More Polar Vortex 2021 Fallout: 2nd PUCT Commr. Resigns, Lt. Gov. Calls on PUCT or ERCOT to "Fix" $16B "Error"

Mayer Brown - Energy Forward
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Mayer Brown - Energy Forward

On March 8, 2021, Commissioner Shelly Botkin resigned immediately from the Public Utility Commission of Texas (PUCT), leaving the PUCT with only one sitting commissioner. Somewhat unusually, under Texas’ Public Utility Regulatory Act (PURA), the vacancy created by this resignation and the result—two out of three commission positions are vacant—does not prevent the remaining commissioner from exercising the PUCT’s powers. PURA provides:

Sec. 12.056. EFFECT OF VACANCY.

A vacancy or disqualification does not prevent the remaining commissioner or commissioners from exercising the powers of the commission.

Also on March 8, 2021, Texas Lieutenant Governor Dan Patrick called on the PUCT and the Electric Reliability Council of Texas (ERCOT) to correct the emergency pricing error that continued after the power shortage had ended and the major threat to the Texas grid had passed. Patrick noted that the PUCT had declined to exercise its power to direct ERCOT to correct the billing and/or the pricing error and that, although ERCOT has a procedure to correct pricing errors, it had failed to use it so far. 

In the meantime, at press time, no replacement commissioner nomination had been publicly announced, and it is uncertain whether the appointment of one or two replacements would change the PUCT’s decision to not require pricing, billing or other post-vortex corrective action. It is also uncertain whether the single remaining PUCT commissioner will contemplate modifying the PUCT’s prior decisions in light of mounting political and financial pressures. 

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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