Texas residents and businesses who sued utility companies for cutting power during the 2021 winter storm didn’t adequately prove the companies were intentionally negligent in causing widespread blackouts, the Texas Supreme Court ruled Friday.
The justices ruled plaintiffs didn’t put forth enough evidence to show Oncor, CenterPoint Energy and other utilities were purposely negligent or caused a nuisance when they were ordered to cut power to homes across the state and allegedly failed to adequately mitigate the harm.
“The plaintiffs have nowhere alleged facts supporting an inference that the Utilities were not doing the best they could in those time-sensitive circumstances,” Justice Debra Lehrmann wrote for the court.
Justices ruled, however, that the plaintiffs should get the chance to replead their gross negligence claims at the trial court level now that the high court has clarified what does and doesn't classify as "conscious indifference" in cases like this. The decision provides a relatively narrow pathway for the plaintiffs to try and prove the utility companies’ liability.
KERA News has reached out to Oncor, CenterPoint Energy, AEP Texas and their attorneys for comment and will update with any response.
When the statewide freeze put record-high demand on the state’s electrical grid, the Electric Reliability Council of Texas — which maintains the grid — ordered the utilities to “load shed,” or cut power to homes. According to the state’s count, 246 people died, mostly from hypothermia.
Thousands of residents and small businesses then sued, alleging the power cuts worsened the situation and the companies could have reasonably prepared for the freeze. The plaintiffs said the power companies’ actions caused an intentional nuisance — in other words, unreasonable discomfort or annoyance that interferes with the use of land — but the court found that’s not a good enough argument.
“Of course, that is not to say that something cannot be an intentional nuisance just because natural forces play a role,” Lehrmann wrote. “But for intentional-nuisance liability to attach, the defendant must in some way have been a source of the nuisance.”
Plaintiffs also claimed the companies promised rolling blackouts, which are supposed to be temporary. Dallas attorney Ann Saucer, who represents some of the plaintiffs, said that’s not what happened.
“What these companies did was to cut the power off to people for days, causing them to freeze to death,” she told KERA. “They did not execute the load shed orders with any degree of responsibility.”
But justices ruled there’s not enough proof yet that the utilities acted with conscious indifference, especially as the companies have to comply with ERCOT’s orders under state law.
While not impossible, conscious indifference is a difficult legal standard to meet, said Chad Ruback, a Dallas appellate attorney uninvolved with this case.
“I don’t see a lot of plaintiffs’ lawyers being eager to take on this sort of case in the future in light of this morning’s (Texas) Supreme Court ruling that gross negligence, that conscious indifference would be required to be shown,” Ruback said.
The lawsuits were compiled into one multidistrict litigation case in Harris County because of the sheer volume of plaintiffs, and that’s where the suit will remain as proceedings return to the trial court level. There’s no clear timeline for when that will happen.
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