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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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Affordable Clean Energy Rule Lawsuit pits EPA and coal industry allies against health groups over Clean Power Plan repeal, greenhouse gas emissions standards, climate change, public health, and state authority before the D.C. Circuit.

Key Points

A legal fight over EPA's ACE rule and CPP repeal, weighing emissions policy, state authority, climate, and public health.

✅ Challenges repeal of Clean Power Plan and adoption of ACE.

✅ EPA backed by coal, utilities; health groups seek stricter limits.

✅ D.C. Circuit to review emissions authority and state roles.

The largest trade association representing coal interests in the country has joined other business and electric utility groups in siding with the EPA in a lawsuit challenging the Trump administration's repeal of the Clean Power Plan.

The suit -- filed by the American Lung Association and the American Public Health Association -- seeks to force the U.S. Environmental Protection Agency to drop a new rule-making process that critics claim would allow higher levels of greenhouse gas emissions, further contributing to the climate crisis and negatively impacting public health.

The new rule, which the Trump administration calls the "Affordable Clean Energy rule" (ACE), "would replace the 2015 Clean Power Plan, which EPA has proposed to repeal because it exceeded EPA's authority. The Clean Power Plan was stayed by the U.S. Supreme Court and has never gone into effect," according to an EPA statement.

EPA has also moved to rewrite wastewater limits for coal power plants, signaling a broader rollback of related environmental requirements.

America's Power -- formerly the American Coalition for Clean Coal Electricity -- the U.S. Chamber of Commerce, the National Mining Association, and the National Rural Electric Cooperative Association have filed motions seeking to join the lawsuit. The U.S. Court of Appeals for the District of Columbia Circuit has not yet responded to the motion.

Separately, energy groups warned that President Trump and Energy Secretary Rick Perry were rushing major changes to electricity pricing that could disrupt markets.

"In this rule, the EPA has accomplished what eluded the prior administration: providing a clear, legal pathway to reduce emissions while preserving states' authority over their own grids," Hal Quinn, president and chief executive officer of the mining association, said when the new rule was released last month. "ACE replaces a proposal that was so extreme that the Supreme Court issued an unprecedented stay of the proposal, having recognized the economic havoc the mere suggestion of such overreach was causing in the nation's power grid."

Around the same time, a coal industry CEO blasted a federal agency's decision on the power grid as harmful to reliability.

The trade and business groups have argued that the Clean Power Plan, set by the Obama administration, was an overreach of federal power. Finalized in 2015, the plan was President Obama's signature policy on climate change, rooted in compliance with the Paris Climate Treaty. It would have set state limits on emissions from existing power plants but gave wide latitude for meeting goals, such as allowing plant operators to switch from coal to other electric generating sources to meet targets.

Former EPA Administrator Scott Pruitt argued that the rule exceeded federal statutory limits by imposing "outside the fence" regulations on coal-fired plants instead of regulating "inside the fence" operations that can improve efficiency.

The Clean Power Plan set a goal of reducing carbon emissions from power generators by 32 percent by the year 2030. An analysis from the Rhodium Group found that had states taken full advantage of the CPP's flexibility, emissions would have been reduced by as much as 72 million metric tons per year on average. Still, even absent federal mandates, the group noted that states are taking it upon themselves to enact emission-reducing plans based on market forces.

In its motion, America's Power argues the EPA "acknowledged that the [Best System of Emission Reduction] for a source category must be 'limited to measures that can be implemented ... by the sources themselves.'" If plants couldn't take action, compliance with the new rule would require the owners or operators to buy emission rate credits that would increase investment in electricity from gas-fired or renewable sources. The increase in operating costs plus federal efforts to shift power generation to other sources of energy, thereby increasing costs, would eventually force the coal-fired plants out of business.

In related proceedings, renewable energy advocates told FERC that a DOE proposal to subsidize coal and nuclear plants was unsupported by the record, highlighting concerns about market distortions.

"While we are confident that EPA will prevail in the courts, we also want to help EPA defend the new rule against others who prefer extreme regulation," said Michelle Bloodworth, president and CEO of America's Power.

"Extreme regulation" to one group is environmental and health protections to another, though.

Howard A. Learner, executive director of the Environmental Law & Policy Center of the Midwest, defended the Clean Power Plan in an opinion piece published in June.

"The Midwest still produces more electricity from coal plants than any other region of the country, and Midwesterners bear the full range of pollution harms to public health, the Great Lakes, and overall environmental quality," Learner wrote. "The new [Affordable Clean Energy] Rule is a misguided policy, moves our nation backward in solving climate change problems, and misses opportunities for economic growth and innovation in the global shift to renewable energy. If not reversed by the courts, as it should be, the next administration will have the challenge of doing the right thing for public health, the climate and our clean energy future."

