Salmon and electricity at center of Columbia River treaty negotiations


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Columbia River Treaty Negotiations involve Canada-U.S. talks on B.C. dams, flood control, hydropower sharing, and downstream benefits, prioritizing ecosystem health, First Nations rights, and salmon restoration while balancing affordable electricity for northwest consumers.

 

Key Points

Talks to update flood control, hydropower, and ecosystem terms for fair benefits to B.C. and U.S. communities.

✅ Public consultations across B.C.'s Columbia Basin

✅ First Nations priorities include salmon restoration

✅ U.S. seeks cheaper power; B.C. defends downstream benefits

 

With talks underway between Canada and the U.S. on the future of the Columbia River Treaty, the B.C. New Democrats have launched public consultations in the region most affected by the high-stakes negotiation.

“We want to ensure Columbia basin communities are consulted, kept informed and have their voices heard,” said provincial cabinet minister Katrine Conroy via a press release announcing meetings this month in Castlegar, Golden, Revelstoke, Nakusp, Nelson and other communities.

As well as having cabinet responsibility for the talks, Conroy’s Kootenay West riding includes several places that were inundated under the terms of the 1964 flood control and power generation treaty.

“We will continue to work closely with First Nations affected by the treaty, to ensure Indigenous interests are reflected in the negotiations,” she added by way of consolation to Indigenous people who’ve been excluded from the negotiating teams on both sides of the border.

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The stakes are also significant for the province as a whole. The basics of the treaty saw B.C. build dams to store water on this side of the border, easing the flood risk in the U.S. and allowing the flow to be evened out through the year. In exchange, B.C. was entitled to a share of the additional hydro power that could be generated in dams on the U.S. side.

B.C.’s sale of those downstream benefits to the U.S has poured almost $1.4 billion into provincial coffers over the past 10 years, albeit at a declining rate these days amid scrutiny from a regulator report on BC Hydro that raised concerns, because of depressed prices for cross-border electricity sales.

Politicians on the U.S. side have long sought to reopen the treaty, believing there was now a case for reducing B.C.’s entitlement.

They did not get across the threshold under President Barack Obama.

Then, last fall his successor Donald Trump served notice of intent, initiating the formal negotiations that commenced with a two day session last week in Washington, D.C. The next round is set for mid-August in B.C.

American objectives in the talks include “continued, careful management of flood risk; ensuring a reliable and economical power supply; and better addressing ecosystem concerns,” with recognition of recent BC Hydro demand declines during the pandemic.

“Economical power supply,” being a diplomatic euphemism for “cheaper electricity for consumers in the northwest states,” achievable by clawing back most of B.C.’s treaty entitlement.

On taking office last summer, the NDP inherited a 14-point statement of principles setting out B.C. hopes for negotiations to “continue the treaty” while “seeking improvements within the existing framework” of the 54-year-old agreement.

The New Democrats have endorsed those principles in a spirit of bipartisanship, even as Manitoba Hydro governance disputes play out elsewhere in Canada.

“Those principles were developed with consultation from throughout the region,” as Conroy advised the legislature this spring. “So I was involved, as well, in the process and knew what the issues were, right as they would come up.”

The New Democrats did chose to put additional emphasis on some concerns.

“There is an increase in discussion with Canada and First Nations on the return of salmon to the river,” she advised the house, recalling how construction of the enormous Grand Coulee Dam on the U.S. side in the 1930s wiped out salmon runs on the upper Columbia River.

“There was no consideration then for how incredibly important salmon was, especially to the First Nations people in our region. We have an advisory table that is made up of Indigenous representation from our region, and also we are discussing with Canada that we need to see if there’s feasibility here.”

As to feasibility, the obstacles to salmon migration in the upper reaches of the Columbia include the 168-metre high Grand Coulee and the 72-metre Chief Joseph dams on the U.S. side, plus the Keenleyside (52 metres), Revelstoke (175 metres) and Mica (240 metres) dams on the Canadian side.

