PD Editorial: Assessing liability for October’s fires

Cal Fire's investigative reports are confirming suspicions that power lines owned by PG&E started most of October's wildfires.

Given the mix of warm, gusty winds and an abundance of dry fuel, that's not a big surprise.

Look beyond the headline, and you see that Cal Fire's conclusions are nuanced. Investigators separate the fires into two categories: those where they found evidence that state laws were violated, and those where there is no indication that any rules were broken.

Because of a legal standard known as inverse condemnation, that distinction may not matter in the civil lawsuits filed against PG&E by property owners, insurers and local governments, including Sonoma County.

The issue of negligence should, however, inform legislative debates about liability for future wildfires.

So far, Cal Fire has issued findings on 16 wildfires that burned across Northern California in October, destroying thousands of homes and killing more than 40 people.

Investigators linked all 16 fires to PG&E - power lines falling into vegetation or trees or limbs making contact with power lines. In 11 instances, investigators say they found evidence of legal violations, such as a failure to clear brush or properly maintain equipment. Those reports have been submitted to local district attorneys for possible prosecution.

Five other fires started despite proper brush clearance and equipment maintenance.

(Cal Fire has yet to report on the largest and most destructive fire, the Tubbs fire, which raced from Calistoga to Santa Rosa, leveling entire neighborhoods in its path.)

PG&E could face billions of dollars in civil damages and fines from the state Public Utilities Commission on top of post-fire repair and service restoration costs exceeding $250 million.

Along with California's other investor-owned utilities, PG&E is lobbying in Sacramento for relief, potentially including permission to raise rates to cover civil damages.

If a utility is convicted of a criminal violation - and PG&E has yet to be charged in connection with any of October's fires - it would be difficult to justify passing costs onto ratepayers.

But what about wildfires where there isn't a criminal violation, or any finding of negligence on the part of PG&E or another utility?

It seems to us that there is room for discussion.

Under the present rules, utilities can be held liable for fires tied to their equipment, even if they were in compliance with safety regulations. And requests to pass some or all of those costs on to customers have been denied by the Public Utilities Commission.

One result is a race to the courthouse after major wildfires. PG&E is the defendant in more than 100 lawsuits relating to October's wildfires, and, to try to limit its exposure, the company has started to pursue its own legal claims, including one alleging that Sonoma County was unprepared to fight a major fire.

Litigation is an expensive and time-consuming approach, especially considering the large number of underinsured victims still trying to figure out how to rebuild.

A bill by state Sen. Bill Dodd, D-Napa, would offer relief from liability to utilities that complete an approved safety, reliability and resiliency plan and update it annually.

Protection still would be needed for people who suffer losses in utility-related wildfires that aren't caused by negligence. One alternative under discussion, according to Bloomberg News, is a compensation fund backed by utilities and the state. It's a promising concept, similar to the state's earthquake insurance program.

But, as is too often the case, most of the conversations are taking place behind closed doors. It's time to invite the public into the discussion.

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