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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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Louisiana Grid Rebuild After Hurricane Laura will overhaul transmission lines and distribution networks in Lake Charles, as Entergy restores power after catastrophic outages, replacing poles, transformers, and spans to stabilize critical electric infrastructure.

Key Points

Entergy's project replacing transmission and distribution in Lake Charles to restore power after the Cat 4 storm

✅ 1,000+ transmission structures and 6,637 poles damaged

✅ Entergy targets first energized line into Lake Charles in 2 weeks

✅ Full rebuild of Calcasieu and Cameron lines will take weeks

The main power utility for southwest Louisiana will need to "rebuild" the region's grid after Hurricane Laura blasted the region with 150 mph winds last week, top officials said.

The Category 4 hurricane made landfall last Thursday just south of Lake Charles near Cameron, damaging or destroying thousands of electric poles as well as leaving "catastrophic damages" to the transmission system for southwest Louisiana, similar to impacts seen during Typhoon Mangkhut outages in Hong Kong that left many without electricity.

“This is not a restoration," Entergy Louisiana president and CEO Phillip May said in a statement. "It’s almost a complete rebuild of our transmission and distribution system that serves Calcasieu and Cameron parishes.”

According to Entergy, all nine transmission lines that deliver power into the Lake Charles area are currently out service due to storm damage to multiple structures and spans of wire.

The transmission system is a critical component in the delivery of power to customers’ homes, and failures at substations can trigger large outages, as seen in Los Angeles station fire outage reported recently, according to the company.

Of those structures impacted, many were damaged "beyond repair" and require complete replacement.

Broken electrical poles are seen in Holly Beach, La., in the aftermath of Hurricane Laura, Saturday, Aug. 29, 2020. (AP Photo/Gerald Herbert)

Entergy said the damage in southwest Louisiana includes 1,000 transmission structures, 6,637 broken poles, 2,926 transformers and 338 miles of downed distribution wire, highlighting why proactive reliability investments in Hamilton are being pursued by other utilities.

Some 8,300 workers are now in the area working to rebuild the transmission lines, but Entergy said that it will be about two to three weeks before power is available to customers in the Lake Charles area, a timeline similar to Tennessee outages after severe storms reported recently in other states.

"Restoring power will take longer to customers in inaccessible areas of the region," the company said. "While not impacting the expected restoration of service to residential customers, initial estimates are it will take weeks to rebuild all transmission lines in Calcasieu and Cameron parishes."

Entergy Louisiana expects to energize the first of its transmission lines into Lake Charles in two weeks.

“We understand going without power for this extended period will be challenging, and this is not the news customers want to hear. But we have thousands of workers dedicated to rebuilding our grid as quickly as they safely can to return some normalcy to our customers’ lives,” May said.

According to power outage tracking website poweroutage.us, over 164,000 customers remain without service in Louisiana as of Thursday morning, while a Carolinas outage update shows hundreds of thousands affected there as well.

On Wednesday, the Edison Electric Institute, the association of investor-owned electric companies in the U.S., said in a statement to FOX Business that electricity has been restored to approximately 737,000 customers, or 75% of those impacted by the storm across Louisiana, eastern Texas, Mississippi, and Arkansas, even as utilities adapt to climate change to improve resilience.

At least 29,000 workers from 29 states, the District of Columbia and Canada are working to restore power in the region, according to the Electricity Subsector Coordinating Council (ESCC), which is coordinating efforts from government and power industry.

“The transmission loss in Louisiana is significant, with more than 1,000 transmission structures damaged or destroyed by the storm," Department of Energy (DOE) Deputy Secretary Mark Menezes said in a statement. Rebuilding the transmission system is essential to the overall restoration effort and will take weeks given the massive scale and complexity of the work. We will continue to coordinate closely to ensure the full capabilities of the industry and government are marshaled to rebuild this critical infrastructure as quickly as possible.” 

At least 17 deaths in Louisiana have been attributed to the storm; more than half of those killed by carbon monoxide poisoning from the unsafe operation of generators, and residents are urged to follow generator safety tips to reduce these risks. Two additional deaths were verified on Wednesday in Beauregard Parish, which health officials said were due to heat-related illness following the storm.

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Washington County solar farm incentives aim to steer projects to industrial sites with tax breaks, underground grid connections, decommissioning bonds, and wildlife corridors, balancing zoning, historic preservation, and Maryland renewable energy mandates.

Key Points

Policies steer solar to industrial sites with tax breaks, buried lines, and bonds, aligning with zoning and state goals.