When it initially filed its lawsuit against the Trump administration's Affordable Clean Energy Rule, the American Lung Association accused the EPA of "abdicat[ing] its legal duties and obligations to protect public health." It also referred to the new rule as "dangerous."

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Brazil ICMS Tax Cap limits state VAT on fuels, natural gas, electricity, communications, and transit, promising short-term price relief amid inflation, with federal compensation to states and potential legal challenges affecting investments and ANP auctions.

Key Points

A policy capping state VAT at 17-18 percent on fuels, electricity, and services to temper prices and inflation.

✅ Caps VAT to 17-18% on fuels, power, telecom, transit

✅ Short-term relief; medium-long term impact uncertain

✅ Federal compensation; potential court challenges, investment risk

Brazil’s congress approved a bill that limits the ICMS tax rate that state governments can charge on fuels, natural gas, electricity, communications, and public transportation. 

Local lawyers told BNamericas that the measure may reduce fuel and power prices in the short term, similar to Brazil power sector relief loans seen during the pandemic, but it is unlikely to produce any major effects in the medium and long term. 

In most states the ceiling was set at 17% or 18% and the federal government will pay compensation to the states for lost tax revenue until December 31, via reduced payments on debts that states owe the federal government.

The bill will become law once signed by President Jair Bolsonaro, who pushed strongly for the proposal with an eye on his struggling reelection campaign for the October presidential election. Double-digit inflation has turned into a major election issue and fuel and electricity prices have been among the main inflation drivers, as seen in EU energy-driven inflation across the bloc this year. Congress’ approval of the bill is seen by analysts as political victory for the Brazilian leader.

How much difference will it make?

Marcus Francisco, tax specialist and partner at Villemor Amaral Advogados, said that in the formation of fuel and electricity prices there are other factors, including high natural gas prices, that drive increases.

“In the case of fuels, if the barrel of oil [price] increases, automatically the final price for the consumer will go up. For electricity, on the other hand, there are several subsidies and policy choices such as Florida rejecting federal solar incentives that are part of the price and that can increase the rate [paid],” he said. 

There is also a possibility that some states will take the issue to the supreme court since ICMS is a key source of revenue for them, Francisco added.

Tiago Severini, a partner at law firm Vieira Rezende, said the comparison between the revenue impact and the effective price reduction, based on the estimates made by the states and the federal government, seems disproportionate, and, as seen in Europe, rolling back European electricity prices is often tougher than it appears. 

“In other words, a large tax collection impact is generated, which is quite unequal among the different states, for a not so strong price reduction,” he said.

“Due to the lack of clarity regarding the precision of the calculations involved, it’s difficult even to assess the adequacy of the offsets the federal government has been considering, and international cases such as France's new electricity pricing scheme illustrate how complex it can be to align fiscal offsets with regulatory constraints, to cover the cost it would have with the compensation for the states” Severini added.

The compensation ideas that are known so far include hiking other taxes, such as the social contribution on net profits (CSLL) that is paid by oil and gas firms focused on exploration and production.

“This can generate severe adverse effects, such as legal disputes, reduced investments in the country, and reduced attractiveness of the new auctions by [sector regulator] ANP, and costly interventions like the Texas electricity market bailout after extreme weather events,” Severini said. 

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Alberta Electricity Demand Record surges during a deep freeze, as AESO reports peak load in megawatts and ENMAX notes increased usage in Calgary and Edmonton, with thermostats up amid a cold snap straining power grid.

Key Points

It is the highest electricity peak load recorded by AESO, reflecting maximum grid usage during cold snaps.

✅ AESO reported 11,729 MW peak during the deep freeze

✅ ENMAX saw a 13 percent demand jump week over week

✅ Cold snap drove thermostats up in Calgary and Edmonton

Albertans are cranking up their thermostats and blasting heat into their homes at overwhelmingly high rates as the deep freeze continues across the region. 

It’s so cold that the province set a new all-time record Tuesday evening for electricity usage. 

According to the Alberta Electric System Operator (AESO), as electricity prices spike in Alberta during extreme demand, 11,729 MW of power was used around 7 p.m. Tuesday, passing the previous record set in January of last year by 31 MW.

Temperatures reached a low of -29 C in Calgary, where rising electricity bills have strained budgets, on Tuesday while Edmonton saw a low of -30 C, according to Environment Canada. Wind chill  made it feel closer to -40.

“That increase — 31 Megawatts — is sizeable and about the equivalent of a moderately sized generation facility,” said AESO communications director, Mike Deising. 

