Retail electric provider Just Energy has asked the Austin Court of Appeals to allow it to join a lawsuit brought by a half-dozen other Texas power suppliers challenging the legality of Texas Public Utility Commission orders increasing the price of electricity during Winter Storm Uri in 2021 by 650 percent.
Last month, the U.S. Court of Appeals for the Fifth Circuit rejected Just Energy’s efforts to claw-back $274 million that the Canadian-based energy provider claims it was overcharged by the Electric Reliability Council of Texas for power purchased during the four days of unprecedented freezing weather in February 2021.
The Fifth Circuit ruled that Just Energy must seek any claims against ERCOT in state court.
On Tuesday, Just Energy filed an unopposed motion to intervene in Luminant Energy Company v. Public Utility Commission of Texas, a case brought by power sellers that include Dallas-based Luminant and Houston-based Pattern Energy, Exelon Generation and Constellation NewEnergy before the Texas Third Court of Appeals in Austin.
Just Energy filed for bankruptcy and restructuring in Canada in the weeks after Winter Storm Uri when ERCOT hit the retail electric provider with $335 million in invoices – bills that are required to be paid immediately or ERCOT will suspend a company’s participation in the Texas power market.
Lawyers for Just Energy initially filed a Chapter 15 petition in the Southern District of Texas seeking to reclaim the $274 million the company claims it was overcharged. The U.S. bankruptcy judge agreed to allow Just Energy to proceed with its claims, but the Fifth Circuit stepped in and said the judge had overstepped his authority.
John Bash, a partner at Quinn Emmanuel in Austin and lawyer for Just Energy, argued in this week’s petition at the Austin Court of Appeals that the PUC’s actions ordering ERCOT to increase the price of wholesale electricity at $9,000 per mega-watt hours “exceeded its statutory authority” under Texas law.
“The PUCT did not tie the pricing orders to a fact-based analysis of the market conditions during Winter Storm Uri or otherwise explain the reasoning behind its determination that energy prices should be set at the then legal maximum,” Just Energy argues in its 14-page motion. “Not only did the PUCT not offer a reasoned justification for the pricing orders, it adopted them without notice, publication, and public comment after mere minutes of cursory discussions.”
The legal arguments mirror those made last April by lawyers for Luminant, who asked a three-judge panel to declare that the PUC illegally adopted two pricing rules during the historic storm that allowed ERCOT to increase the emergency price of electricity 650 percent for five days.
The PUC is represented by the Texas Attorney General’s office.
The case is No. 03-21-00098-CV.