A blustery cold day seemed appropriate Thursday as the parties to a lawsuit over the state’s power supply projections met to discuss sealing documents.
In February, Panda Power Generation Infrastructure and its subsidiaries sued the Electric Reliability Council of Texas, Inc. saying the latter offered up flawed information about the scarcity of power in Texas to induce Panda and other companies to build power plants in the state. ERCOT eventually told the power companies that the numbers were off, but — Panda contends — not soon enough to keep Panda and others from making significant investments in the state.
Once the investments were made, Panda contends, the true numbers showed that plans for alternative energy sources like gas and wind would keep the state from seeing the massive energy shortfalls that ERCOT had predicted. That would, Panda said in its complaint, mean that Panda would see less return for its investments in the state.
Panda began operating its state-of-the-art, 758-megawatt combined cycle natural gas power plant on Sherman’s south side in the summer of 2014 and announced an expansion in 2015 that would add an additional 450 to 500 megawatts, adding a third gas-fired turbine and a second steam turbine.
The company also built two plants in Temple, Texas.
In its answer to the suit, filed in April, ERCOT denied all of the allegations.
But Thursday’s battle in Judge Jim Fallon’s court wasn’t over who wins the litigation. It was over how the litigation would progress and what parts of it would be available for review by the general public. Attorney Werner A. Powers argued that ERCOT wants to keep the severance agreements for an employee named Wayne Hoffman sealed because he was paid to keep quiet about things that ERCOT did before he left the company in 2013.
ERCOT’s attorney J. Hampton Skelton said that is not true. He said employees who leave ERCOT sign confidentiality agreements that they are free to sign or not sign. If they sign, they get the severance and if they don’t sign, they don’t get the money. He said ERCOT was concerned that if the amount of money Powers got were made public, someone would be able to work backwards from the amount of money he was given and arrive at his salary. Salaries at ERCOT, Skelton said, are a private matter.
At that point, Powers suggested, and Fallon said he had also considered, just redacting the salary amount. That way no one would be the wiser about the salary amount, but the agreement would be public.
Skelton said that wasn’t necessary because the document is, on its face, confidential. He said both parties who entered into the agreement meant for it to be confidential and agreed to that when they signed it. He said Panda was not seeking to have the judge make the document something that it was never intended to be — public.
Powers disagreed. He said sealing documents away from the public eye in a court case is a very serious endeavor that should not be done lightly and that, if the salary were redacted, there should be nothing in there that ERCOT should fear being made public unless the salary wasn’t really its main worry. He then said that it was really worried about some of the documents attached to the agreement as exhibits which, Powers said, showed wrong doing on ERCOT’s part.
Skelton said that was not the case.
Fallon took the matter under advisement and said he would let the parties know how he ruled at a later date.
While Fallon didn’t rule on the question about sealing the document, he did rule on a couple of other things. He set a trial date for the case of Feb. 6, 2018. That is considerably later than the date of Oct. 23, 2017 that Panda wanted. Powers said Panda needed the earliest possible so that it can use the damages it stands to win to meet some of the obligations Panda faces, it contends, due to representations that ERCOT made.
Shelton said ERCOT simply could not be ready for trial that early.
Fallon picked the 2018 date but said neither side should count on an automatic continuance at any point. He also agreed with both sides that the case required someone special to oversee the discovery process. Both sides said they would try to reach an agreement about a special master to rule on discovery matters in the case. Should the two sides not be able to agree, Fallon will be able to pick someone to act as a special master for the case. The two sides will be able to appeal that person’s decisions to Fallon. However, both sides agreed that should a side appeal such a decision and lose, that side will pay the other side’s cost in appealing the decision.