting this daily period of high demand could see expensive plant sitting idle for much of the time (with the last 25% of generation capacity only used about 10% of the time).

This is particularly a problem in a renewable electricity system when the hydro lakes are dry, as hydro is one of the few renewable electricity sources that can be stored during the day (as water behind the dam) and used over the evening peak (by generating with that stored water).

Demand response will therefore be needed. For example, this might involve an industrial plant turning off when there is too much load on the electricity grid.

 

But by 2050, a significant number of households will also need smart appliances and meters that automatically use cheaper electricity at non-peak times. For example, washing machines and electric car chargers could run automatically at 2am, rather than 6pm when demand is high.

Our modelling shows a well set up demand response system could mitigate dry-year risk (when hydro lakes are low on water) in coming decades, where currently gas and coal generation is often used.

Instead of (or as well as) having demand response and battery systems to combat dry-year risk, a pumped storage system could be built. This is where water is pumped uphill when hydro lake inflows are plentiful, and used to generate electricity during dry periods.

The NZ Battery project is currently considering the potential for this in New Zealand, and debates such as whether we would use Site C's electricity offer relevant lessons.

 

Almost (but not quite) 100% renewable
Dry-year risk would be greatly reduced and there would be “greater greenhouse gas emissions savings” if the Interim Climate Change Committee’s (ICCC) 2019 recommendation to aim for 99% renewable electricity was adopted, rather than aiming for 100%.

A small amount of gas-peaking plant would therefore be retained. The ICCC said going from 99% to 100% renewable electricity by overbuilding would only avoid a very small amount of carbon emissions, at a very high cost.

Our modelling supports this view. The CCC’s draft advice on the issue also makes the point that, although 100% renewable electricity is the “desired end point”, timing is important to enable a smooth transition.

Despite these views, Energy Minister Megan Woods has said the government will be keeping the target of a 100% renewable electricity sector by 2030.

 

Impacts of climate change
In future, the electricity system will have to respond to changing climate patterns as well, becoming resilient to climate risks over time.

The National Institute of Water and Atmospheric Research predicts winds will increase in the South Island and decrease in the far north in coming decades.

Inflows to the biggest hydro lakes will get wetter (more rain in their headwaters), and their seasonality will change due to changes in the amount of snow in these catchments.

Our modelling shows the electricity system can adapt to those changing conditions. One good news story (unless you’re a skier) is that warmer temperatures will mean less snow storage at lower elevations, and therefore higher lake inflows in the big hydro catchments in winter, leading to a better match between times of high electricity demand and higher inflows.

 

The price is right
The modelling also shows the cost of generating electricity is not likely to increase, because the price of building new sources of renewable energy continues to fall globally.

Because the cost of building new renewables is now cheaper than non-renewables (such as coal-fired plants), investing in carbon-free electricity is increasingly compelling, and renewables are more likely to be built to meet new demand in the near term.

While New Zealand’s electricity system can enable the rapid decarbonisation of (at least) our transport and industrial heat sectors, international efforts like cleaning up Canada's electricity underline the need for certainty so the electricity industry can start building to meet demand everywhere.

Bipartisan cooperation at government level will be important to encourage significant investment in generation and transmission projects with long lead times and life expectancies, as analyses of climate policy and grid implications underscore in comparable markets.

Infrastructure and markets are needed to support demand response uptake, as well as certainty around the Tiwai exit in 2024 and whether pumped storage is likely to be built.

Our electricity system can support the rapid decarbonisation needed if New Zealand is to do its fair share globally to tackle climate change.

But sound planning, firm decisions and a supportive and relatively stable regulatory framework are all required before shovels can hit the ground.

 

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Crucial step towards completing nuclear plant achieved in Abu Dhabi

Barakah Unit 4 Cold Hydrostatic Testing validates reactor coolant system integrity at the Barakah Nuclear Energy Plant in Abu Dhabi, UAE, confirming safety, quality, and commissioning readiness under ENEC and KEPCO oversight.

 

Key Points

Pressure test of Unit 4's reactor coolant system, confirming integrity and safety for commissioning at Barakah.

✅ 25% above normal operating pressure verified.

✅ Welds, joints, and high-pressure components inspected.

✅ Supports safe, reliable, emissions-free baseload power.

 

The Emirates Nuclear Energy Corporation (ENEC) has successfully completed Cold Hydrostatic Testing (CHT) at Unit 4 of the Barakah Nuclear Energy Plant, the Arab world’s first nuclear energy plant being built in the Al Dhafra region of Abu Dhabi, UAE. The testing incorporated the lessons learned from the previous three units and is a crucial step towards the completion of Unit 4, the final unit of the Barakah plant.