Still, says Conroy “the First Nations from Canada and the tribes from the United States, have been working on scientific and technical documents and research to see if, first of all, the salmon can come up, how they can come up, and what the things are that have to be done to ensure that happens.”

The New Democrats also put more emphasis on preserving the ecosystem, aligning with clean-energy efforts with First Nations that support regional sustainability.

“I know that certainly didn’t happen in 1964, but that is something that’s very much on the minds of people in the Columbia basin,” said Conroy. “If we are going to tweak the treaty, what can we do to make sure the voices of the basin are heard and that things that were under no consideration in the ’60s are now a topic for consideration?”

With those new considerations, there’s still the status quo concern of preserving the downstream benefits as a trade off for the flooding and other impacts on this side of the border.

The B.C. position on that score is the same under the New Democrats as it was under the Liberals, despite a B.C. auditor general report on deferred BC Hydro costs.

“The level of benefits to B.C., which is currently solely in the form of the (electricity) entitlement, does not account for the full range of benefits in the U.S. or the impacts in B.C.,” says the statement of principle.

“All downstream U.S. benefits such as flood risk management, hydropower, ecosystems, water supply (including municipal, industrial and agricultural uses), recreation, navigation and other related benefits should be accounted for and such value created should be shared equitably between the two countries.”

No surprise if the Americans do not see it the same way.  But that is a topic for another day.

 

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What Will Drive Utility Revenue When Electricity Is Free?

AI-Powered Utility Customer Experience enables transparency, real-time pricing, smart thermostats, demand response, and billing optimization, helping utilities integrate distributed energy resources, battery storage, and microgrids while boosting customer satisfaction and reducing costs.

 

Key Points

An approach where utilities use AI and real-time data to personalize service, optimize billing, and cut energy costs.

✅ Real-time pricing aligns retail and wholesale market signals

✅ Device control via smart thermostats and home energy management

✅ Analytics reveal appliance-level usage and personalized savings

 

The latest electric utility customer satisfaction survey results from the American Customer Satisfaction Index (ACSI) Energy Utilities report reveal that nearly every investor-owned utility saw customer satisfaction go down from 2018 to 2019. Residential customers are sending a clear message in the report: They want more transparency and control over energy usage, billing and ways to reduce costs.

With both customer satisfaction and utility revenues on the decline, utilities are facing daunting challenges to their traditional business models amid flat electricity demand across many markets today. That said, it is the utilities that see these changing times as an opportunity to evolve that will become the energy leaders of tomorrow, where the customer relationship is no longer defined by sales volume but instead by a utility company's ability to optimize service and deliver meaningful customer solutions.

We have seen how the proliferation of centralized and distributed renewables on the grid has already dramatically changed the cost profile of traditional generation and variability of wholesale energy prices. This signals the real cost drivers in the future will come from optimizing energy service with things like batteries, microgrids and peer-to-peer trading networks. In the foreseeable future, flat electricity rates may be the norm, or electricity might even become entirely free as services become the primary source of utility revenue.

The key to this future is technological innovation that allows utilities to better understand a customer’s unique needs and priorities and then deliver personalized, well-timed solutions that make customers feel valued and appreciated as their utility helps them save and alleviates their greatest pain points.

I predict utilities that adopt new technologies focused on customer experience, aligned with key utility trends shaping the sector, and deliver continual service improvements and optimization will earn the most satisfied, most loyal customers.

To illustrate this, look at how fixed pricing today is applied for most residential customers. Unless you live in one of the states with deregulated utilities where most customers are free to choose a service provider in a competitive marketplace, as consumers in power markets increasingly reshape offerings, fixed-rate tariffs or time-of-use tariffs might be the only rate structures you have ever known, though new utility rate designs are being tested nationwide today. These tariffs are often market distortions, bearing little relation to the real-time price that the utility pays on the wholesale market.

