Battery Storage Lawsuit Dismissed
Last week a visiting judge dismissed the lawsuit between neighbors over a proposed battery electric storage system (BESS) in the Warda area.
Late last year, plaintiffs Jim Clements, Guadalupe Gutierrez, Cynthia Gutierrez, Mark Heater and Carolyn Lehmann sued the McBroom family to stop the construction of a BESS facility on the Mc-Broom’s property, which lies along Warda Church Rd.
The defendants, who include Pct. 1 Commissioner Jason McBroom along with his siblings and their spouses, had signed an option agreement with Staccato Storage LLC to possibly lease some of their property for the construction of a BESS facility. Last year, Staccato Storage petitioned the Fayette County Commissioners Court for a tax abatement, which the Court ultimately rejected. But the tax abatement application generated quite a bit of public attention.
The group FayCoSaysNo, which initially organized to oppose a wind energy project in southern Fayette County, hosted a town hall meeting in Warda last August. At that meeting, local property owners raised concerns about hazards related to lithium ion batteries, which are commonly used in BESS facilities. They discussed thermal runaway events, difficult-to-put-out fires and the possible release of toxic chemicals.
Court filings from the plaintiffs stated that they “... left the town hall meeting filled with apprehension and alarm about the BESS and its realistic potential to result in the scorching of Plaintiff’s neighboring properties.”
The FayCoSaysNo group had set up a legal defense fund with assistance from Flato- nia attorney Alex Hernandez. Hernandez filed suit on behalf of the plaintiffs against the McBrooms last November. Hernandez argued that the proposed BESS facility constitutes a nuisance to the plaintiffs’ enjoyment of their property. He based the argument, in part, on a Texas case from 1890 regarding a gunpowder storage site.
District Judge Jeff Steinhauser recused himself from the case. The Honorable Todd A. Blomerth, Senior Judge of the 421st Judicial District, was assigned to preside over the lawsuit.
In a court filing dated March 10, attorneys for the McBrooms, Greg Wehrer and Gregory Djordjevic, argued that the plaintiffs had no legal basis to sue because they had not suffered any actual harm.
“Plaintiffs are wrong, and their theory is belied by contemporary Texas law, which makes clear that Plaintiffs’ emotional reactions to the currently nonexistent BESS facility cannot be the basis for a cognizable nuisance claim,” the attorneys for the McBrooms argued. The defendants moved to dismiss the lawsuit. Judge Blomerth signed an order granting their motion to dismiss on April 18. He also ordered that the defendants were entitled to attorneys’ fees and costs in an amount to be determined.