That’s the question the Public Utility Commission of Texas has teed up for consideration in a new rulemaking project, to be launched soon.  The PUC Commissioners have many times in the past debated how to best view “merchant” DC Ties—are they like non-controllable generators, delivering power into the ERCOT grid at levels and at times determined by the importing DC Tie owners, without ERCOT input on dispatch or quantity of MWs delivered?  Or, are they like transmission lines, which are subject to ERCOT curtailment as necessary to address congestion? Or, are they like load, consuming power at a specific point, and at a level of consumption chosen solely by the load (exporting DC Tie) owner?

And how are their benefits to Texans to be determined?  On an economic basis? On a reliability basis? On both bases? Further, with respect to such benefits, should there be a default assumption regarding how much of the DC Tie capability should be considered “deliverable” to the market?  For example, should the grid operator strive to ensure “full deliverability” so that 100% of any presumed economic benefits from a DC Tie import are considered always available (or must be made available by the grid operator), even if that deliverability causes congestion or constrains full operation of one or more existing Texas generation units?  Similarly, should the Commission consider whether a DC Tie’s hypothetical reliability benefits are always available, or should it delve into the transmission grid modeling regarding reliability impacts in various grid scenarios?

In the past, for example with the Southern Spirit merchant DC Tie project, the Commission evaluated a DC Tie on an ad hoc basis and developed policies in a contested case, requiring further work by ERCOT to implement those policies.

The Commissioners indicated in April that they want a full rulemaking proceeding to consider using a more generic and more “holistic” approach to consideration of DC Ties.  Perhaps that approach might provide clarity to DC Tie developers regarding how to evaluate the economics of a possible project.

At the very least, all market participants who might be affected by further development of DC Ties connecting ERCOT to adjoining grids—including generators, retailers, utilities, and potential DC Tie developers—should be attuned to, and consider participating in, the DC Tie rulemaking to ensure full knowledge of, and the ability to potentially influence the Commission’s approach to, the ways that DC Ties might impact ongoing ERCOT power market development.

That’s the question the Public Utility Commission of Texas has teed up for consideration in a new rulemaking project, to be launched soon.  The PUC Commissioners have many times in the past debated how to best view “merchant” DC Ties—are they like non-controllable generators, delivering power into the ERCOT grid at levels and at times determined by the importing DC Tie owners, without ERCOT input on dispatch or quantity of MWs delivered?  Or, are they like transmission lines, which are subject to ERCOT curtailment as necessary to address congestion? Or, are they like load, consuming power at a specific point, and at a level of consumption chosen solely by the load (exporting DC Tie) owner?

And how are their benefits to Texans to be determined?  On an economic basis? On a reliability basis? On both bases? Further, with respect to such benefits, should there be a default assumption regarding how much of the DC Tie capability should be considered “deliverable” to the market?  For example, should the grid operator strive to ensure “full deliverability” so that 100% of any presumed economic benefits from a DC Tie import are considered always available (or must be made available by the grid operator), even if that deliverability causes congestion or constrains full operation of one or more existing Texas generation units?  Similarly, should the Commission consider whether a DC Tie’s hypothetical reliability benefits are always available, or should it delve into the transmission grid modeling regarding reliability impacts in various grid scenarios?

In the past, for example with the Southern Spirit merchant DC Tie project, the Commission evaluated a DC Tie on an ad hoc basis and developed policies in a contested case, requiring further work by ERCOT to implement those policies.

The Commissioners indicated in April that they want a full rulemaking proceeding to consider using a more generic and more “holistic” approach to consideration of DC Ties.  Perhaps that approach might provide clarity to DC Tie developers regarding how to evaluate the economics of a possible project.

At the very least, all market participants who might be affected by further development of DC Ties connecting ERCOT to adjoining grids—including generators, retailers, utilities, and potential DC Tie developers—should be attuned to, and consider participating in, the DC Tie rulemaking to ensure full knowledge of, and the ability to potentially influence the Commission’s approach to, the ways that DC Ties might impact ongoing ERCOT power market development.