✅ Tax breaks to favor rooftops and parking canopies

✅ Bury new grid lines to shift projects to industrial parks

✅ Require decommissioning bonds and wildlife corridors

Incentives for establishing solar farms at industrial spaces instead of on prime farmland are among the ideas the Washington County Planning Commission is recommending for the county to update its policies regarding solar farms.

Potential incentives would include tax breaks on solar equipment and requiring developers to put power-grid connections and line extensions underground, a move tied to grid upgrade cost debates in other regions, Planning Commission members said during a Monday meeting.

The tax break could make it more attractive for a developer to put a solar farm on a roof or over a parking lot, similar to California's building-solar requirement policies that favor rooftop generation, which could cost more than putting it on farmland, said Commission member Dave Kline, who works for FirstEnergy.

Requiring a company to bury new transmission lines could steer them to industrial or business parks where, theoretically, transmission lines are more readily available, Kline said Wednesday in a phone interview.

Chairman Clint Wiley suggested talking to industrial property owners to create a list of industrial sites that make sense for a solar site, which could generate extra income for the property owner.

Commission members also talked about requiring a wildlife corridor. Anne Arundel County requires such a corridor if a solar site is over 15 acres, according to Jill Baker, deputy director of planning and zoning. The solar site is broken into sections so animals such as deer can get through, she said.

However, that means the solar farm would take up more agricultural land, Commission member Jeremiah Weddle said. Weddle, a farmer, has repeatedly voiced concerns about solar farms using prime farmland.

County zoning law already states solar farms are prohibited in Rural Legacy Areas, Priority Preservation Areas, and within Antietam Overlay zones that preserve the Antietam National Battlefield viewshed. They also cannot be built on land with permanent preservation easements, Baker said.

However, a big reason county officials are looking to strengthen county policies for solar generating systems, or solar farms, is a recent court decision that ruled the Maryland Public Service Commission can preempt county zoning law when it comes to large solar farms.

County zoning law defines a solar energy generating system as a solar facility, with multiple solar arrays, tied into the power grid and whose primary purpose is to generate power to distribute and/or sell into the public utility grid rather than consuming that power on site.

The Maryland Court of Appeals ruled in July that the Public Service Commission can preempt local zoning regarding solar farms larger than 2 megawatts. But the ruling also stated local government is a "significant participant in the process" and the state commission must give "due consideration" to local zoning laws.

County officials are looking at recommendations for solar farms, whether they are over 2 megawatts or not.

Solar farms are a popular issue statewide, especially with Maryland solar subscriptions expanding, and were discussed at a recent Maryland Association of Counties meeting for planners, Planning and Zoning Director Stephen Goodrich said.

The thinking is the best way for counties to express their opinions about a solar project is to participate in the state commission's local public hearings, where issues like how solar owners are paid often arise, Goodrich said. Another popular idea is for the county to continue to follow its process, which requires a public hearing for a special exception to establish a solar farm. That will help the county form an opinion, on individual cases, to offer the state commission, he said.

Recommendations discussed by the Planning Commission include:

A break on personal property taxes, which is on equipment, including affordable battery storage that can firm output, to steer developers away from areas where the county doesn't want solar farms. The Board of County Commissioners have been split on tax-break agreements for solar farms, with a majority recently granting a few.

Protecting valuable historic sites.

Requiring a decommissioning bond for removing the equipment at the end of the solar farm's life. The bond is protection in case the company goes bankrupt. The county commissioners have been making such a bond a requirement when granting recent tax breaks.

Looking at allowing solar farms in stormwater-management areas.

Other counties, particularly in Western Maryland and on the Eastern Shore, are having issues with solar farms even as research to improve solar and wind advances, because land is cheaper and there are wide-open spaces, Goodrich said.

Many solar projects are being developed or proposed because state lawmakers passed legislation requiring 50% of electricity produced in the state to come from renewable sources by 2030, and a federal plan to expand solar is also shaping expectations. Of that 50%, 14.5% is to come from solar energy.

In Maryland, the average number of homes that can be powered by 1 megawatt of solar energy is about 110, according to the Solar Energy Industries Association's website.

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Ontario Clean Grid Plan outlines emissions-free electricity growth, renewable energy procurement, nuclear expansion at Bruce and Darlington, reduced natural gas, grid reliability, and net-zero alignment to meet IESO demand forecasts and EV manufacturing loads.

Key Points

A plan to expand emissions-free power via renewables and nuclear, cut natural gas use, and meet growing demand.

