By Ryan Sterling | Technology Editor

December 11, 2023

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            It is February, in Texas, and the lights are out. Texans are weathering an unanticipated cold front. As masses flock indoors, the demand for electricity in the form of light and heat spikes. Meanwhile, several electric generating plants are offline due to complications with the colder-than-expected weather. What year is it?

 

            While most remember the viral Texas blackouts caused by winter storm Uri in 2021, less are aware that Texas has experienced a pattern of severe cold-weather events disrupting its electric service dating back to 1983.^[1] Winter storm Uri, undoubtedly, was the biggest of those events: at its peak, the storm took 34,000 MW of electric generation capacity offline, leaving two-thirds of Texans literally powerless.^[2] After each of the three most severe cold-weather events in the last 50 years—1989, 2011, and 2021—regulatory bodies conducted investigations and made recommendations “aimed at improving winterization on the part of the [electric] generators.”^[3] The recommendations in the 1989 and 2011 reports went largely unheeded by Texan electric generators and regulators, and the 2021 recommendations may meet the same fate.

 

            Officials in Texas are facing increased calls for Texas to connect with the national grid.^[4] Texans are finalizing criticizing the State’s repeated failures. The 2011 power outages in Texas were a direct reflection that Texan electric generators lack adequate infrastructure to provide reliable power during cold-weather emergencies. After failing to address these infrastructure concerns in 2011, the Texas Legislature passed two bills in response to Uri: 2021 Senate Bills 2 and 3.^[5]

 

As a law pertaining primarily to state-agency governance, SB 2 did little to improve, or mandate improvements to, Texas’ electric generation infrastructure.^[6] Several sections of the bill amended the Texas Utilities Code to require several leadership positions in the Public Utility Commission of Texas to be Texas residents, providing little (if any) support to Texas’ grid infrastructure.^[7] While having a resident of the state in charge of regulating public utilities may provide a better leader, this requirement in no way guarantees better leadership or any meaningful action to protect Texas’ grid. Likely, the Texas Legislature put this provision in place to increase the likelihood of Texas remaining independent from federal regulation in the face of increasing calls for Texas to join the national grid.^[8] Overall, SB 2 does little to curb Texas’ power issues and instead provides for Texas continuing energy independence by mandating protectionist laws, which put all positions of power in Texas’ energy regulatory scheme in the hands of Texans.

 

While SB 2 involved small amendments to existing code with some new sections, the lengthier SB 3 established several new sections of code. The bill created two new committees for developing and enforcing reliability standards; established new emergency response alert systems; and raised the fines chargeable to noncompliant utilities. Ultimately, the bill is likely to enhance confusion around who is responsible for energy reliability in Texas. The federally delegated Texas Reliability Entity, the Public Utilities Commission of Texas (PUCT), the Texas Railroad Commission, and now both the Texas Energy Reliability Council and Texas Electricity Supply Chain Security and Mapping Committee all have some statutory duties around the development and enforcement of reliability standards for energy producers and transmission operators in the state of Texas.^[9]

 

Texas has a major energy infrastructure problem that the state has failed to address for decades. As climate change ramps up, the occurrence of severe weather events in Texas (and elsewhere) is highly likely to increase. The most recent cold-weather blackouts of 2021 were the most severe on record, resulting in a number of fatalities and a huge economic hit to the state. If Texas does not address the shortcomings of its electric generation infrastructure, it is doomed to continue suffering from worse and worse blackouts like those in February 2021.

 

            The current response, 2021 SB 2 and SB 3 signed into law in the wake of Uri, is not enough. The two bills together primarily increase reporting functions of the PUCT and other energy-related entities. By assigning many organizations the job of creating, proposing, and enforcing new and improved reliability standards for Texas’ infrastructure, the Texas Legislature is asking for confusion and dysfunction as competing federal and state agencies fight over reliability standards. More importantly, each of those entities will be left pointing the finger at the other in the wake of the next cold-weather blackouts.

 

            Now to get back to where we started: it is February, in Texas, and the lights are out. Texans are weathering an unanticipated cold front. As masses flock indoors, the demand for electricity in the form of light and heat spikes. Meanwhile, several electric generating plants are offline due to complications with the colder-than-expected weather. What year is it? Hopefully not 2023, 2024, or beyond.

 

 

^[1] Fed. Energy Reg. Comm’n and N. Am. Elec. Reliability Corp., Report on Outages and Curtailments During the Southwest Cold Weather Event of February 1–5, 2011: Causes and Recommendations 7 (2011) [hereinafter FERC/NERC 2011 Report].

^[2] Umair Irfan, Why the Texas Power Grid is Struggling to Cope with the Extreme Cold, Vox (Feb. 16, 2021), https://www.vox.com/2021/2/16/22284140/texas-blackout-outage-winter-storm-uri-ercot-power-grid-cold-snow-austin-houston-dallas.

^[3] FERC/NERC 2011 Report at 10; Fed. Energy Reg. Comm’n and N. Am. Elec. Reliability Corp., The February 2021 Cold Weather Outages in Texas and the South central United States 8 (2021) [hereinafter FERC/NERC 2021 Report].

^[4] See, e.g., Erin Douglas et al., Texas Leaders Failed to Heed Warnings the Left the State’s Power Grid Vulnerable to Winter Extremes, Experts Say, Tex. Trib. (Feb. 17, 2021), https://www.texastribune.org/2021/02/17/texas-power-grid-failures/ (stating that “Texas policy makers should consider more connections to the rest of the country.”); see, e.g., Catherine Morehouse, Congress, Texas Should ‘Rethink’ ERCOT’s ‘Go it Alone Approach’: FERC Chair Glick, Util. Dive (Feb. 19, 2021), https://www.utilitydive.com/news/congress-texas-should-rethink-ercots-go-it-alone-approach-ferc-chair/595335/ (quoting then-FERC Chairmain Richard Glick, who called Texas energy independence “just to keep FERC at bay . . . as the proverbial cutting off your nost to spite your face.”).

^[5] 2021 Tex. Gen. Laws 425 (SB 2); 2021 Tex. Gen. Laws 418 (SB 3).

^[6] Recall from both the 2011 and 2021 FERC/NERC reports that poor infrastructure—not poor oversight—was the main culprit of the outages. While oversight and infrastructure development are related, the PUCT had the ability to mandate infrastructure improvements prior to SB 2’s passage. See FERC/NERC 2011 Report; see FERC/NERC 2021 Report.

^[7] See 2021 Tex. Gen. Laws 425. 

^[8] Supra note 4.

^[9] See 16 U.S.C. § 824 (delegating authority over reliability standards to NERC, and further commanding regulators to allow NERC to delegate further—which it has done in many cases, including to the Texas Reliability Entity, one of many governing bodies with authority over reliability standards in Texas.); see also Tex. Util. Code § 39.151 (delegating the Public Utilities Commission of Texas to “adopt and enforce rules relating to reliability of the regional electrical network.”); see also Tex. Util. Code § 121.2015 (assigning the Texas Railroad Commission the responsibility of adopting rules for gas pipeline service reliability); see also 2021 Tex. Gen. Laws. 418 (creating the Texas Energy Reliability Council and the Texas Electricity Supply Chain Security and Mapping Committee; both entities have reliability related responsibilities outlined in the code).