Companies in the business of electric power generation have until May 31, 2024 to complete and file their Notices of Intent to apply for a Texas Energy Fund Generation Loan — the first step to be eligible for a loan under the program. This program draws from the five-billion-dollar Texas Energy Fund developed by the Texas Legislature and the Public Utility Commission of Texas; this specific program will provide low-interest loans for construction of or upgrades to dispatchable electric generating facilities in the ERCOT region. Qualifying new facilities may be able to finance up to 60% of their cost through the program. Eligibility and application evaluation hinge on a number of regulatory, technical, and financial considerations. Prospective applicants should review all applicable statutes and rules thoughtfully to ensure their application meets all the requirements and highlights upon which the TEF administrator may focus their evaluations.

When attempting to take advantage of the loan program, companies may want to structure the project so that it will additionally be eligible for the Texas Energy Fund Completion Bonus Grants, which provide a per-MW incentive for qualifying facilities that come online prior to June 1, 2029 and meet certain performance requirements.

Enoch Kever is pleased to co-sponsor UT Law’s 34th Annual Conference on State and Federal Appeals on June 6-7 in Austin. The conference is designed for advanced-level civil appellate practitioners and has earned a reputation as the premier program on appellate practice and procedure in Texas. Enoch Kever member, Elana Einhorn, served on the planning committee and will preside over the afternoon session on June 6.

Here is the link to the full brochure—which can be downloaded from the Overview page.

Texas is one of the states taking a keen interest in whether domestic infrastructure industries obtain services or equipment from China, Russia, North Korea, or Iran. In particular, ERCOT Market Participants mark your calendars for upcoming attestation deadlines. On April 11, 2024 the Public Utility Commission of Texas approved several Nodal Protocol Revision Requests from ERCOT. One of those requests incorporates the updates from the 88th legislative session to the Lone Star Infrastructure Protection Act. These changes include a requirement to attest to whether the Market Participant has purchased certain equipment or services from companies that are headquartered in or owned, directly or indirectly, by a citizen of China, Russia, North Korea, Iran, or other country designated by the Governor. If a Market Participant has applicable equipment associated with one of these countries, the Market Participant will be required to provide detailed information regarding the equipment and transaction as well as the steps the Market Participant is taking to mitigate external access to the equipment. Attestations for purchases made after June 18, 2021 will be due October 28, 2024. An additional attestation for purchases made between June 8, 2018 and June 18, 2021 will be due December 15, 2024. Market Participants will have ongoing reporting obligations associated with purchases implicated by the new rule. This change will likely be a large compliance lift for many entities and we suggest making sure you understand both the statute and Protocols before beginning to review equipment and purchases.

Craig EnochRetiring over 20 years ago from the Texas Supreme Court, Justice Craig T. Enoch set out to establish a first-class appellate practice. Joining the list of outstanding Texas appellate practitioners, Justice Enoch has received the 2024 Gregory S. Coleman Outstanding Appellate Lawyer Award from the Texas Bar Foundation. The Gregory S. Coleman Outstanding Appellate Lawyer Award was established in 2011 in honor and memory of Gregory S. Coleman. The award celebrates the high ideals and standards that Coleman demonstrated in his appellate practice and personal life. The recipients exhibit an outstanding appellate practice while maintaining a strong commitment to providing legal services for the underserved. The award recognizes dedication to mentoring young attorneys as well as a strong moral compass to guide both professional and personal pursuits.

Justice Craig T. Enoch is a founding member of ENOCH KEVER PLLC. Justice Enoch retired from the Texas Supreme Court after completing 22 years of judicial service, having served as a district court judge, an intermediate appellate court chief justice, and as a justice of the Texas Supreme Court. After his judicial service, Justice Enoch established specialized Appellate and Government Enforcement and Regulated Industries Litigation Practice Groups for a major regional law firm headquartered in Dallas, Texas. Recognizing the importance of effective advocacy for businesses at their intersection with government, Justice Enoch co-founded ENOCH KEVER PLLC, the firm that advocates for business. Justice Enoch’s experience includes representing businesses before judicial, administrative, and legislative governmental bodies. His experience as a neutral arbitrator has involved decisions on matters ranging from disputes over utility construction and purchase contracts to employee benefit agreements and estate claims. Since returning to private practice, Justice Enoch has participated in hundreds of appeals and has developed noted expertise on the existence, nature, and extent of fiduciary obligations. Also, Justice Enoch is Board Certified in Civil Trial Law, maintains his membership in the College of the State Bar, is a long-time member of the Texas Supreme Court Historical Society, and an active bar educator, writing and speaking at numerous Texas State Bar educational programs throughout the years.

