TEXAS VIEW: ERCOT shouldn’t be exempt from laws of open government

THE POINT: Apparently, ERCOT is a public entity, except when it’s not.

The Electric Reliability Council of Texas has been described as a corporation, a nonprofit, a grid operator and a traffic cop. Now, with the endorsement of Texas Attorney General Ken Paxton last Wednesday, ERCOT is being described as something other than a government entity that would have to meet disclosure requirements.

Following the winter storm, the agency has been flooded with open records requests for documents, text messages, e-mails and recorded phone calls that would shed more light on the inner workings of the state’s response. ERCOT doesn’t want to release them. Paxton ruled in ERCOT’s favor, reasoning that the agency is not bound by the rules of open government because it’s not a public entity.

And yet, just three months ago, when ERCOT was facing at least 35 lawsuits related to the winter storm, the grid operator, which is overseen by the Public Utility Commission, seemed pretty convinced that it was, indeed, a public agency and immune from litigation.

“ERCOT has and will continue to assert that it is entitled to sovereign immunity due to its organization and function as an arm of State government,” the organization wrote in a court filing, reported by the Texas Tribune.

In a separate letter, Jay Stewart, an attorney representing ERCOT, wrote: “ERCOT performs a public function. The system administration fee that funds ERCOT’s operations is collected pursuant to the State’s police power.”

And it’s not just ERCOT and Paxton saying this. In 2018, an appeals court in Dallas affirmed the agency’s immunity, and therefore its status as a public entity, after Panda Power sued the grid operator.

We understand that ERCOT occupies a unique position. It’s independent and nonprofit. It doesn’t levy taxes and its leaders are not elected. But it is funded by government-mandated fees and overseen by commissioners at a state agency who are appointed by the governor, and it faces no competition from other grid operators. When Texas deregulated the energy market almost 20 years ago, we envisioned a system that would be more responsive and accountable to consumers, not less. ERCOT’s special status shouldn’t make it exempt from transparency.

By the letter of the law, Paxton may be right here, though we would also add that he has the opportunity to publicly campaign for transparency even if his ruling needed to go the other way. But that might be too much to hope for.

Which brings us to the rest of the Austin cortège. Three weeks ago, Gov. Greg Abbott declared victory over the grid’s shortcomings, proclaiming, “Bottom line is that everything that needed to be done was done to fix the power grid in Texas.”

Apparently, transparency wasn’t on the to-do list.

So to be absolutely clear about what we’re hearing from Austin: ERCOT is a public entity, except when it’s not. Austin has done everything necessary, except this thing. And the grid is rock solid going into summer, unless it gets hot outside.

Dallas Morning News