The Public Utility Commission of Texas (Commission) plays a vital role in regulating the Electric Reliability Council of Texas (ERCOT) wholesale market, and retail energy markets throughout all of Texas. This article identifies key projects and initiatives at the Commission that are ongoing in 2022 and have a major impact on the electric power grid and energy markets in Texas. The Commission continues to move rapidly as it implements the 2021 post-Uri legislative mandates, and we expect it to continue changing regulations affecting a wide swath of the market and the ERCOT system to bolster reliability.  Everyone engaged in the ERCOT market should continue to pay close attention to these reforms.  Husch Blackwell is following these key matters at the Commission and represents or advises clients on many of them. We are happy to answer any questions related to any item outlined below.  

Continue Reading Update on 2022 Activity at the Texas Public Utility Commission

Regulated energy sector entities routinely submit confidential and proprietary business information to Texas state agencies, including the Railroad Commission (Texas’s incongruously named oil and gas regulator), the General Land Office, the Public Utility Commission, and the Electric Reliability Council of Texas  (“ERCOT”), often assuming it is “for regulators’ eyes only.” But Texas agencies have limited power to prevent the disclosure of information sought pursuant to the Public Information Act (“PIA”).

Continue Reading Preventing Texas Regulators from Disclosing Energy Companies’ Proprietary Information

Confirming landowners’ signatory authority is crucial when preparing renewable energy leases or conducting due diligence in a renewable energy financing transaction. It is not enough to rely on a landowner’s word that he or she owns a proposed project area and has the right to encumber it with a renewable energy lease. While some leases include language certifying that the landowner executing the agreement has signatory authority, failing to properly confirm that authority can result in title issues, potentially requiring lease amendments or resulting in the denial of title insurance.

Continue Reading Sign Here: Signatory Authority in Texas Renewable Energy Land Leases

In Texas, title insurance forms are promulgated by the Texas Department of Insurance (the “TDI”), with policy types, premium amounts, and the issuance of endorsements being regulated by standardized procedural and rate rules. Thus, title deliverables required for debt and equity financing transactions tend to be generally uniform in Texas renewable energy transactions.

Continue Reading Common Title and Survey Deliverables in Texas Energy Transactions

On June 8, 2022, the Public Utility Commission of Texas (“Commission”) filed a memo from its Infrastructure Division requesting that electric utilities, power generation companies, municipally owned utilities, and electric cooperatives (“Entities”) operating outside of the Electric Reliability Council of Texas (“ERCOT”) provide to Commission Staff unredacted copies of their Emergency Operations Plans (“EOP”). Entities that operate both outside of the ERCOT power region and in the ERCOT power region, and entities that operate solely in the ERCOT power region and have already provided an unredacted EOP to ERCOT (as required by the Emergency Operations Plan rule (16 TAC §25.53), are not required to provide the Staff an unredacted EOP.
Continue Reading Public Utility Commission Requests Unredacted Emergency Operations Plans From All Applicable Entities by June 24, 2022

It has been almost a year since Texas’ Lone Star Infrastructure Protection Act (“LIPA”) was signed into law by Governor Abbott on June 18, 2021, and took effect. In the past year, we have seen developers, tax investors, and purchasers of renewable energy projects alike address compliance with LIPA in varied ways.
Continue Reading A Year Out: Renewable Energy Developer and Investor Compliance with the Texas Lone Star Infrastructure Protection Act

The Texas Supreme Court (“TXSC”) recently confirmed what many already know: the Texas Commission on Environmental Quality (“TCEQ”) has only administrative authority related to water rights in Texas. This means that water rights ownership disputes must utilize Texas courts to adjudicate water rights ownership.
Continue Reading Texas Supreme Court Water Law Verdict Highlights Lack of TCEQ Authority Over Water Rights

Companies with ESG policies – including financing parties investing in renewable energy projects – should assess the impact of Texas Senate Bill 19 on their government contracting opportunities, and should expect and prepare for heightened state regulation of corporate firearm policies in the future.

Effective September 1, 2021, Texas Senate Bill 19 prohibits government entities from contracting with companies that have policies that restrict business with the firearms industry. The bill specifically targets banks and other financial institutions that have at least ten employees and are seeking government contracts of at least $100,000. Under the bill, such institutions are required to provide written verification that they do not have practices, policies, guidance, or directives that “discriminate” against a firearm entity or firearm trade association.
Continue Reading The Government Contracting and Energy Implications of Texas Senate Bill 19: Navigating State Regulation of Corporate Firearm Policies

Texas property owners are becoming more knowledgeable on renewable energy as wind and solar projects continue to thrive in the state of Texas. In the early stages of renewable development, leases were not heavily negotiated and were executed swiftly, at little cost to developers. Today, the expectation is quite different.
Continue Reading Increased Landowner Sophistication Ramps Up Lease Negotiations in Texas

A recent Texas case, Lyle v. Midway Solar, S.W. 3d, 2020 WL 7769632 (Tex. App. Ct., El Paso 83rd Dist. 2020), addressed a challenge that many solar developers wrestle with: how to handle mineral owners. The El Paso Court of Appeals clarified this complex issue and demonstrated the importance of properly addressing the minerals on a site prior to developing a project.

Key Takeaways for Renewable Energy Developers:

This is an important case that renewable energy developers can look to in assessing the minerals on a project site. First, the court actually acknowledged that Texas was a leader in energy and produced the largest share of oil and gas, but that public policy favors adding renewable energy sources into the State’s energy portfolio, which is a great development for renewable energy developers. This case focuses on the conflict between the surface/solar owner and mineral owner/developer, which is always an issue especially for solar developers. The opinion does not address any fact-specific analysis that must be performed when applying the accommodation doctrine, but it 1) does help confirm that the accommodation doctrine does apply when the deed/contract does not address the uses of the surface, 2) sets when the application of the accommodation doctrine should be used, and 3) shows the importance of obtaining any agreements from the proper parties before filing them of record.
Continue Reading Mineral Owner vs. Solar Company: New Texas Case Addresses Key Issue