It can be easy enough to compare the rate you pay as a consumer and the market rate that utilities pay. The California ISO has a public dashboard -- as do other grid operators -- that shows the real-time marginal cost of energy. On a recent Friday, for example, a buyer in San Francisco could go to the real-time market and procure electricity at a rate of around 9.5 cents per kilowatt-hour (kWh), yet a residential customer can pay the utility PG&E between 22 cents and 49 cents per kWh amid major changes to electric bills being debated, depending on usage.

The problem is that utility customers do not usually see this data or know how to interpret it in a way that helps add value to their service or drive down the cost.

This is a scenario ripe for innovation. Artificial intelligence (AI) technologies are beginning to be applied to give customers the transparency and control over the energy they desire, and a new type of utility is emerging using real-time pricing signals from wholesale markets to give households hassle-free energy savings. Evolve Energy in Texas is developing a utility service model, even as Texas utilities revisit smart home network strategies, that delivers electricity to consumers at real-time market prices and connects to smart thermostats and other connected devices in the home for simple monitoring and control -- all managed via an intuitive consumer app.

My company, Bidgely, partners with utilities and energy retailers all over the world to apply artificial intelligence and machine learning algorithms to customer data in order to bring transparency to their electricity bills, showing exactly where the customers’ money is going down to the appliance and offering personalized, actionable advice on how to save.

Another example is from energy management company Keewi. Its wireless outlet adaptors are revealing real-time energy usage information to Texas A&M dorm residents as well as providing students the ability to conserve energy through controlling items in their rooms from their smartphones.

These are but a few examples of innovations among many in play that answer the consumer demand for increased transparency and control over energy usage.

Electric service providers will be closely watching how consumers respond to AI-driven innovation, including providers in traditionally regulated markets that are exploring equitable regulation approaches now, to stay aligned with policy and customer expectations. While regulated utilities have no reason to fear that their customers might sign up with a competitor, they understand that the revenues from electricity sales are going down and the deployment of distributed energy resources is going up. Both trends were reflected in a March report from Bloomberg New Energy Finance (via ThinkProgress) that claimed unsubsidized storage projects co-located with solar or wind are starting to compete with coal and gas for dispatchable power. Change is coming to regulated markets, and some of that change can be attributed to customer dissatisfaction with utility service.

Like so many industries before, the utility-customer relationship is on track to become less about measuring unit sales and more about driving revenue through services and delivering the best customer value. Loyal customers are most likely to listen and follow through on the utility’s advice and to trust the utility for a wide range of energy-related products and services. Utilities that make customer experience the highest priority today will emerge tomorrow as the leaders of a new energy service era.

 

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Manitoba Hydro's burgeoning debt surpasses $19 billion

Manitoba Hydro Debt Load surges past $19.2B as the Crown corporation faces shrinking net income, restructuring costs, and PUB rate decisions, driven by Bipole III, Keeyask construction, aging infrastructure, and rising interest rate risks.

 

Key Points

Manitoba Hydro Debt Load refers to the utility's escalating borrowings exceeding $19B, pressuring rates and finances.

✅ Debt rose to $19.2B; projected near $25B within five years.

✅ Major drivers: Bipole III, Keeyask, aging assets, restructuring.

✅ Rate hikes sought; PUB approved 3.6% vs 7.9% request.

 

Manitoba Hydro's debt load now exceeds $19 billion as the provincial Crown corporation grapples with a shrinking net income amid ongoing efforts to slay costs.

The utility's annual report, to be released publicly on Tuesday, also shows its total consolidated net income slumped from $71 million in 2016-2017 to $37 million in the last fiscal year, mirroring a Hydro One profit drop as electricity revenue fell.

It said efforts to restructure the utility and reduce costs are partly to blame for the $34 million drop in year-over-year income.

These earnings come nowhere close, however, to alleviating Hydro's long-term debt problem, a dynamic also seen in a BC Hydro deferred costs report about customer exposure. The figure is pegged at $19.2 billion this fiscal year, up from $16.1 billion the previous year and $14.2 billion in 2016.

