Off the Kuff Rotating Header Image

December 10th, 2021:

State judge rules SB8 is unconstitutional

Sounds a little better than it actually is, but it’s still pretty good.

Right there with them

A Texas judge on Thursday ruled that the state’s controversial law restricting abortions after about six weeks of pregnancy violates the Texas Constitution, saying it should not be enforced in court.

Although Thursday’s ruling is a win for abortion rights advocates, the order only has direct consequences for the 14 lawsuits in the case that the judge oversaw. The judge did not issue an injunction to block cases from being filed, though experts say it would likely be used as precedent in those cases.

Jackie Dillworth, communications director at Whole Woman’s Health, said the group’s four clinics across the state will not resume full services but would be “eager” to do so if an injunction were issued.

“We are so grateful to Judge Peeples for his ruling today,” said Dillworth. “[The law is] depriving Texans of their rights, autonomy, quality of life, and health.”

[…]

State District Judge David Peeples’ ruling Thursday emphasized that he wasn’t ruling on abortion rights, but rather on the enforcement method that the law employs.

“This case is not about abortion; it is about civil procedure,” he wrote in his order.

Peeples echoed concerns on how a similar form of enforcement could be used to infringe on other constitutional rights, a view expressed by members of the U.S. Supreme Court during oral arguments last month in two other challenges to the law.

“In sum, if SB 8’s civil procedures are constitutional, a new and creative series of statutes could appear year after year, to be enforced by eager ideological claimants, who could bring suit in their home counties, where the judges would do their constitutional duty and enforce the law,” Peeples said in his order. “Pandora’s Box has already been opened a bit, and time will tell.”

[…]

The judge ruled that Texas Right to Life cannot file lawsuits against the 14 plaintiffs for helping others get an abortion disallowed by the Texas law. The plaintiffs include doctors, nonprofit organizations and Planned Parenthood. However, other parties or individuals can still sue the plaintiffs under the abortion law.

“This ruling is limited to the named parties. It does not apply to all other potential plaintiffs and defendants. John Doe could file suit tomorrow, without regard to this ruling,” Josh Blackman, a law professor at South Texas College of Law Houston, said in an email.

Blackman added that Peeples can only rule on the 14 cases before him — not on any other cases or the law overall.

“A judge can’t declare a statute unconstitutional in all contexts. Courts can only issue rulings with regard to particular parties in a particular case. But other courts can choose to treat this ruling as precedential (and likely would),” he said.

But even if Thursday’s ruling had stopped the law from being enforced, SB 8 is written with an unusual restriction that allows someone to later be sued if that ruling is overturned on appeal.

Joanna Grossman, a professor at SMU Dedman School of Law, said that means providers may not be comfortable resuming procedures until all the court battles are waged.

“It was just another thing to stack the deck against providers so that it just wasn’t possible for them to manage their risk,” she said. “I assume they’re all having conversations with their lawyers right now about [whether] this actually gives them any ability to reopen.”

See here for the background, and here for a copy of the judge’s order. The ruling will be appealed – since this was heard in Travis County, that means that the Third Court of Appeals will get it next, unless there’s some mechanism to have it go straight to the Supreme Court. There is of course the still-pending case before SCOTUS, which could generate a ruling as soon as today or sometime later or maybe never, who even knows. I suppose with the violence they plan to do to reproductive rights in the Mississippi case, the assassins on the high court could make a cynical nod towards “moderation” by putting the kibosh on Texas’ law. But again, who knows what they’ll do. In the meantime, now we wait for the next steps in this case. It’s a start.

Joy Diaz joins the Governor’s race

I wish her luck, but I don’t think she’s going to get very far.

Joy Diaz

After 16 years on the airwaves in Austin as a journalist at KUT and the public affairs show, “Texas Standard,” Joy Diaz announced Wednesday that she’s running for governor.

