Texas is a massive hub for energy systems. While current industry efforts target a rapidly growing and changing economy, it continues to rely on infrastructure that is years, and in some cases decades, old. New transmission lines, pipelines, and storage facilities are being added at a remarkable pace. Meanwhile, the existing network must continue operating, often under increasing demand and changing conditions.
When aging infrastructure fails, the consequences can be severe, leading to personal injuries and even death. Gas lines that have not been updated can trigger explosions. Power lines that have not been maintained could cause electrocution. Leaks at storage facilities can lead to mass contamination.
For the legal industry, this creates a question: When aging infrastructure fails, who bears the legal responsibility? The answer to this question may depend on more than ownership. When infrastructure fails resulting in injuries, property damage, or an outage or release, relevant factors include:
- Maintenance obligations
- Inspection practices
- Contractual responsibilities
- Regulatory requirements
- Operational decisions
- Emergency planning
- Foreseeability of a failure
These factors are becoming more relevant as Texas accelerates infrastructure development.
ERCOT’s 2026 annual report describes “unprecedented load growth,” with approximately 62,000 megawatts of new generation synchronized to the grid between 2021 and 2025. The report also suggests a need to expand the state’s transmission network. For companies that own, operate, or depend upon critical energy assets, the legal risks associated with aging infrastructure deserve attention in an effort to reduce the risk of failures, rather than responding after the fact.
The Aging Infrastructure Problem
Aging infrastructure does not always mean unsafe infrastructure. The problem arises when the condition, operating environment and intended use of an asset begin to diverge. Pipelines, transmission lines, storage facilities and other assets often remain in service for many years without incident. The issue arises when environmental or operating conditions change and companies fail to respond to those changes in an appropriate, timely, and thorough manner.
- A pipeline may have been designed for operating conditions that are no longer relevant.
- A gas line may have been made from material that is no longer appropriate for use at its age.
- Electrical equipment may be subjected to higher loads than anticipated.
- A processing facility may depend on components that are outdated and difficult to replace.
- A storage system may require more maintenance as it approaches the end of its expected service life.
Co-existing with these concerns are the fact that Texas is consistently adding demand and infrastructure around these existing assets. That is the root of the potentially difficult legal and operational balancing act: How does an operator determine when continued maintenance is sufficient and when an asset needs to be upgraded, replaced or retired? That question can become particularly important after a failure.
Where the Risks Emerge
The potential risk is not limited to one segment of the energy industry. The risks related to aging infrastructure include:
Pipelines
Aging pipelines can present concerns related to:
- Integrity-management
- Corrosion
- Inspection
- Excavation
- Maintenance concerns
Pipeline operators are subject to federal and state requirements. The Pipeline and Hazardous Materials Safety Administration (PHMSA) collects extensive data about mileage, installation dates, materials, incidents and integrity-related conditions. The Railroad Commission of Texas requires reporting of incidents involving intrastate gas pipeline systems, including incidents that result in specified injuries, fatalities or property damage.
When pipeline operators fail to adequately address the known dangers in their systems, they place members of the public at risk. Serious injuries often occur when operators fail to respond to reports of leaks, fail to update their pipelines with newer materials, and fail to properly maintain their systems. Considering the nature of the hazardous materials that may be flowing through the distribution system, even minor failures can lead to catastrophic results.
Electrical Infrastructure
Electrical transmission and distribution systems have unique challenges. Aging equipment is often forced to operate with rapidly increasing demand, new generation resources and new patterns of production and consumption. ERCOT identified the need for major transmission expansion in their 2025 State of the Grid report, including new 765-kilovolt projects. The report also addressed areas where load growth is likely to occur faster than transmission upgrades can be completed.
Failures to properly inspect, maintain, and monitor power lines can lead to wildfires, electrical burn injuries, and other dangers for both the public and for workers who are tasked with maintaining or inspecting these systems.
Processing and Storage Facilities
Refineries, chemical plants, storage systems and other industrial operations contain equipment that must remain reliable regardless of how long it has been in operation. Routine maintenance is critical with expansion, changing production requirements and increasingly complex interconnected systems.
When it comes to failing energy infrastructure, the legal question is not simply whether the asset was old. The legal question is whether the relevant parties acted reasonably given what they knew, or should have known, about the condition and risks associated with the asset.
Maintenance vs. Replacement: The Difficult Question
One of the most consequential decisions regarding infrastructure is also one of the hardest to define: When is repair enough?
Replacing assets like a major pipeline segment, transformer, storage component or processing system requires significant investment and planning. Continuing to operate an existing older asset may appear economically rational if it is serviceable. But the analysis changes when warning signs start to accumulate:
- Repeated repairs may indicate larger underlying problems.
- Inspection records may reveal deterioration of components.
- Employees may report recurring problems.
- An incident or near miss may expose vulnerability.
- Manufacturers may issue warnings or discontinue support for aging components.
These facts matter later if a failure occurs.
From a legal-risk perspective, the critical issue then becomes the decision-making process itself: What information was available?
- Who reviewed it?
- What alternatives were considered?
- What maintenance was performed?
- What did inspections show?
- Were known deficiencies corrected?
- Were operating conditions changing?
There is no universal rule that an aging energy asset must be replaced. Nor does replacing an asset eliminate every bit of risk. The more important consideration is often whether the owner or operator can demonstrate a reasoned and documented approach to managing known risks.
Texas Is Expanding Its Resilience Focus
The legal and operational environment is changing as Texas considers how to make energy infrastructure more resilient. In 2025, the Texas Legislature enacted Senate Bill 75, creating Chapter 44 of the Utilities Code and establishing the Texas Grid Security Commission. The law directs this commission to evaluate hazards to critical infrastructure associated with the ERCOT electric grid and develop recommendations concerning resilience standards. It also calls for a plan addressing a variety of threats, including severe weather, physical and cyber threats.
The significance of laws like this one extends beyond the electric grid. The broader lesson is that infrastructure resilience involves interconnected systems. A failure in any part of the interconnected system can create consequences in others. For companies operating in the energy sector, resilience is increasingly not only an engineering and operational concern, but also a governance and legal-risk issue.
The Legal Risk Is Often Influenced by the Decisions Made Before the Failure
As Texas continues to build new energy infrastructure while relying on existing systems, owners and operators should work toward infrastructure management being more than a capital-planning exercise. It should also be a risk-management function. Infrastructure has potential implications for safety, regulatory compliance, contracts, insurance and litigation.
For general counsel, the strongest position may be created before litigation becomes necessary:
- Understanding who is responsible for each asset;
- Documenting why maintenance and replacement decisions were made;
- Preserving evidence of known conditions; and
- Ensuring that operational and legal teams understand how changing infrastructure demands may alter the risk landscape.
Texas is building for the future. But the legal consequences of that future may depend, in part, on how carefully the infrastructure it already has is managed.
Kevin Haynes is a partner and trial lawyer at Kherkher Garcia, LLP with more than 25 years of experience. Kevin represents clients who have suffered serious injuries or lost loved ones in trucking crashes, oil and gas accidents, and industrial incidents. A native of Southeast Texas’s industrial Golden Triangle, Kevin witnessed firsthand the devastating impact catastrophic injuries can have on hardworking families. Those experiences, along with early encouragement from his family and teachers, inspired his commitment to pursuing justice for people who have been seriously harmed.
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