The utility projects its debt will grow to about $25 billion in the next five years. Its largest expenses include finishing the Bipole III line, working on the Keeyask Generating System that is halfway done and rebuilding aging wood poles and substations, the report said.

"This level of debt increases the potential financial exposure from risks facing the corporation and is a concern for both

the corporation and our customers who may be exposed to higher rate increases in the event of rising interest rates, a prolonged drought or a major system failure," outgoing president and CEO Kelvin Shepherd wrote.

The income drop is primarily a result of the $50 million spent in the form of restructuring charges associated with the utility's efforts to streamline the organization and drive down costs, amid NDP criticism of Hydro changes related to government policy.

Those efforts included the implementation of buyouts for employees through what the utility dubbed its "voluntary departure program."

Among the changes, Manitoba Hydro reduced its workforce by 800 employees, which is expected to save the utility over $90 million per year. It also reduced its management positions by 26 per cent, a Monday news release said, while Hydro One leadership upheaval in Ontario drove its shares down during comparable governance turmoil.

To improve its financial situation, Hydro has applied for rate increases, even as the Consumers Coalition pushes to have the proposal rejected. The Public Utilities Board offered a 3.6 per cent average rate hike, instead of the 7.9 per cent jump the utility asked for.

In May, when the PUB rendered its decision, it made several recommendations as an alternative to raising rates, including receiving a share of carbon tax revenue and asking the government to help pay for Bipole III.

Hydro is projecting a net income of $70 million for 2018-2019, which includes the impact of the recent rate increase. That total reflects an approximately 20 per cent reduction in net income from 2017-18 after restructuring costs are calculated.

 

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UK Lockdown knocks daily electricity demand by 10 per cent

Britain Electricity Demand During Lockdown is around 10 percent lower, as industrial consumers scale back. National Grid reports later morning peaks and continues balancing system frequency and voltage to maintain grid stability.

 

Key Points

Measured drop in UK power use, later morning peaks, and grid actions to keep frequency and voltage within safe limits.

✅ Daily demand about 10 percent lower since lockdown.

✅ Morning peak down nearly 18 percent and occurs later.

✅ National Grid balances frequency and voltage using flexible resources.

 

Daily electricity demand in Britain is around 10% lower than before the country went into lockdown last week due to the coronavirus outbreak, data from grid operator National Grid showed on Tuesday.

The fall is largely due to big industrial consumers using less power across sectors, the operator said.

Last week, Prime Minister Boris Johnson ordered Britons to stay at home to halt the spread of the virus, imposing curbs on everyday life without precedent in peacetime.

Morning peak demand has fallen by nearly 18% compared to before the lockdown was introduced and the normal morning peak is later than usual because the times people are getting up are later and more spread out with fewer travelling to work and school, a pattern also seen in Ottawa during closures, National Grid said.

Even though less power is needed overall, the operator still has to manage lower demand for electricity, as well as peaks, amid occasional short supply warnings from National Grid, and keep the frequency and voltage of the system at safe levels.

Last August, a blackout cut power to one million customers and caused transport chaos as almost simultaneous loss of output from two generators caused by a lightning strike caused the frequency of the system to drop below normal levels, highlighting concerns after the emergency energy plan stalled.

National Grid said it can use a number of tools to manage the frequency, such as working with flexible generators to reduce output or draw on storage providers to increase demand, and market conditions mean peak power prices have spiked at times.

 

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British Columbia Halts Further Expansion of Self-Driving Vehicles

BC Autonomous Vehicle Ban freezes new driverless testing and deployment as BC develops a regulatory framework, prioritizing safety, liability clarity, and road sharing with pedestrians and cyclists while existing pilot projects continue.

 

Key Points

A moratorium pausing new driverless testing until a safety-first regulatory framework and clear liability rules exist.

