Aspire Power Ventures, LP v. Public Utility Commission of Texas, Electric Reliability Council of Texas, Thomas Gleeson, Lori Cobos, Jimmy Glotfelty, Kathleen Jackson, and Courtney Hjaltman

Opinion

ACCEPTED 15-24-00118-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 4/8/2025 9:09 AM CHRISTOPHER A. PRINE CLERK FILED IN 15th COURT OF APPEALS AUSTIN, TEXAS direct dial: 512.370.2802 4/8/2025 9:09:28 AM eclark@winstead.com CHRISTOPHER A. PRINE April 8, 2025 Clerk

Via E-File

Christopher A. Prine Clerk of the Court Fifteenth Court of Appeals 300 W. 15th Street, Suite 607 Austin, TX 78701

Re: No. 15-24-00118-CV; Aspire Power Ventures, LP v. Public Utility Commission of Texas, Electric Reliability Council of Texas, Thomas Gleeson, Lori Cobos, Jimmy Glotfelty, Kathleen Jackson, and Courtney Hjaltman; In the Fifteenth Court of Appeals, State of Texas

Dear Mr. Prine:

On April 1, 2025, Appellant Aspire filed a letter informing the Court of the Texas Supreme Court’s recently issued opinion in Kensington Title-Nevada, LLC v. Texas Department of State Health Services, 1 which purportedly decided “the very same” exhaustion argument that ERCOT and the PUCT make here. Kensington does nothing of the sort.

Kensington centered on whether the plaintiff-petitioner pled a proper rule- applicability challenge under APA § 2001.038(a).2 No one disputed that the challenged DSHS licensing rule was a “rule” under and subject to the APA. 3 DSHS’s argument was instead that the petitioner’s challenge of “the Department’s application of the rule rather than the applicability of the rule” fell outside APA § 2001.038(a)’s limited immunity waiver; 4 thus, the Kensington Court’s jurisdictional analysis turned exclusively on “the scope of Section 2001.038(a) applicability claims.” 5 Because the Court determined the petitioner “pled a proper rule-applicability challenge within the

1 2025 WL 937478 (Tex. March 28, 2025).

2 Id. at *4.

3 See id. at *2, 4. Specifically, the petitioner challenged the applicability of 25 Tex. Admin. Code § 289.252(a)(2), which regulates the possession and use of radioactive materials. 4 Id. at *2 (emphasis original).

5 Id. scope of [APA § 2001.038(a)’s] immunity waiver,” the petitioner was not required to exhaust its administrative remedies. 6

As ERCOT has already explained (ERCOT BOM at 44), Aspire’s reliance on the APA’s exhaustion carveout ignores the key threshold jurisdictional issue in dispute here: whether the ERCOT Protocols and PUCT orders approving ERCOT Protocols are “rules” under and subject to the APA. ERCOT BOM at 45–46; see also PUCT BOM at 26. They are not, as RWE makes clear. 7

Because the ERCOT Protocols are not APA “rules,” ERCOT properly asserted its immunity and the PUCT’s exclusive jurisdiction in its Amended Plea. The Texas Supreme Court has already held that complaints regarding ERCOT’s alleged violations of PURA and “whether ERCOT properly implemented its protocols . . . come[] within the PUC[T]’s exclusive jurisdiction.” 8 As in CPS, the trial court here lacked jurisdiction because ERCOT is immune and because the PUCT has exclusive jurisdiction over complaints about ERCOT’s alleged PURA violations and its Protocols. 9

Respectfully submitted,

Elliot Clark

cc: All parties of record

6 Id. at *5–6 (“The[] efforts to invoke concepts of primary jurisdiction and exhaustion of administrative

remedies are misplaced. As we have already explained, the statute expressly authorizes a ‘court [to] render a declaratory judgment without regard to whether the plaintiff requested the state agency to rule on the validity or applicability of the rule in question.’”) (quoting APA § 2001.038(d)). 7 PUCT v. RWE Renewables Americas, LLC, 691 S.W.3d 484, 491–92 (Tex. 2024). 8 CPS Energy v. ERCOT, 671 S.W.3d 605, 619–620 (Tex. 2023). 9 Id. Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Elliot Clark Bar No. 24012428 eclark@winstead.com Envelope ID: 99391715 Filing Code Description: Letter Filing Description: ERCOT Response Ltr re Aspire Supp Auth Status as of 4/8/2025 9:14 AM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Mark Little mark.little@bakerbotts.com 4/8/2025 9:09:28 AM SENT

Macey Stokes macey.stokes@bakerbotts.com 4/8/2025 9:09:28 AM SENT

David Laurent david.laurent@oag.texas.gov 4/8/2025 9:09:28 AM SENT

Laura Courtney laura.courtney@oag.texas.gov 4/8/2025 9:09:28 AM SENT

George Fibbe george.fibbe@bakerbotts.com 4/8/2025 9:09:28 AM SENT

Patrick Leahy patrick.leahy@bakerbotts.com 4/8/2025 9:09:28 AM SENT

James ScottMcCarley scott.mccarley@oag.texas.gov 4/8/2025 9:09:28 AM SENT

Associated Case Party: Aspire Power Ventures, LP

Name BarNumber Email TimestampSubmitted Status

Brent M.Rubin brubin@ccsb.com 4/8/2025 9:09:28 AM SENT

Ken Carroll kcarroll@ccsb.com 4/8/2025 9:09:28 AM SENT

Chrysta L.Castaneda chrysta@castaneda-firm.com 4/8/2025 9:09:28 AM SENT

Nicole Michael nicole@castaneda-firm.com 4/8/2025 9:09:28 AM SENT

Monica Latin mlatin@ccsb.com 4/8/2025 9:09:28 AM SENT

Associated Case Party: Electric Reliability Council of Texas

Name BarNumber Email TimestampSubmitted Status

Elliot Clark eclark@winstead.com 4/8/2025 9:09:28 AM SENT

Elin Isenhower eisenhower@winstead.com 4/8/2025 9:09:28 AM SENT

Elin Isenhower eisenhower@winstead.com 4/8/2025 9:09:28 AM SENT Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Elliot Clark Bar No. 24012428 eclark@winstead.com Envelope ID: 99391715 Filing Code Description: Letter Filing Description: ERCOT Response Ltr re Aspire Supp Auth Status as of 4/8/2025 9:14 AM CST

Associated Case Party: Electric Reliability Council of Texas

Elin Isenhower eisenhower@winstead.com 4/8/2025 9:09:28 AM SENT

Elliot Clark eclark@winstead.com 4/8/2025 9:09:28 AM SENT

Associated Case Party: Public Utility Commission of Texas

Name BarNumber Email TimestampSubmitted Status

Amanda AtkinsonCagle Amanda.Cagle@oag.texas.gov 4/8/2025 9:09:28 AM SENT

Jordan Pratt Jordan.Pratt@oag.texas.gov 4/8/2025 9:09:28 AM SENT

John Hulme John.Hulme@oag.texas.gov 4/8/2025 9:09:28 AM SENT