Commissioners file petition to intervene in lawsuit after safety, water concerns

Gillespie County filed a petition for intervention in 216th Judicial District Court last Tuesday, Nov. 25 seeking to join ongoing litigation aimed at stopping construction of a proposed battery energy storage system (BESS) facility in Harper.

The county’s action seeks a declaratory and injunctive relief to protect public safety, water resources and the welfare of approximately 600 schoolchildren attending the Harper Independent School District, located 1,700 feet from the proposed site, County Judge Daniel Jones stated in a news release.

“As County Judge, I have a fundamental obligation to protect the health, safety and welfare of Gillespie County residents, particularly our most vulnerable residents — our children,” Jones said. “The risks posed by this facility to the students at the HISD campus are simply unacceptable. Our emergency response capabilities are insufficient to protect these children in the event of a battery fire, which can burn for weeks, reach temperatures exceeding 2,000 degrees and release toxic gasses.”

The lawsuit, Victor Hollender, et al. v. Rogers Draw Energy Storage, LLC, et al., is pending in the 216th Judicial District Court. The petition seeks both temporary and permanent injunctions to prevent construction of the facility and to ensure public safety.

The county’s filing follows a unanimous resolution adopted earlier this year by the Gillespie County Commissioners Court opposing the placement of battery energy storage facilities within the county.

County action

At the Nov. 25 meeting, praise was quick from Harper-area residents who were critical the county had not done more when the facility was announced.

Esther Schneider thanked the court for hiring outside legal counsel.

“We’re excited, encouraged and appreciative that you’re willing to address this fight,” said Schneider, who has filed to run for county judge.

Scott Strange said the county has the authority to issue a stop order on the project. The county took up the issue in executive session.

Strange said those who have heard of health threats and seen photos of injured persons exposed to chemical burns wouldn’t want these facilities “within 200 miles of Texas, much less Gillespie County.”

Jones told the crowd he had held multiple meetings with County Attorney Sarah Neel about the county’s options.

Strange cited an organization, Fight BESS Texas, began a Facebook page and a website, fightbesstexas. org, which has additional information and more information on contacting legislators.

Jay Choquette said over $100,000 has been raised to help the county fight both the Harper and Marshall Springs projects.

“Thank you for stepping up to do the right thing,” he said.

Susan Rohbock lives near a similar solar and BESS facility announced for just five miles north of Fredericksburg. She cited health dangers and the Moss Landing BESS fire in California, which she said had a toxic plume which stretched 27 miles.

She said a fire incident could cause mass casualties and the toxicity levels could result in long-term treatment. She showed photos of burn victims who had fought the fire in a similar situation.

State law limits what counties may do to stop development, though Gillespie County is exploring its options.

Legislation

State Rep. Ellen Troxclair introduced four bills in the last legislative session, which all died in committee before reaching a floor vote. The governor’s office has been largely silent on the issue.

The county’s petition details serious public safety risks that exceed the capabilities of local emergency response systems and warrant immediate judicial intervention. The petition cites multiple critical concerns, including:

• The proposed facility is located within approximately 1,700 feet of Harper ISD’s only campus, which serves children ranging from pre-k through 12th grade.

• Lithium-ion battery fire events have been documented in other jurisdictions to burn for extended periods, release hazardous gases and require specialized fire suppression resources not available in the county.

• The proximity of the proposed facility raises serious questions about the ability to safely evacuate approximately 600 students and staff within the limited timeframe available during a thermal runaway fire incident.

• Fire suppression runoff could contaminate the Pedernales River watershed, which supplies water to multiple counties and ultimately flows into Lake Travis, a primary water source for the Austin region.

Gillespie County remains committed to responsible development that does not compromise the safety of its citizens, first responders, or essential water resources, Jones said.

The judge added that the Rogers Draw project in Harper will be given priority due to the timetable. Action on the Marshall Springs project will state that the county will order that no development activity — including even vegetative clearing — can commence until permit issues are cleared related to the flood plain and drainage issues.