“We do see higher demand in winter because it’s cold and it’s dark and that’s really exactly what we’re seeing right now as demand goes up, people turn on their lights and turn up their furnaces,” and with the UCP scrapping the price cap earlier that’s really exactly what we’re seeing right now as demand goes up, people turn on their lights and turn up their furnaces.”

Deising adds Alberta’s electricity usage over the last year has actually been much lower than average, though experts urge Albertans to lock in rates amid expected volatility, despite more people staying home during the pandemic. 

That trend was continuing into 2021, but as Alberta's rising electricity prices draw attention, it’s expected that more records could be broken. 

“If the cold snap continues we may likely set another record (Wednesday) or (Thursday), depending on what happens with the temperatures,” he said. 

Meanwhile, ENMAX has reported an average real-time system demand of 1,400 MW for the city of Calgary. 

That amount is still a far cry from the current season record of 1,619 MW (Aug. 18, 2020), the all-time winter record of 1,653MW (Dec. 2, 2013), and the all-time summer record of 1,692 MW (Aug. 10, 2018). 

ENMAX says electricity demand has increased quite significantly over the past week — by about 13 per cent — since the cold snap set in. 

As a result, the energy company is once again rolling out its ‘Winter Wise’ campaign in an effort to encourage Calgarians to manage both electricity and natural gas use in the winter, even as a consumer price cap on power bills is enabled by new legislation.

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Canadian Industrial IoT Cybersecurity Standards aim to unify device security for utilities, smart grids, SCADA, and OT systems, aligning with NERC CIP, enabling certification, trust marks, compliance testing, and safer energy sector deployments.

Key Points

National standards to secure industrial IoT for utilities and grids, enabling certification and NERC CIP alignment.

✅ Aligns with NERC CIP and NIST frameworks for energy sector security

✅ Defines certification, testing tools, and a trusted device repository

✅ Enhances OT, SCADA, and smart grid resilience against cyber threats

The Canadian energy sector has been buying Internet-connected sensors for monitoring a range of activities in generating plants, distribution networks facing harsh weather risks and home smart meters for several years. However, so far industrial IoT device makers have been creating their own security standards for devices, leaving energy producers and utilities at their mercy.

The industry hopes to change that by creating national cybersecurity standards for industrial IoT devices, with the goal of improving its ability to predict, prevent, respond to and recover from cyber threats, such as emerging ransomware attacks across the grid.

To help, the federal government today announced an $818,000 grant support a CIO Strategy Council project oversee the setting of standards.

In an interview council executive director Keith Jansa said the money will help a three-year effort that will include holding a set of cross-country meetings with industry, government, academics and interest groups to create the standards, tools to be able to test devices against the standards and the development of product repository of IoT safe devices companies can consult before making purchases.

“The challenge is there are a number of these devices that will be coming online over the next few years,” Jansa said. “IoT devices are designed for convenience and not for security, so how do you ensure that a technology an electricity utility secures is in fact safeguarded against cyber threats? Currently, there is no associated trust mark or certification that gives confidence associated with these devices.”

He also said the council will work with the North American Electric Reliability Corporation (NERC), which sets North American-wide utility safety procedural standards and informs efforts on protecting the power grid across jurisdictions. The industrial IoT standards will be product standards.

According to Robert Wong, vice-president and CIO of Toronto Hydro, all the big provincial utilities are subject to adhering to NERC CIP standards which have requirements for both cyber and physical security. Ontario is different from most provinces in that it has local distribution companies — like Toronto Hydro — which buy electricity in bulk and resell it to customers.  These LDCs don’t own or operate critical infrastructure and therefore don’t have to follow the NERC CIP standards.

Regional reforms, such as regulatory changes in Atlantic Canada, aim to bring greener power options to the grid.

Electricity is considered around the world as one of a country’s critical national infrastructure. Threats to the grid can be used for ransom or by a country for political pressure. Ukraine had its power network knocked offline in 2015 and 2016 by what were believed to be Russian-linked attackers operating against utilities.

All the big provincial utilities operate “critical infrastructure” and are subject to adhering to NERC CIP (critical infrastructure protection) standards, which have requirements for both cyber and physical security, as similar compromises at U.S. electric utilities have highlighted recently.  There are audited on a regular basis for compliance and can face hefty fines if they fail to meet the requirements.  The LDCs in Ontario don’t own or operate “critical infrastructure” and therefore are not required to adopt NERC CIP standards (at least for now).