Diaz, who left her journalism job in early November, said at the time that she was inspired to run for office after she and her elementary school-aged son both contracted COVID-19 earlier this year, an experience that she said ignited her passion for public service.

“I recently left journalism to fulfill a mission — an unshakeable dream, a fire in my soul — to serve you as the next governor of the great state of Texas,” Diaz, 45, said in a video posted online ahead of her Wednesday campaign launch at Scholz Garten in downtown Austin.

[…]

Before launching her campaign, Diaz completed a six-month course at the LBJ Women’s Campaign School at UT’s LBJ School of Public Affairs, which offers training to would-be candidates for office. Through the program, Diaz was paired with a mentor: state Rep. Vikki Goodwin, D-Austin.

Goodwin, who is not endorsing Diaz’s campaign, said she always supports more candidates entering primary contests, because it helps drive more voters to the polls.

Diaz said in her announcement video that she decided to run for governor to focus on three key issues: the border, public education and state preparedness for the pandemic.

Diaz grew up in Mexico City, the child of an American missionary. During her time as a reporter, she said she has spoken with people across the state and gained a deeper understanding of how state policies affect their lives.

“The most valuable information comes from the people who live these policies day in and day out, everyday Texans like you and me,” Diaz said in the video. “When I hear men in power describe the border as a crisis, it just reinforces one thing, that they haven’t done their jobs.”

Diaz said her perspective as a former educator, her career before she turned to journalism, would serve her well as governor and could “help improve our schools dramatically.”

She used her announcement as an opportunity to knock Abbott and other state leaders for their response to the coronavirus pandemic, highlighting her own experience after testing positive for COVID-19.

See here for some background. We first heard Diaz’s name as a potential candidate before Beto’s official announcement. Which means I have to bring this up:

In an interview with the Statesman, Diaz said that she’s not interested in challenging other Democrats like O’Rourke. Instead, she told the newspaper, she’s interested in defeating one person: Gov. Abbott.

“Our current leadership has forgotten that their mission is to serve us,” Diaz continued in her video. “And yes, conventional wisdom may say that it’s unlikely for an average person, even a qualified one, even one with expertise, even one with a huge heart. Texans don’t solely rely on conventional wisdom, we believe in miracles.”

Austonia quotes her as follows: “I am running against Greg Abbott. That is my goal. That is my focus. I am ushering Greg Abbott out of office.” Here’s the thing – that’s a lovely sentiment, and a fine mission statement. But the truth is, right now she is running against Beto O’Rourke, and any other Dems who may file for the race (more on that in a minute). That’s fine – she has as much right to be there as anyone, and may the best candidate win. The point is, the only way she gets to run against Greg Abbott is if she beats Beto first. I appreciate that she doesn’t want to go on the attack as an opening move, but there’s no avoiding that reality. Either she wins and opposes Abbott in November, or Beto does.

Anyway. I think Joy Diaz has the makings of an appealing candidate, and I’m happy for there to be a reason for everyone to campaign more actively between now and March. Let there be more attention on Democratic candidates, especially attention that is outside the usual framing of them versus Greg Abbott. Contested primaries can certainly be ugly, but better to have more interest in them than to just snooze through them.

As far as “other candidates” go, the Statesman reports that Diedre Gilbert is still in the Dem primary for Governor. However, KXAN reported that on Wednesday Gilbert announced she will drop out of the Dem primary and will run as an independent. The Patrick Svitek spreadsheet agrees with KXAN, so we’ll see. As we all know, it’s a high bar to clear to get on the ballot as an indy in Texas. We’ll know for sure about the first part of that equation on Monday.

ERCOT and PUC swear there will be no blackouts this winter

Do you believe them?

The Public Utility Commission and the Electric Reliability Council of Texas on Wednesday pledged that the “lights will stay on” this winter as it inspects power generators and enforces other requirements to avoid a deadly power outage that crippled Texas during a February storm.