✅ Freezes new AV testing and deployment provincewide

✅ Current pilot shuttles continue under existing approvals

✅ Focus on safety, liability, and road-user integration

 

British Columbia has halted the expansion of fully autonomous vehicles on its roads. The province has announced it will not approve any new applications for testing or deployment of vehicles that operate without a human driver until it develops a new regulatory framework, even as it expands EV charging across the province.


Safety Concerns and Public Questions

The decision follows concerns about the safety of self-driving vehicles and questions about who would be liable in the event of an accident. The BC government emphasizes the need for robust regulations to ensure that self-driving cars and trucks can safely share the road with traditional vehicles, pedestrians, and cyclists, and to plan for infrastructure and power supply challenges associated with electrified fleets.

"We want to make sure that British Columbians are safe on our roads, and that means putting the proper safety guidelines in place," said Rob Fleming, Minister of Transportation and Infrastructure. "As technology evolves, we're committed to developing a comprehensive framework to address the issues surrounding self-driving technology."


What Does the Ban Mean?

The ban does not affect current pilot projects involving self-driving vehicles that already operate in BC, such as limited shuttle services and segments of the province's Electric Highway that support charging and operations.


Industry Reaction

The response from industry players working on autonomous vehicle technology has been mixed, amid warnings of a potential EV demand bottleneck as adoption ramps up. While some acknowledge the need for clear regulations, others express concern that the ban could stifle innovation in the province.

"We understand the government's desire to ensure safety, but a blanket ban risks putting British Columbia behind in the development of this important technology," says a spokesperson for a self-driving vehicle start-up.


Debate Over Self-Driving Technology

The BC ban highlights a larger debate about the future of autonomous vehicles. While proponents point to potential benefits such as improved safety, reduced traffic congestion, and increased accessibility, and national policies like Canada's EV goals aim to accelerate adoption, critics raise concerns about liability, potential job losses in the transportation sector, and the ability of self-driving technology to handle complex driving situations.


BC Not Alone

British Columbia is not the only jurisdiction grappling with the regulation of self-driving vehicles. Several other provinces and states in both Canada and the U.S. are also working to develop clear legal and regulatory frameworks for this rapidly evolving technology, even as studies suggest B.C. may need to double its power output to fully electrify road transport.


The Road Ahead

The path forward for fully autonomous vehicles in BC depends on the government's ability to create a regulatory framework that balances safety considerations with fostering innovation, and align with clean-fuel investments like the province's hydrogen project to support zero-emission mobility.  When and how that framework will materialize remains unclear, leaving the future of self-driving cars in the province temporarily uncertain.

 

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Report: Solar ITC Extension Would Be ‘Devastating’ for US Wind Market

Solar ITC Impact on U.S. Wind frames how a 30% solar investment tax credit could undercut wind PTC economics, shift corporate procurement, and, without transmission and storage, slow onshore builds despite offshore wind momentum.

 

Key Points

It is how a solar ITC extension may curb U.S. wind growth absent PTC parity, transmission, storage, and offshore backing.

✅ ITC at 30% risks shifting corporate procurement to solar.

✅ Post-PTC wind faces grid, transmission, and curtailment headwinds.

✅ Offshore wind, storage pairing, TOU demand could offset.

 

The booming U.S. wind industry, amid a wind power surge, faces an uncertain future in the 2020s. Few factors are more important than the fate of the solar ITC.

An extension of the solar investment tax credit (ITC) at its 30 percent value would be “devastating” to the future U.S. wind market, according to a new Wood Mackenzie report.

The U.S. is on track to add a record 14.6 gigawatts of new wind capacity in 2020, despite Covid-19 impacts, and nearly 39 gigawatts during a three-year installation boom from 2019 to 2021, according to Wood Mackenzie’s 2019 North America Wind Power Outlook.

But the market’s trajectory begins to look highly uncertain from the early 2020s onward, and solar is one of the main reasons why.

Since the dawn of the modern American renewables market, the wind and solar sectors have largely been allies on the national stage, benefiting from many of the same favorable government plans and sharing big-picture goals. Until recently, wind and solar companies rarely found themselves in direct competition.

