Warda Battery Storage Saga Still Playing Out in Court

The fight over a battery electric storage system (BESS) in Warda could be headed back to district court in Fayette County.

A group of landowners near property owned by the McBroom family in Warda sued the McBrooms last February to stop the development of a BESS facility on their property. The plaintiffs Jim Clements, Guadalupe Gutierrez, Cynthia Gutierrez, Mark Heater and Carolyn Lehmann, alleged that the facility poses a public nuisance. The lawsuit cited concerns about fires or explosions involving lithium batteries, which are notoriously difficult to put out.

The plaintiffs sought temporary and permanent injunctions to stop the McBrooms from leasing their land to Staccato Storage LLC, the company that wants to build a 200 megawatt BESS facility on the property.

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.

Attorneys for the defendants argued that the plaintiffs had no legal basis to sue because they had not suffered any actual harm. Following a hearing last April, Judge Blomerth dismissed the suit in district court.

Four of the five original plaintiffs, Jim Clements, Guadalupe Gutierrez, Cynthia Gutierrez, and Carolyn Lehmann, filed an appeal on May 15 of last year.

The attorney for the plaintiffs, Alex Hernandez, argued that the McBrooms “have breached their duty of care, owed to Plaintiffs, by leasing Defendants’ land for BESS installation without first requiring that adequate safeguards be implemented.”

“A reasonable landowner in Fayette County would not authorize a high-risk industrial project without ensuring that its neighboring residents have protection from foreseeable risks, such as thermal runaway fires and environmental contamination,” one of the plaintiff’s filings stated.

Justices of the Third Court of Appeals ruled that trial court erred by ruling there was no “imminent harm” to the plaintiffs.

“(...) we conclude that Landowners have sufficiently alleged facts that, if proven, would support their request for injunctive relief to redress a prospective nuisance that plausibly will be caused by the McBrooms’ and Staccato’s imminent actions that will likely cause irreparable harm for which they would have no adequate remedy at law,” stated the opinion issued by the Third Court of Appeals.

The appeals court reversed the trial’s court’s judgement in dismissing the lawsuit in favor of the defendants. It also reversed the trial court’s decision to award attorneys’fees to the McBrooms. The appellate opinion was filed April 9. The defendants have 45 days from that date to petition the Texas Supreme Court for an appeal. If they don’t, or if the Supreme Court rules in the plaintiffs’favor, then the case will return to Fayette County District Court for further proceedings.