After an 11-year-old boy and a 95-year-old man froze to death during Texas’ 2021 winter storm, their families moved to hold the state’s main grid operator accountable. The families are suing the Electric Reliability Council of Texas (ERCOT) for failing to service their homes during the sustained power outages that resulted in the deaths of their loved ones.The families’ suits are being followed by many others from Texans across the state who are suing ERCOT over the prolonged power outages that resulted in several deaths. Dozens died as medical care was disrupted, property was damaged, and myriad other problems occurred.
The family of 11-year-old Cristian Pineda seeks $100 million in damages. The family of 95-year-old Doyle A. Austin seeks unspecified damages. Both families said ERCOT’s lack of planning triggered the rolling blackouts caused by a winter storm last week. Mr. Austin’s family argued that the nonprofit overseeing the grid was grossly negligent. They noted that previous winter storms sparked state and federal reviews of grid deficiencies; however, necessary upgrades were never made or were not maintained.
“Despite having knowledge of the dire weather forecast for at least a week in advance, and the knowledge that the system was not prepared for more than a decade, ERCOT and Entergy failed to take any preemptory action that could have averted the crisis and were wholly unprepared to deal with the crisis at hand,” the Pineda lawsuit reads.
Eleven-year-old Cristian died in a trailer park in Conroe. The lawsuit alleges that ERCOT cut power to those who needed it most. “Hence, there were images of empty downtown Houston office buildings with power, but Pineda’s mobile home park was left without power,” the lawsuit reads.
When he died, Cristian was sharing a bed with his three-year-old brother under a pile of blankets, trying to keep warm, as temperatures outside fell as low as 10 degrees. Though ERCOT had warned Texans to conserve power during the storm, the family said those efforts were inadequate and failed to fully inform them of the ongoing blackout issues.
“Cristian died because grid wasn’t a priority, and the energy provider made decisions based on profits,” said the family.
The lawsuit further accused ERCOT of misleading its customers because the company assured them that the rolling blackouts would be temporary.
“The blackouts instead lasted days,” alleged the lawsuit. “The failure to adequately inform Plaintiffs of the length of the blackouts prevented them from properly preparing for the lack of power, or leaving the area. Accurate information might have saved Cristian Pineda’s young life.”
Instead of informing its customers that the blackouts would be extended, ERCOT sent out messages on its social media accounts recommending that customers save power by not doing laundry and unplugging their appliances.
A lawyer who represents Doyle A. Austin’s family told Law360 on Feb. 22 that ERCOT and power providers across the state should have been prepared for the low temperatures. Mr. Austin, a former player in baseball’s Negro Leagues, was part of a close community that looked up to him, said his lawyer. Mr. Austin would have turned 96 next week. His attorney said the community went from celebrating Mr. Austin’s birthday to planning his funeral.
The lawsuits follow after ERCOT conducted rolling blackouts last week when Winter Storm Uri hit Texas. It first rolled in on Valentine’s Day. Millions were soon without power as temperatures dipped below freezing. As parts of Texas suffered record-breaking low temperatures, electricity demand soared.
Electricity Demand Event not unique
The plaintiffs in at least two of the suits note that the electricity demand last week, which peaked at roughly 69,000 megawatts, did not exceed what the state’s grid had handled before. That history included summertime, when energy use can spike to 125,000 megawatts across Texas. The plaintiffs also noted the requirement was not much higher than a 2018 winter storm when demand reached 65,000 megawatts.
ERCOT’s Prior Knowledge of Problems
The plaintiffs also said severe winter weather in 1989 and 2011 showed ERCOT should have been well aware of the potential for problems. The company had long been told by regulators to winterize its electricity grid. After the 1989 storm, the Texas Public Utilities Commission said anti-freeze procedures were necessary, and frequent inspections and drills would help avert power loss in cold weather.
Following cold weather in 2011, a Federal Energy Regulatory Commission investigation determined that many of the commission’s recommendations were either not implemented or not maintained. FERC said the 2011 equipment failures were caused by the same failures that had caused blackouts in 1989.
Sovereign Immunity?
ERCOT will likely claim it has sovereign immunity from negligence in such injury suits. One Texas attorney who filed a suit seeking unspecified damages said other ways may exist to hold the corporation accountable if the corporation is treated like a government entity, such as takings claims.
Suits filed last week include takings claims as well as negligence claims.
Plaintiffs’ attorneys anticipate that several different types of personal injury suits will be filed over the deadly blackouts, such as people living at home dependent on electrically-powered medical equipment – perhaps those needing dialysis or oxygen systems. Many more wrongful death claims are anticipated.
ERCOT Responds
“We are deeply saddened by the loss of life in our community,” Entergy said in its statement. “We are unable to comment due to pending litigation.”
ERCOT told Law360 it was confident in its decision to implement blackouts but said it was reviewing the lawsuits and could not comment further on pending cases.
“This is a tragedy,” said an ERCOT spokesperson. “Our thoughts are with all Texans who have and are suffering due to this past week.”
It is a tragedy to be sure. The question now is, who, or what, is responsible for that tragedy?
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