The CIO Strategy Council is a forum for chief information officers that is helping set standards in a number of areas. In January it announced a partnership with the Internet Society’s Canada Chapter to create standards of practice for IoT security for consumer devices. As part of the federal government’s updated national cybersecurity strategy it is also developing a national cybersecurity standard for small and medium-sized businesses. That strategy would allow SMBs to advertise to customers that they meet minimum security requirements.

“The security of Canadians and our critical infrastructure is paramount,” federal minister of natural resources Seamus O’Regan said in a statement with today’s announcement. “Cyber attacks are becoming more common and dangerous. That’s why we are supporting this innovative project to protect the Canadian electricity sector.”

The announcement was welcomed by Robert Wong, Toronto Hydro’s vice-president and CIO. “Any additional investment towards strengthening the safeguards against cyberattacks to Canada’s critical infrastructure is definitely good news.  From the perspective of the electricity sector, the convergence of IT and OT (operational technology) has been happening for some time now as the traditional electricity grid has been transforming into a Smart Grid with the introduction of smart meters, SCADA systems, electronic sensors and monitors, smart relays, intelligent automated switching capabilities, distributed energy resources, and storage technologies (batteries, flywheels, compressed air, etc.).

“In my experience, many OT device and system manufacturers and vendors are still lagging the traditional IT vendors in incorporating Security by Design philosophies and effective security features into their products.  This, in turn, creates greater risks and challenges for utilities to protecting their critical infrastructures and ensuring a reliable supply of electricity to its customers.”

The Ontario Energy Board, which regulates the industry in the province, has led an initiative for all utilities to adopt the National Institute of Standards and Technology (NIST) Cybersecurity Framework, along with the ES-C2M2 maturity and Privacy By Design models, he noted.  Toronto Hydro has been managing its cybersecurity practice in adherence to these standards, as the city addresses growing electricity needs as well, he said.

“Other jurisdictions, such as Israel, have invested heavily on a national level in developing its cybersecurity capabilities and are seen as global leaders.  I am confident that given the availability of talent, capabilities and resources in Canada (especially around the GTA) if we get strong support and leadership at a federal level we can also emerge as a leader in this area as well.”

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NYSERDA Offshore Wind Data initiative funds geophysical and geotechnical surveys, seabed and soil studies on New York's shelf to accelerate siting, optimize foundation design, reduce costs, and advance clean energy deployment.

Key Points

State funding to support surveys and soil studies guiding offshore wind siting, design, and cost reduction.

✅ Up to $5.5M for geophysical and geotechnical data collection

✅ Focus on seabed soils, shelf geology, and foundation design inputs

✅ Accelerates siting, reduces risk, and lowers offshore wind costs

The New York State Energy Research and Development Authority (NYSERDA) is investing up to $5.5 million for the collection of geophysical and geotechnical data to determine future offshore wind development sites.

The funding is to look at seabed soil and geological data for the preliminary design and installation requirements for future offshore wind projects. Its part of N.Y. Gov. Andrew Cuomos plan to develop 9,000 megawatts of offshore wind energy by 2035.

Todays announcement is another step in Governor Cuomos steadfast march to achieving 9,000 megawatts of offshore wind by 2035, putting New York in a clear national leadership position when it comes to advancing this new industry through large-scale energy projects across the state. The surveys NYSERDA will be funding under this solicitation will expand the offshore wind industrys access to geophysical and geotechnical data that will provide the foundation for future offshore wind development in these areas, and accelerate project development while driving down costs, NYSERDA President and CEO Alicia Barton said.

NYSERDA will select one or more contractors to do the investigations, while recent DOE wind energy awards support complementary research, and develop a model for describing geophysical and geotechnical conditions. NYSERDA will also select a contractor to support project management and host the data that is collected. The submission deadline is Jan. 21, 2020.

Todays announcement builds on the data collected in a Geotechnical and Geophysical Desktop Study also released today, which includes information on the middle continental shelf off the shore of New York and New Jersey, where BOEM lease requests are shaping activity, creating a regional overview of the seafloor and sub-seafloor environment as it relates to offshore wind development.

Strong knowledge of environmental conditions and factors, including seabed soil conditions, are essential for the installation of offshore projects, such as Long Island proposals, but only a limited amount of soil sampling and testing has been undertaken to date.

The collection of geophysical and geotechnical data from areas off of New Yorks Atlantic coast is yet another demonstration of New Yorks leadership promoting the responsible development of offshore wind. The data generated by this initiative will ultimately lead to better projects, lower cost, and enhanced safety. New York is leading the way to a clean energy future, as the state finalizes renewable project contracts that expand capacity, and relying on data collection and sound science to get us there, New York Offshore Wind Alliance Director Joe Martens said.

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