As a part of CHT, the pressure inside Unit 4’s systems was increased to 25 per cent above what will be the normal operating pressure, demonstrating, as seen across global nuclear projects, the quality and robust nature of the Unit’s construction. Prior to the commencement of CHT, Unit 4’s Nuclear Steam Supply Systems were flushed with demineralised water, and the Reactor Pressure Vessel Head and Reactor Coolant Pump Seals were installed. During the Cold Hydrostatic Testing, the welds, joints, pipes and components of the reactor coolant system and associated high-pressure systems were verified.

Mohammed Al Hammadi, Chief Executive Officer of ENEC said: “I am proud of the continued progress being made at Barakah despite the circumstances we have all faced in relation to COVID-19. The UAE leadership’s decisive and proactive response to the pandemic supported us in taking timely, safety-led actions to protect the health and safety of our workforce and our plant. These actions, alongside the efforts of our talented and dedicated workforce, have enabled the successful completion of CHT at Unit 4, which was completed in adherence to the highest standards of safety, quality, and security.

“With this accomplishment, we move another step closer to achieving our goal of supplying up to a quarter of our nation’s electricity needs through the national grid and powering its future growth with safe, reliable, and emissions-free electricity,” he added.

By the end of 2019, ENEC and Korea Electric Power Corporation (KEPCO), working with Korea Hydro & Nuclear Power (KHNP) on the project, had successfully completed all major construction work including major concrete pouring, installation of the Turbine Generator, and the internal components of the Reactor Pressure Vessel (RPV) of Unit 4, which paved the way for the commencement of testing and commissioning.

The testing at Unit 4 represents a significant achievement in the development of the UAE Peaceful Nuclear Energy Program, following the successful completion of fuel assembly loading into Unit 1 in March 2020, confirming that the UAE has officially become a peaceful nuclear energy operating nation. Preparations are now in the final stages for the safe start-up of Unit 1, which subsequently reached 100% power ahead of commercial operations, in the coming months.

ENEC is currently in the final stages of construction of units 2, 3 and 4 of the Barakah Nuclear Energy Plant, as China’s nuclear program continues its steady development globally. The overall construction of the four units is more than 94% complete. Unit 4 is more than 84 per cent, Unit 3 is more than 92 per cent and Unit 2 is more than 95 per cent. The four units at Barakah will generate up to 25 per cent of the UAE’s electricity demand by producing 5,600 MW of clean baseload electricity, as projects such as new reactors in Georgia take shape, and preventing the release of 21 million tons of carbon emissions each year – the equivalent of removing 3.2 million cars off the roads annually.

 

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Sustainable Marine now delivering electricity to Nova Scotia grid from tidal energy

Sustainable Marine tidal energy delivers in-stream power to Nova Scotia's grid from Grand Passage, proving low-impact, renewable generation and advancing a floating tidal array at FORCE and Minas Passage in the Bay of Fundy.

 

Key Points

The first in-stream tidal project supplying clean power to Nova Scotia's grid, proven at Grand Passage.

✅ First to deliver in-stream tidal power to Canada's grid

✅ Demonstration at Grand Passage informs FORCE deployments

✅ Low-impact design and environmental monitoring validated

 

Sustainable Marine has officially powered up its tidal energy operation in Canada and is delivering clean electricity to the power system in Nova Scotia, on the country’s Atlantic coast, as the province moves to increase wind and solar projects in the years ahead. The company’s system in Grand Passage is the first to deliver in-stream tidal power to the grid in Canada, following provincial approval to harness Bay of Fundy tides that is spurring further development.

The system start-up is the culmination of more than a decade of research, development and testing, including lessons from Scottish tidal projects in recent years and a powerful tidal turbine feeding onshore grids, managing the technical challenges associated with operating in highly energetic environments and proving the ultra-low environmental impact of the tidal technology.

Sustainable Marine is striving to deliver the world’s first floating tidal array at FORCE (Fundy Ocean Research Centre for Energy). This project will be delivered in phases, drawing upon the knowledge gained and lessons learned in Grand Passage, and insights from offshore wind pilots like France’s first offshore wind turbine in Europe. In the coming months the company will continue to operate the platform at its demonstration site at Grand Passage, gradually building up power production, while New York and New England clean energy demand continues to rise, to further prove the technology and environmental monitoring systems, before commencing deployments in the Minas Passage – renowned as the Everest of tidal energy.