✅ Targets renewables, hydro, and nuclear capacity growth

✅ Aims to reduce reliance on gas for grid reliability

✅ Aligns with IESO demand forecasts and EV manufacturing loads

Ontario is working toward filling all of the province’s quickly growing electricity needs with emissions-free sources, including a plan to secure new renewable generation and clean power options, but isn’t quite ready to commit to a moratorium on natural gas.

Energy Minister Todd Smith announced Monday a plan to address growing energy needs for 2030 to 2050 — the Independent Electricity System Operator projects Ontario’s electricity demand could double by mid-century — and next steps involve looking for new wind, solar and hydroelectric power.

“While we may not need to start building today, government and those in the energy sector need to start planning immediately, so we have new clean, zero-emissions projects ready to go when we need them,” Smith said in Windsor, Ont.

The strategy also includes two nuclear projects announced last week — a new large-scale nuclear plant at Bruce Power on the shore of Lake Huron and three new small modular reactors at the site of the Darlington nuclear plant east of Toronto.

Those projects, enough to power six million homes, will help Ontario end its reliance on natural gas to generate electricity, said Smith, but committing to a natural gas moratorium in 2027 and eliminating natural gas by 2050 is contingent on the federal government helping to speed up the new nuclear facilities.

“Today’s report, the Powering Ontario’s Growth plan, commits us to working towards a 100 per cent clean grid,” Smith said in an interview.

“Hopefully the federal government can get on board with our intentions to build this clean generation as quickly as possible … That will put us in a much better position to use our natural gas facilities less in the future, if we can get those new projects online.”

The IESO has said that natural gas is required to ensure supply and stability in the short to medium term, as Ontario works on balancing demand and emissions across the grid, but that it will also increase greenhouse gas emissions from the electricity sector.

The province is expected to face increased demand for electricity from expanded electric vehicle use and manufacturing in the coming years, even as a $400-billion cost estimate for greening the grid is debated.

Keith Brooks, programs director for Environmental Defence, said the provincial plan could have been much more robust, containing firm timelines and commitments.

“This plan does not commit to getting emissions out of the system,” he said.

“It doesn’t commit to net zero, doesn’t set a timeline for a net zero goal or have any projection around emissions from Ontario’s electricity sector going forward. In fact, it’s not really a plan. It doesn’t set out any real goals and it doesn’t it doesn’t project what Ontario’s supply mix might look like.”

The Canadian Climate Institute applauded the plan’s focus on reducing reliance on gas-fired generation and emphasizing non-emitting generation, but also said there are still some question marks.

“The plan is silent on whether the province intends to construct new gas-fired generation facilities,” even as new gas plant expansions are proposed, senior research director Jason Dion wrote in a statement.

“The province should avoid building new gas plants since cost-effective alternatives are available, and such facilities are likely to end up as stranded assets. The province’s timeline for reaching net zero generation is also unclear. Canada and other G7 countries have set a target for 2035, something Ontario will need to address if it wants to remain competitive.”

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Ontario Comprehensive Electricity Plan delivers Global Adjustment reductions for industrial and commercial non-RPP customers, lowering electricity rates, shifting renewable energy costs, and enhancing competitiveness across Ontario businesses in 2022, with additional 4 percent savings.

Key Points

Ontario's plan lowers Global Adjustment by shifting renewable costs, cutting industrial and commercial bills 15-17%.

✅ Shifts above-market non-hydro renewable costs to the Province

✅ Reduces GA for industrial and commercial non-RPP customers

✅ Additional 4% savings on 2022 bills after GA deferral

As of January 1, 2022, industrial and commercial electricity customers will benefit from the full savings introduced through the Ontario government’s Comprehensive Electricity Plan, which supports stable electricity pricing for industrial and commercial companies, announced in Budget 2020, and first implemented in January 2021. This year customers could see an additional four percent savings compared to their bills last year, bringing the full savings from the Comprehensive Electricity Plan to between 15 and 17 per cent, making Ontario a more competitive place to do business.

“Our Comprehensive Electricity Plan has helped reverse the trend of skyrocketing electricity prices that drove jobs out of Ontario,” said Todd Smith, Minister of Energy. “Over 50,000 customers are benefiting from our government’s plan which has reduced electricity rates on clean and reliable power, allowing them to focus on reinvesting in their operations and creating jobs here at home.”

