PG&E may try to shift liability for North Bay wildfires to governments

As Pacific Gas & Electric Co. braces for the possibility that its power lines will be named by investigators as the cause of the North Bay wildfires, the utility’s legal strategy appears to involve trying to spread the blame for billions of dollars in fire losses on local governments.

The San Francisco utility company has filed claims with Sonoma County, the city of Santa Rosa and other agencies saying that if PG&E is found liable for the fires, then those governments may share responsibility because of the “inadequacy” of the local fire response and preparations.

The company says filing the claims was merely a way to preserve its rights, and not an indication that it will actually point the finger at firefighters, urban planners and water managers for failing to stop the wildfires, which killed 24 people and destroyed nearly 5,300 homes in Sonoma County.

Nevertheless, the filings raise the prospect the investor-owned utility will do just that if boxed into a legal corner.

“From a legal perspective, what their claim says is ‘if we are held liable, you share in some of that liability,’?” Santa Rosa City Attorney Sue Gallagher said.

The claim was filed in Santa Rosa in April, but got its first airing in closed session before the City Council this week. Sonoma County has already filed a lawsuit against PG&E for damages related to the fires, and the city, which has hired the same law firm, is preparing to follow suit, Gallagher said.

In its claim, PG&E asserts that the city may share liability for the fire damages for several reasons, including the “inadequacy” of its “urban planning and property development approvals.”

The company also points to “water, emergency preparedness and other infrastructure for which Santa Rosa is responsible,” as well as the failure to enforce “laws and ordinances related to vegetation” to reduce fuel loads, and the general “fire and emergency response during the fires.”

According to a source who works with PG&E executives and is familiar with the company’s thinking, the planning piece stems from questions raised about the wisdom of allowing so many homes to be built in fire-prone areas such as Fountaingrove.

The inadequacy claim about the water infrastructure relates to information that water pumps failed during the fire, according to the source, who is not authorized to speak for PG&E and requested anonymity.

And there is also ample evidence in the public record that public agencies in Sonoma County have at times opposed efforts by PG&E to trim vegetation from high-voltage power lines in the county, the source indicated.

Gallagher called the claims “completely baseless.” In addition to being untrue, the claims have no legal merit because public agencies are immune from such liability claims when they act in good faith to serve the public, she said.

“Not only from the factual basis, but also from a legal perspective, the claim is without factual basis and it has no legal grounding,” Gallagher said.

Nevertheless, the claims are “not a bluff” and she expects the company to aggressively attempt to shift the liability to government agencies throughout the litigation, which she said will be complex and lengthy.

Santa Rosa Fire Chief Tony Gossner called the move by PG&E “just lawyers being lawyers.”

“It stings to think that anybody is going to place blame on anybody for that night,” Gossner said. “It was a rough night for everybody and everybody did the best they could that night.”

CalFire investigators last month found PG&E at fault in three of four smaller fires it investigated in Butte and Nevada counties last fall. The agency concluded that PG&E violated state code requiring utilities to maintain adequate clearance between power lines and vegetation.

The results of the investigations into the larger North Bay fires, such as Tubbs, Nuns and Atlas fires, are expected soon.

Patrick McNicholas, one of a group of attorneys who represent 1,500 fire victims, said there is an “overwhelming amount of evidence” the fires originated from PG&E’s equipment.

Arguing that governments failed to do enough to limit the damage from the fires is going to be “a very tough row for them to hoe,” in part because the company would have to make a direct connection between an individual’s loss and an alleged shortcoming in the government preparations or response, he said.

The approach also contradicts other legal arguments the company has made that hurricane-force winds that caused tree limbs to crash into power lines were beyond their experience, he said.

“For them to say ‘oh we couldn’t have planned for this because it wasn’t a predictable event,’ then to say ‘the government agencies needed to do a better job of planning for this event’ seems disingenuous and contradictory,” McNicholas said.

PG&E spokeswoman Deanna Contreras said no decisions have been made about what claims PG&E may pursue.

“We expect that any findings of liability related to these fires will be determined by a court of law,” she said in a statement.

“Based on the information we have so far, we believe our overall programs met our state’s high standards.”

She added that the utility should not be liable for damages if it followed established inspection and safety rules, calling it a “flawed legal doctrine” that would harm ratepayers and the state.

You can reach Staff Writer Kevin McCallum at 707-521-5207 or kevin.mccallum@pressdemocrat.com. On Twitter @srcitybeat.