The Bay of Fundy’s huge tidal energy resource contains more than four times the combined flow of every freshwater river in the world, with the potential to generate approximately 2,500 MW of green energy, underscoring why independent electricity planning will be important for integrating marine renewables.

 

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US judge orders PG&E to use dividends to pay for efforts to reduce wildfire risks

PG&E dividend halt for wildfire mitigation directs cash from shareholders to tree clearing, wildfire risk reduction, and probation compliance under Judge William Alsup, amid bankruptcy, Camp Fire liabilities, and power line vegetation management mandates.

 

Key Points

A court-ordered dividend halt funding vegetation clearance and wildfire mitigation as PG&E meets probation terms.

✅ Judge Alsup bars dividends until mitigation targets met

✅ 375,000 trees cleared near power lines in high-risk zones

✅ Measures tied to probation amid bankruptcy and liabilities

 

A U.S. judge said on Tuesday that PG&E may not resume paying dividends and must use the money to fund its plan for cutting down trees to reduce the risk of wildfires in California, stopping short of more costly measures he proposed earlier this year.

The new criminal probation terms for PG&E are modest compared with ones the judge had in mind in January and that PG&E said could have cost upwards of $150 billion.

The terms will, however, keep PG&E under the supervision of Judge William Alsup of the U.S. District Court for the Northern District of California and hold the company, which also is in Chapter 11 bankruptcy and whose bankruptcy plan has drawn support from wildfire victims, to its target for clearing areas around its power lines of some 375,000 trees this year.

PG&E's probation stems from its felony conviction after a deadly 2010 natural gas pipeline blast in San Bruno, California, near San Francisco, that killed eight people and injured 58 others.

PG&E filed for bankruptcy protection on Jan. 29 in anticipation of liabilities from wildfires, including a catastrophic 2018 blaze, the Camp Fire, for which PG&E later pleaded guilty to 85 counts in state court. It killed 86 people in the deadliest and most destructive wildfire in California history.

At a January hearing, Alsup, who is overseeing PG&E's probation, said he felt compelled to propose additional probation terms in the aftermath of Camp Fire. San Francisco-based PG&E expects its equipment will be found to have caused the blaze.

The probation process is separate from San Francisco-based PG&E's bankruptcy filing and from operational measures such as its pandemic response and shutoff moratorium implemented to protect customers.

As the company faces $30 billion in wildfire liabilities and bankruptcy proceedings and has opened a wildfire assistance program for affected residents, the energy company is expected to name as its new chief executive Bill Johnson, a source said on Tuesday. Johnson has been the CEO of the Tennessee Valley Authority since 2013 and is retiring on Friday.

Additional probation terms imposed by Alsup on Tuesday will require PG&E to meet goals in a wildfire mitigation plan it unveiled in February.

The goals include removing 375,000 dead, dying or hazardous trees from areas at high risk of wildfires in 2019, compared with 160,000 last year.

The judge said PG&E will not be able to pay shareholders until it complies with his new probation terms.

Shares fell 2% on Tuesday to close at $17.66 on the New York Stock Exchange and are down 63% since November 2018 due to concerns about the company's bankruptcy and wildfire liabilities, though the utility has said rates are set to stabilize in 2025 as part of its long-term plan. The shares traded as low as $5.07 in January.

PG&E in December 2017 suspended its quarterly cash dividend, while continuing to pay significant property taxes to California counties, citing uncertainty about liabilities from wildfires in October of that year that struck Northern California.

PG&E paid $798 million in dividends in 2017 and $925 million in 2016, a period in which the company did a poor job of clearing areas around its power lines of hazardous trees, according to Alsup.

Money meant for shareholders should have been spent on efforts to reduce wildfire risks in recent years, Alsup said at Tuesday's hearing.

"PG&E has started way more than its share of these fires," Alsup said.

"I want to see the people of California safe," the judge added.

Lawyers for PG&E did not contest the new terms, which the company considers more feasible than terms Alsup proposed in January.

To comply with the terms Alsup proposed in January, PG&E said it would have to remove 100 million trees. The company added that shutting power lines during high winds as Alsup proposed would not be feasible because the lines traverse rural areas to service cities and suburbs.

Idling lines could also affect the power grid in other states, PG&E said.

Alsup on Tuesday said he was still considering his proposal to require PG&E to shut down power lines during windy weather to prevent tree branches from making contact and sparking wildfires linked to power lines in the region.

 

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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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