On Tuesday, Florida-based national firm Morgan & Morgan filed the first class action against ERCOT on behalf of customers who lost electrical services and potable water during the week of Feb. 14.

More than 4 million in Texas lost power due to the storm that hit last week, dumping as much as nine inches of snow in parts of the state. Texas Gov. Greg Abbott has said there will be an investigation of ERCOT.

Several of the lawsuits allege that, following similar storms in 1989 and 2011, ERCOT refused to winterize equipment despite recommendations of both the Public Utilities Commission of Texas and the Federal Energy Regulatory Commission to do so.

"This is something that was inevitable," Watts said. "It was predictable, and everybody in the state knew it would happen. They were just betting against borrowed time."

The lawsuits, however, have a difficult precedence to overcome.

"Weather is not gross negligence," said Heather Payne, associate professor of law at Seton Hall University School of Law in Newark, New Jersey. "Utilities historically have not been found liable for discontinuing service when the weather is to blame."

Lawyers, however, raise allegations against the utilities that provide power to residents. They question which circuits the utilities chose to shut down, referencing Twitter posts last week that revealed images of lit skyscrapers in Austin and Houston while residents had no heat.

"All the city of downtown Houston was lit up like a Christmas tree," said Francis Spagnoletti, of Spagnoletti Law Firm in Houston, who has filed two lawsuits. "They didn't do anything to shut down the commercial buildings that have been empty since March. This was ill thought, ill planned, and the price that was paid was in the average person."

At least two lawsuits have alleged wrongful death claims, one involving a grandfather in Houston and the other an 11-year-old boy in Conroe. Dozens of people have died in Texas from the winter storm, some from hypothermia and others from carbon monoxide poisoning, but the final death toll is uncertain. Watts predicted it could be hundreds.

"It's the sad reality we don't yet know how many people have died," he said. "What I'm hearing, more and more frequently, is people saying that the uncle hadn't been heard of in five days. They thought his cellphone battery ran out. Now that they can move on roads, they find a dead body sitting in the home for days."

It's not the first time that Watts has filed suit against utilities. He represented 16,000 victims of wildfires in Northern California who reached a $13.5 billion settlement with Pacific Gas & Electric, which filed for Chapter 11 bankruptcy in 2019. PG&E also paid $11 billion to insurance companies.

As was the case in the California wildfire cases, insurers could seek indemnification from the Texas utilities for the property damages caused by burst pipes that flooded homes, Watts said.

"It's the same thing," Watts said. "There, the utility companies caused wildfires. Here, the utility companies caused massive home flooding and a huge number of deaths of innocent people."

A Cold Reception in Court?

ERCOT has not responded in court and declined to make a statement about the lawsuits.

"This is a tragedy. Our thoughts are with all Texans who have and are suffering due to this past week," wrote ERCOT spokeswoman Leslie Sopko in an emailed statement.

But she defended ERCOT's actions. "Because approximately 46% of privately owned generation tripped offline this past Monday morning, we are confident that our grid operators made the right choice to avoid a statewide blackout," she wrote, referring to Feb. 15.

The lawsuits focus less on the events of the last week, though, and more on the failure of ERCOT to winterize equipment following past storms. ERCOT, however, does not own the power plants, said Payne.

"Texas is a deregulated market," she said. Although ERCOT has the monopoly on transmission and distribution, retail and generation of power is fully deregulated. Some companies may even own a single natural gas plant, she said.

"So, in terms of whether I choose to winterize, that is totally a choice that is for that specific power plant—whether they think it's going to actually be worth their capital to for the conditions that they foresee," she said.

Unless winterizing equipment was part of their purchasing contracts, generators had no requirement to make such changes to their power plants, she said.

The situation in Texas was not the same as in California, either, she said. In California, the utility was the cause of the wildfire. In this case, ERCOT was maintaining the grid by reducing demand once power plants shut down.

"There isn't any claim in Texas, at least that I have heard being made, that ERCOT's actions caused the weather," she said. "The weather caused the outages."

ERCOT has been sued before. The Texas Supreme Court heard oral arguments Sept. 15 in a case in which ERCOT, which is a private nonprofit, is defending a 2018 appeals court decision that found it had a sovereign immunity defense. Dallas-based Panda Power accused ERCOT of causing its economic losses after spending $2.2 billion building new power plants based on the grid operator's report predicting the state was short on generation.

As for the utilities named in the lawsuits, many have insisted that they cut power at the direction of ERCOT. In a Feb. 19 statement, CenterPoint Energy, one of the defendants, said it does not generate its own power. Outages, the company said, "due to lack of generation availability are out of the company's control."

AEP Texas, a unit of American Electric Power and another defendant, said in a Feb. 17 statement that it had limited flexibility in rotating the power load, focusing on hospitals, water and sewer plants, and customers whose power had been out the longest.

Many utilities had to repair damages to their electrical systems due to the subfreezing temperatures. And, although Texas has had prior winter storms, none compared to last week's event, Payne said.

"This was unprecedented both in terms of its impact on natural gas production and also unprecedented in the demand that was seen," she said.