ERCOT has asked the Texas Supreme Court to find that it is entitled to immunity as a governmental agency and reject a five-year-old lawsuit by a power developer.

The grid operator filed a petition with the high court June 10, asking it to reverse a February ruling by a state appeals court that ERCOT is a private, independent membership-based nonprofit not created or chartered by the state. (See ERCOT’s Legal Issues Continue to Mount.)

ERCOT noted in its filing that the Supreme Court “has already held that this case merits review,” and that it had agreed to answer whether the grid operator is immune from suit and whether the Public Utility Commission has “exclusive jurisdiction” over Panda Power Funds’ claims against ERCOT.

“The court declared that it ‘will review the court of appeals’ decision on appeal from the trial court’s final judgment,’” ERCOT said. “This is that appeal.”

The issue has become critical for ERCOT. It has asked that the more than 100 lawsuits filed against it over the February 2021 winter storm be consolidated and reviewed by a multi-district litigation panel. Another petition before the court has raised the same issues.

ERCOT said the Fifth District Court of Appeals “bungled” the statutory text when it ruled 12-1 in February that the grid operator’s immunity claim has no basis in Texas law. As a result, ERCOT said it would be subject to a suit that “could wreak havoc” on the state’s ability to manage the electric grid and market.

The grid operator said it “performs public functions under the PUC’s ‘complete authority’” and asked the Supreme Court to hold that it can manage the market’s electric resources “subject to the direct accountability to the state, without fear that private litigants will divert its mission, and the state’s resources, to their own ends without regard for the public interest.”

The appeals court said that while the PUC maintains some authority over ERCOT, the grid operator is “a purely private entity that is not created or chartered by the government, maintains some autonomy, is operated and overseen by its CEO and board of directors, and does not receive any tax revenue.”

Panda Power filed suit in 2017, accusing ERCOT of publishing “flawed or rigged” projections regarding energy production demand. The company said it spent $2.2 billion to build three plants, relying, it said, on ERCOT’s “false representations of market data.” Those plants are now operating at a loss.

The Supreme Court last year declined to make a ruling on ERCOT’s status. It said it did not have jurisdiction over the matter because the appeals court in 2018 found the grid operator was entitled to sovereign immunity before the higher court was asked to review the case. (See Texas Supremes Sidestep Ruling on ERCOT Lawsuit Shield.)

In December, the fourth Court of Appeals dismissed a lawsuit filed by San Antonio municipal utility CPS Energy against ERCOT. The three-justice panel sided with ERCOT’s claims that the grid operator is a “governmental unit” and said the utility should have first taken its claims to the PUC.