But the picture is changing as solar catches up to wind on cost and the grid penetration of renewables surges. What was once a vague alliance between the two fastest growing renewables technologies could morph into a serious rivalry.

While many project developers are now active in both sectors, including NextEra Energy Resources, Invenergy and EDF, the country’s thriving base of wind manufacturers could face tougher days ahead.

 

The ITC's inherent advantage

At this point, wind remains solar’s bigger sibling in many ways.

The U.S. has nearly 100 gigawatts of installed wind capacity today, compared to around 67 gigawatts of solar. With their substantially higher capacity factors, wind farms generated four times more power for the U.S. grid last year than utility-scale solar plants, for a combined wind-solar share of 8.2 percent, according to government figures, even as renewables are projected to reach one-fourth of U.S. electricity generation. (Distributed PV systems further add to solar’s contribution.)

But it's long been clear that wind would lose its edge at some point. The annual solar market now regularly tops wind. The cost of solar energy is falling more rapidly, and appears to have more runway for further reduction. Solar’s inherent generation pattern is more valuable in many markets, delivering power during peak-demand hours, while the wind often blows strongest at night.

 

And then there’s the matter of the solar ITC.

In 2015, both wind and solar secured historic multi-year extensions to their main federal subsidies. The extensions gave both industries the longest period of policy clarity they’ve ever enjoyed, setting in motion a tidal wave of installations set to crest over the next few years.

Even back in 2015, however, it was clear that solar got the better deal in Washington, D.C.

While the wind production tax credit (PTC) began phasing down for new projects almost immediately, solar developers were given until the end of 2019 to qualify projects for the full ITC.

And critically, while the wind PTC drops to nothing after its sunset, commercially owned solar projects will remain eligible for a 10 percent ITC forever, based on the existing legislation. Over time, that amounts to a huge advantage for solar.

In another twist, the solar industry is now openly fighting for an extension of the 30 percent ITC, while the wind industry seemingly remains cooler on the prospect of pushing for a similar prolongation — having said the current PTC extension would be the last.

 

Plenty of tailwinds, too

Wood Mackenzie's report catalogues multiple factors that could work for or against the wind market in the "uncharted" post-PTC years, many of them, including the Covid-19 crisis, beyond the industry’s direct control.

If things go well, annual installations could bounce back to near-record levels by 2027 after a mid-decade contraction, the report says. But if they go badly, installations could remain depressed at 4 gigawatts or below from 2022 through most of the coming decade, and that includes an anticipated uplift from the offshore market.

An extension of the solar ITC without additional wind support would “severely compound” the wind market’s struggle to rebound in the 2020s, the report says. The already-evident shift in corporate renewables procurement from wind to solar could intensify dramatically.

The other big challenge for wind in the 2020s is the lack of progress on transmission infrastructure that would connect potentially massive low-cost wind farms in interior states with bigger population centers. A hoped-for national infrastructure package that might address the issue has not materialized.

Even so, many in the wind business remain cautiously optimistic about the post-PTC years, with a wind jobs forecast bolstering sentiment, and developers continue to build out longer-term project pipelines.

Turbine technology continues to improve. And an extension of the solar ITC is far from assured.

Other factors that could work in wind’s favor in the years ahead include:

The nascent offshore sector, which despite lingering regulatory uncertainty at the federal level looks set to blossom into a multi-gigawatt annual market by the mid-2020s, in line with an offshore wind forecast that highlights substantial growth potential. Lobbying efforts for an offshore wind ITC extension are gearing up, offering a potential area for cooperation between wind and solar.

The potential linkage of policy support for energy storage to wind projects, building on the current linkage with solar.

Growing electric vehicle sales and a shift toward time-of-use retail electricity billing, which could boost power demand during off-peak hours when wind generation is strong.

The land-use advantages wind farms have over solar in some agricultural regions.

 

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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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