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Legal and public information experts are questioning the legality – and appropriateness – of last week’s behind-closed doors vote by the Austin City Council to purchase additional natural gas “peaker power plants.”
Although the Texas Open Meetings Act allows the council to discuss competitive utility matters in executive session, formal votes are seldom taken out of public view.
Against that backdrop, some legal experts now say the city council’s interpretation of the Open Meetings Act may have crossed a line, raising questions about potential legal challenges.
One expert told the Austin Free Press that nothing in the law requires the council to keep its votes secret, noting that only each member’s vote — not any protected information — would be disclosed. Therefore, releasing that information would not violate any confidentiality the law is meant to preserve.
“This is not the purpose of a competitive exception to the Open Meetings Act,” Joe Larsen, an open government legal expert at the Houston firm Gregor Wynne Arney, told the Austin Free Press.
“As often as I’ve done this, I’ve never seen someone invoke this. They’re literally abusing the process,” said Larsen, who sits on the board of the Freedom of Information Foundation of Texas.
Because Austin Energy has a monopoly as Austin’s sole electric utility provider, Larsen says the city’s competition-based argument doesn’t apply.
The Austin Free Press has submitted a public information request to the city for the motion and vote – including how each council member voted – taken in executive session at last week’s meeting.
City staff and utility officials maintain the private vote is lawful. At council’s meeting last week, Mayor Kirk Watson cited a narrow provision of the Open Meetings Act that allows the body to discuss and vote privately on public utility matters that – if divulged publicly – could give competitors an edge. Some legal experts agree with the city.
“This matter is completely confidential. If we start saying this little piece of it is, or that little piece of it isn’t, it opens the door to saying the whole thing is not confidential,” District 5 Council Member Ryan Alter told the Austin Free Press. “I don’t like it, because we are a public utility, and we should be as open and forthright with the public as we can. But in this particular instance, we have to protect the utility.”
The city voted to buy natural gas-powered peaker generators that could be fired up quickly when demand spikes in extreme weather conditions to produce an additional 400 megawatts of power. Utility officials say many other utilities are doing the same thing, creating a highly competitive seller’s market. Currently, the city has 10 peaker plants – all of them located in East Austin in largely Black and Hispanic communities.
Austin Energy has stated that these units could cost $2.5 million per megawatt, or $1 billion total. Council members argue that publicly disclosing any information related to their purchase would place them at a marketplace disadvantage. This, they claim, includes the tally of how members voted.
For that reason, Alter said that he was unable to divulge how he voted or by what margin the resolution passed. District 7 Council Member Mike Siegel cited the same rationale in declining to reveal how he voted.
Attorney and former Travis County Judge Bill Aleshire said he agrees that the city legally conducted last week’s meeting and vote behind closed doors. But he emphasized that council members are not legally obligated to keep their votes secret. He cited a case filed in 2017 in which the city of Denton argued that the Texas Open Meetings Act allows public utilities to keep such competitive matters confidential – but does not prohibit disclosure.
“That is nonsense to say that they can’t tell the public how they voted,” Aleshire said. “The law authorizes them to do it, but doesn’t require it.”
Larsen went a step farther. “I think if this goes to court, Austin Energy will lose,” he said. “They have to prove the applicability of the exception.”
Demand and delays
As legal questions hang in the air, the city’s purchasing process is moving forward swiftly. Electricity demand and generating capacity are rising in tandem. At a Utility Oversight Committee meeting, Austin Energy Chief Operating Officer Lisa Martin said that the queue to acquire new peakers is three to five years long, and rising electricity demand initially prompted the utility to consider more peakers.
“Based on the Electric Reliability Council of Texas’s recent reports which show the potential for statewide demand to grow four-fold in the next 6 years, 50% growth is a realistic assumption,” Austin Energy officials told the Austin Free Press.
Environmentalists and social justice advocates remain opposed to new natural gas units, and dispute that Austin’s only alternative to meeting demand is by adding more fossil fuel units that harm the climate and human health. Specifically, they point out that adding new peaker units will release additional greenhouse gases and particulate matter, affecting atmospheric temperatures and local pollution. That runs counter to Austin Energy’s Resource, Generation, and Climate Protection Plan, which commits them to 100% renewable energy by 2035.
“Austin Energy talks about the peakers as an insurance policy, but the utility plans to run them when it’s economic. If this wasn’t true, Austin Energy would commit to not run them at the same time,” Kaiba White, a climate policy and outreach specialist for Public Citizen, stated at the city council’s May 21 meeting.
“On hot, sunny afternoons, Austin Energy is going to add nitrogen oxides to the air and increase ozone formation. Kids, the elderly and lower income people who work outside will bear the brunt of this oppression,” she added.
Emissions and equity
Last week at council, the majority of people who testified against peakers cited fossil fuels damaging the climate and health, environmental racism and a lack of transparency from city officials. Those who favored peakers, including members of the Austin Chamber of Commerce, echoed Austin Energy’s urgency to keep power on for businesses and the city’s most vulnerable residents.
“I think this is a real case of environmental racism,” Susana Almanza, Executive Director for People Organized in Defense of the Earth and Her Resources, said at council last week. “I wonder where all the chambers (of commerce) were when they were putting all these gas peaker plants in East Austin.
“We’re going to be emitting particulate matter, all the different chemicals on the community. Where were they? But they’re here today talking about, ‘yeah, we need them,’” Almanza stated.
Three agenda items are addressing community concerns at the city council’s meeting today. The council is considering resolutions on fossil fuel emissions, environmental justice related to new and old peakers and the equitable siting of future units.
“We didn’t want these peakers. I’m speaking for myself and Ryan (Alter) here,” Council Member Siegel told the Austin Free Press. Given that Austin Energy “said we have to have them as a form of public insurance, then let’s run them as little as possible. Let’s make sure that purchasing these new facilities does not worsen our environmental impact and does not worsen our local air quality.”
Piper Guinn is the health equity reporter for the Austin Free Press, covering the disproportionate health burden carried by our city’s most vulnerable. Piper is a native Texan and recent graduate of Whittier College, where she received a B.A. in political science.
Support for Austin Free Press reporting on government accountability comes from the Cynthia and George Mitchell Foundation. Sponsors do not influence AFP’s editorial decisions.