Justice Enoch will be publicly recognized at the Texas Bar Foundation Annual Dinner held on June 21, 2024 at the Hilton Anatole in Dallas.

Founded in 1965 by attorneys determined to assist the public and improve the profession, the Texas Bar Foundation has become the largest charitably funded bar foundation in the country. The Texas Bar Foundation relies on the contributions of its Fellows to improve the lives of Texans. To date, through the generosity of the Fellows, the Texas Bar Foundation has awarded more than $26 million in grants to numerous organizations across the state.

Election to the Fellows of the Texas Bar Foundation is one of the highest honors that can be bestowed upon a member of the State Bar of Texas, representing one-third of one percent of Texas attorneys. Selection is based on an outstanding record in the legal profession as well as proven commitment to support the community at large. For more information about the Texas Bar Foundation, please visit www.txbf.org.

We are pleased to announce the addition of Jessica Soos as Senior Counsel.  Jessica’s practice has focused on the dynamic evolution of the competitive and regulated electric markets in Texas and across the United States. She helps clients evaluate the impact and potential impact of legislative and regulatory constraints and opportunities on the electric markets. Her years of experience as a regulator with the Public Utility Commission of Texas (PUCT), and as one of the Assistant Attorneys General representing the PUCT in the Texas courts, arm her with important perspective and understanding as she advises her clients. In addition to her role as a counselor, Jessica also enjoys her role as an advocate for her clients in contested cases at the State Office of Administrative Hearings, before state courts, and before state agencies including the PUCT and ERCOT.

Each year since the founding of ENOCH KEVER in 2011, we have been included among the Best Law Firms in America. Again this year, members of our firm have been singled out with high praise for their professionalism and outstanding service. The list includes ENOCH KEVER partners, of counsel, and associates.

Founding member Andy Kever proudly noted that the Firm, for more than a decade, has continued to expand the number of our colleagues who are recognized for excellence in an ever-widening range of legal subjects.

As the legislative landscape in Texas continues to transform, many have taken to postulating the pros and cons.  Our own Zack Horton took to his laptop, and penned his thoughts for the October 2023 edition of the News for the Bar — a publication of The Litigation Section of the State Bar of Texas.  The article, in its entirety, can be viewed here.

Craig Enoch and Amy Prueger each had articles selected for The Advocate’s “Best Of” Litigation Update 2023, a publication of the State Bar of Texas Litigation Section.

Craig EnochCraig, along with Co-Author Thomas R. Phillips, penned the Texas Supreme Court Update – a paper surveying cases that were decided by the Supreme Court of Texas from September 1, 2021, through October 31, 2022. Petitions granted but not yet decided were also included.

Amy Leila Prueger, along with co-author Jadd F. Masso, authored Rohrmoos and the Killer Rabbit of Caerbannog: Attorney’s Fees Update – a comprehensive review of applicable statutes and caselaw concerning the recovery of attorneys’ fees following the Texas Supreme Court’s seminal decision in Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 490 (Tex. 2019), which clarified the standards for the recovery of attorney’s fees in Texas courts.

For more information, or to read the articles in full, follow this link to The Advocate: Summer 2023, Vol. 103 The “Best of” Litigation Update 2023.

On September 7, Enoch Kever attorneys Amy Prueger  and Sara Berkeley Churchin  (along with Supreme Court of Texas Justice, Jeff Boyd) presented a CLE  to over 70 attorneys with the San Antonio Bar Association. The presentation, sponsored by the State Bar of Texas Litigation Section focused on the newly formed Texas Business Court and 15th Court of Appeals.

 

Enoch Kever is known as A Powerful Voice for Business at the Intersection of Business & Government. With the new business courts and rules coming online, Amy and Sara have taken the lead in becoming knowledgeable and offering counsel about this dramatic change in the Texas courts.  If your organization is interested in learning more about the Texas Business Court and the 15th Court of Appeals, please reach out to Amy or Sara.