Peter Lake, chairman of the PUC, which regulates utilities in the state, said at a press conference that his agency and ERCOT, the state’s grid manager, have moved at “lightning speed” to change the requirements for power producers and natural gas supplies to operate during winter months. The PUC oversees ERCOT.

“Our grid is safer and stronger than ever,” he said. “Because of all these efforts, the lights will stay on. No other grid has made so many changes in such a short amount of time as we have.”

The promise to keep power flowing comes about 10 months after massive outages caused by a winter storm that plunged millions of Texans into freezing darkness, leading to the deaths of hundreds. All commissioners who served the PUC resigned or were fired, as was the CEO of ERCOT. State legislators and new commissioners on the PUC have passed laws and rules requiring power generators and affiliated companies to better prepare for frigid weather.

Among the changes are new penalties and requirements, and a reduction in the maximum price for one megawatt hour of power to $5,000 from $9,000 beginning Jan. 1. Alison Silverstein, an Austin-based energy consultant who worked for the PUC from 1995 to 2001 and with the Federal Energy Regulatory Commission from 2001 to 2004, said the previous pricing scheme allowed generators to make the bulk of their money during tight grid conditions.

“This is intended to redistribute revenues so instead of making all your money only during extreme scarcity events, you’re getting more money from a flatter curve,” she said. ” You’re still getting $5,000 per megawatt hour in a tight time, which is still a whole lot of cash, but more of your revenue will come from normal days.”

[…]

Silverstein said that the violation reports and other rules changes are a good start, but that more needs to be done. The PUC, she said, should commission an analysis of the current condition of the grid, determine what needs to be done to improve reliability and estimate the cost to consumers, she said. Power generators, she said, should be able to show they can restart the entire grid in the event it collapses. And, she said, the PUC should address Texas’ nation-leading energy demand instead of solely focusing on adding new generation.

“I think they are right to say they have made a meaningful dent in preventing some of the problems that Winter Storm Uri revealed,” Silverstein said. “But that doesn’t mean the job is done yet.”

It is plausible to me that some beneficial changes have been made. Whether any of that makes a material difference or not, who knows. If we do make it through the winter with no problems, the odds are it’s due to a more normal winter and a bit of luck rather than anything transformative, but in the end it is the result that matters. For sure, whether by luck or by better oversight and regulation, Greg Abbott will win his bet and claim credit for it. The Texas Signal and the Trib, which reminds us that the Railroad Commission has not yet drafted any new weatherization rules for gas producers, have more.

Our cow poop future

It’s a resource we have a lot of, to be sure.

TotalEnergies plans to build its first biomethane plant in the Texas Panhandle to produce renewable transportation fuel from cow manure.

The French oil major on Tuesday said it has partnered with California-based Clean Energy Fuels Corp. to construct a biomethane plant on the Del Rio Dairy Farm in Friona, Texas, where it plans to produce more than 40 gigawatt hours of biomethane every year. The biomethane produced at the dairy farm will be distributed across the country through Clean Energy’s fueling station network, supplying renewable natural gas to as many as 300 trucks a year.

“We are pleased to consolidate our entry into the U.S. biomethane market by jointly developing this first production unit on the Del Rio Dairy farm, through our joint venture with Clean Energy,” said Laurent Wolffsheim, TotalEnergies’ senior vice president of green gases and growth. “This project marks another step in TotalEnergies’ transformation into a multi-energy company, and in the implementation of its ambition to be a major player in renewables.”

Oil and gas companies are increasingly investing in biogas and alternative fuel projects as they face mounting pressure from governments and investors to avoid the worst consequences of climate change. TotalEnergies said it expects its Texas biomethane project will divert 45,000 tonnes of carbon dioxide emissions annually by substituting fossil fuels with renewable natural gas made from cow manure, a significant source of methane emissions.

You can supply your own Ted Cruz joke here. I don’t actually know how much of an improvement biogas is over other options, from a climate change perspective. I hope it’s worthwhile, if only for the long term humor potential. And that’s your important cow poop news update for the week.