Scores of Texas electric generators and distributors — CenterPoint, Luminant and NRG, to name a few — asked a Houston appeals court Friday to dismiss more than 230 lawsuits brought against them by more than 1,500 plaintiffs stemming from Winter Storm Uri two years ago because the cases are without legal merit and “upend the state’s electricity markets.”
In two separate mandamus petitions filed with the Fourteenth Court of Appeals in Houston, lawyers for the power generators and electricity transmission and distribution utilities argue that Harris County District Judge Sylvia Matthews “clearly abused [her] discretion in allowing the cases to proceed.”
In the two years since Winter Storm Uri blanketed Texas with near zero-degree temperatures, snow and freezing rain, which caused massive power outages across the state, more than 230 lawsuits have been filed in more than 20 different Texas counties alleging the energy companies’ failure to provide electricity and failure to warn their customers led to personal injury, wrongful death and property damage.
The Texas Supreme Court consolidated nearly all of those cases into one multidistrict litigation handled by Judge Matthews, who has selected five bellwether or test cases to move forward first.
On Friday, lawyers for Gibson, Dunn & Crutcher and Baker Botts who represent power generators wrote that Judge Matthews “committed clear error” when she ruled Jan. 26 that the allegations of negligence, gross negligence and nuisance could move forward to trial against the defendants.
“This litigation is as unprecedented as the 2021 winter storm that spawned it,” the power generators’ petition states. “The stakes are exceedingly high. If permitted to proceed, this litigation will upend the state’s electricity markets, stretch Texas negligence and nuisance law beyond recognition, and make the state a national outlier.”
Lawyers for the power generators, such as Exelon Generation Company, ExxonMobil and Vistra Corporation, said if Judge Matthews’ decision is allowed to stand, “it will allow for ‘ruinous’ liability for entities that don’t contract with or deliver electricity to consumers.”
“Even though plaintiffs’ novel, expansive theories of liability are entirely foreclosed as a matter of Texas law — and have been rejected by courts across the country — the MDL court allowed plaintiffs’ negligence and nuisance claims against the wholesale power generators to proceed to discovery nonetheless,” the power generators’ petition states.
Lawyers for Vinson & Elkins, who represent power distributors such as Oncor, argue that their clients’ actions were “not a proximate cause of plaintiffs’ injuries” and that the plaintiffs’ lawsuits are “without a single allegation connecting any individual plaintiff’s harm to any individual defendant’s actions.”
“Those injuries were caused by severely cold weather and the consequences thereof. They were not proximately caused by the absence of electric service,” the power transmitters and distributors state in their 75-page petition. “The TDU’s actions are not the legal cause of those injuries.”
“The absence of electricity is not, in and of itself, injurious in any way — at most, it merely creates a condition that makes harm possible from other causes, such as the naturally-occurring effects of cold weather or poor health, or accidents that result in injuries by fire, carbon monoxide poisoning, etc.,” the V&E petition argues.
The power distributors also state that the plaintiffs’ nuisance claims must be dismissed “because their allegations lack the most fundamental element of a nuisance claim, an invasion that interferes with property.”
“The deprivation of electricity is not a physical interference at all, but rather the absence of a household service,” the petition argues. “And to the extent plaintiffs’ claims sound in intentional nuisance, those claims fail for the additional reason that the petitions do not plausibly show the TDUs had a specific intent to inflict injury in carrying out ERCOT’s load shed orders.”
Lawyers for the 1,500 plaintiffs are expected to file their responses later this month.
The V&E lawyers representing Oncor and the power transmission and distribution utilities include Houston partners Patrick Mizell, Stacey Vu, Quentin Smith and John Wander. Shipley, Snell & Montgomery lawyers Amy Snell, Joel Montgomery, Brooksie Bonvillain Boutet and Christy M. Ho are advising CenterPoint.
Leading the litigation for the power generators Vista and Luminant are Gibson Dunn attorneys Allyson Ho, Michael Raiff, Elizabeth Kiernan and Stephen Hammer. Baker Botts lawyers Macey Reasoner Stokes, John Anaipakos, George Fibbe and J. Mark Little represent NRG and Calpine.
The litigation is styled In re Luminant.