Starting on January 1, 2021, the Comprehensive Electricity Plan reduced overall Global Adjustment (GA) costs for industrial and commercial customers who do not participate in the Regulated Price Plan (RPP) by shifting the forecast above-market costs of non-hydro renewable energy, such as wind, solar and bioenergy, from the rate base to the Province, alongside energy-efficiency programs that complement demand reduction efforts.

“Since taking office, our government has listened to job creators and worked to lower the costs of doing business in the province. Through these significant reductions in electricity prices through the Comprehensive Electricity Plan, customers all across Ontario will benefit from significant savings in their business operations in 2022,” said Vic Fedeli, Minister of Economic Development, Job Creation and Trade. “By continuing to reduce electricity costs, lowering taxes, and cutting red tape our government has reduced the cost of doing business in Ontario by nearly $7 billion annually to ensure that we remain competitive, innovative and poised for economic recovery.”

As part of its COVID response, including electricity relief for families and small businesses, Ontario had deferred a portion of GA between April and June 2020 for industrial and non-RPP commercial customers, with more than 50,000 customers benefiting. Those same businesses paid back these deferred GA costs over 12 months, between January 2021 and December 2021, while the province prepared to extend disconnect moratoriums for residential customers.

During the pandemic, residential electricity use rose even as overall consumption dropped, underscoring shifts in load patterns.

Now that the GA deferral repayment period is over, industrial and non-RPP commercial customers will benefit from the full cost reductions provided to them by the Comprehensive Electricity Plan, alongside temporary off-peak rate relief that supported families and small businesses. This means that, beginning January 1, 2022, these businesses could see an additional four per cent savings on their bills compared to 2021, as new ultra-low overnight pricing options emerge depending on their location and consumption.

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BC Hydro LNG Load Forecast signals rising electricity demand from LNG Canada, Woodfibre, and Tilbury, aligning Site C dam capacity with BCUC review, hydroelectric supply, and a potential fourth project in feasibility study British Columbia.

Key Points

BC Hydro's projection of LNG-driven power demand, guiding Site C capacity, BCUC review, and grid planning.

✅ Includes LNG Canada, Woodfibre, and Tilbury load requests

✅ Aligns Site C hydroelectric output with industrial electrification

✅ Notes feasibility study for a fourth LNG project

Despite recent project cancellations, such as the Siwash Creek independent power project now in limbo, BC Hydro still expects three LNG projects — and possibly a fourth, which is undergoing a feasibility study — will need power from its controversial and expensive Site C hydroelectric dam.

In a letter sent to the British Columbia Utilities Commission (BCUC) on Oct. 3, BC Hydro’s chief regulatory officer Fred James said the provincially owned utility’s load forecast includes power demand for three proposed liquefied natural gas projects because they continue to ask the company for power.

The letter and attached report provide some detail on which of the LNG projects proposed in B.C. are more likely to be built, given recent project cancellations.

The documents are also an attempt to explain why BC Hydro continues to forecast a surge in electricity demand in the province, as seen in its first call for power in 15 years driven by electrification, even though massive LNG projects proposed by Malaysia’s state owned oil company Petronas and China’s CNOOC Nexen have been cancelled.

An explanation is needed because B.C.’s new NDP government had promised the BCUC would review the need for the $9-billion Site C dam, which was commissioned to provide power for the province’s nascent LNG industry, amid debates over alternatives like going nuclear among residents. The commission had specifically asked for an explanation of BC Hydro’s electric load forecast as it relates to LNG projects by Wednesday.

The three projects that continue to ask BC Hydro for electricity are Shell Canada Ltd.’s LNG Canada project, the Woodfibre LNG project and a future expansion of FortisBC’s Tilbury LNG storage facility.

None of those projects have officially been sanctioned but “service requests from industrial sector customers, including LNG, are generally included in our industrial load forecast,” the report noted, even as Manitoba Hydro warned about energy-intensive customers in a separate notice.

In a redacted section of the report, BC Hydro also raises the possibility of a fourth LNG project, which is exploring the need for power in B.C.

“BC Hydro is currently undertaking feasibility studies for another large LNG project, which is not currently included in its Current Load Forecast,” one section of the report notes, though the remainder of the section is redacted.

The Site C dam, which has become a source of controversy in B.C. and was an important election issue, is currently under construction and, following two new generating stations recently commissioned, is expected to be in service by 2024, a timeline which had been considered to provide LNG projects with power by the time they are operational.

BC Hydro’s letter to the BCUC refers to media and financial industry reports that indicate global LNG markets will require more supply by 2023.

“While there remains significant uncertainty, global LNG demand will continue to grow and there is opportunity for B.C. LNG,” the report notes.

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