Sonoma County prosecutors lay out evidence against PG&E over the Kincade fire. What’s at stake?

Beginning this week, a Santa Rosa courtroom will become the next battleground for prosecutors who hope to prove that the 2019 Kincade fire, sparked by Pacific Gas and Electric Co. power lines, was a criminal act by the giant utility.

Sonoma County prosecutors are pursuing 30 felony and misdemeanor charges against California’s investor-owned electrical utility for its role in the fire, which scorched more than 77,000 acres, displaced nearly 200,000 people and destroyed 174 homes.

A preliminary hearing in the case begins Tuesday and is expected to last as long as 15 days, during which prosecutors must prove to Sonoma County Superior Court Judge Mark Urioste that they have enough evidence to support the charges and allow a trial to move forward.

PG&E has denied criminal culpability but has accepted a finding from CAL FIRE that its line sparked the flames. The utility looks “forward to our day in court,” a company statement Friday read.

The case pits Sonoma County District Attorney Jill Ravitch’s office, with a current annual budget of $33 million, against a publicly traded company with a market value of $27 billion and nearly $100 billion in assets.

Ravitch has indicted the corporation itself, meaning no individual will go to prison if prosecutors secure convictions.

Instead, the prosecution is an attempt to label the company as not just negligent in actions that sparked a major wildfire, but criminally so.

“For Sonoma County this is not about the money,” said Catherine Sandoval, a law professor at Santa Clara University, and a former commissioner on the California Public Utilities Commission, which regulates the utility, the nation’s largest electricity provider.

In May, PG&E paid $31 million to Sonoma County and the cities of Santa Rosa, Windsor, Cloverdale and Healdsburg for government damage. In public filings, it has disclosed estimated liabilities as high as $800 million from the fire.

If Ravitch’s office is successful, any fines the utility may pay would likely be far less than the estimated liability, Sandoval said.

“This is about accountability for reckless behavior,” she said.

Last month, a federal judge released the utility from a five year probation following criminal convictions over a 2010 gas pipeline explosion in San Bruno.

PG&E reform advocates criticized the decision, arguing it robbed the public of a key cudgel for holding the utility accountable over wildfires.

But federal prosecutors pointed to prosecutions like Ravitch’s as the next step when they chose not to pursue a probation extension.

Among the charges are environmental crimes that have never been prosecuted against the utility for its role in sparking a mega wildfire. Urioste likely scheduled the unusually long preliminary hearing to consider such novel legal questions, according to legal observers.

The Kincade fire, which grew to 77,758 acres, raged for two weeks and triggered the largest mass evacuation in county history at more than 190,000 people. Flames threatened Geyserville, Healdsburg, Windsor and northeast Santa Rosa. The blaze destroyed 174 homes and a total of 370 structures, including winery and farm buildings.

Prosecutors initially brought five felony charges and 28 misdemeanor counts against the utility. Those charges ranged from felonies for “wildfire smoke and related particulate matter and ash” that resulted in lung damage to two minors. The 23 misdemeanor counts were for health violations over poor air quality.

In an amended complaint filed ahead of Tuesday’s hearing, prosecutors shifted the charges from five felonies to eight, while decreasing the total number of charges against the company from 33 to 30.

The felonies include three counts of recklessly and unlawfully starting a fire that caused “great bodily injury“ to six firefighters and burned structures and forested land. Five additional alleged felonies are violations of air pollution laws. PG&E is charged with emitting contaminants in the form of wildfire smoke and ash that damaged public health and specifically caused great bodily injury to both a minor and adults.

An October 2021 report from the utilities commission’s enforcement division found that PG&E left a high-voltage transmission tower energized for over a decade after it should have been shut off and removed. “PG&E left abandoned equipment energized for thirteen years even though that equipment provided no benefit or convenience to the public,” the report concluded.

PG&E failed to properly maintain the line even after other fire starts and its own internal rules indicated operators should have known to do so, the report concluded. In addition, jumper cables were left unsecured and deteriorating over time. The fire began when one of the cables broke and arced against the tower during extreme winds, sending sparks raining down on parched vegetation below.

PG&E paid $125 million to the state after the report, though the utility disputes its findings. “We believe the settlement will assist in allowing all parties to move forward from the fire, and permit us to focus on compensating victims and making our energy system safer,” PG&E spokesperson James Noonan wrote at the time.

Ravitch, declined an interview for this story.

“The outcome we seek is one that holds the corporation accountable, includes restitution to victims, as well as any oversight we can achieve to ensure the safety of the community going forward,” she told The Press Democrat last month.

The ability of prosecutors to use a conviction to force change out of PG&E may be limited, said Sandoval, the legal expert.

If convicted, PG&E is “highly likely to just pay the fine,” she said, rather than accept another probation in which a judge could dictate terms.

In June 2020, PG&E accepted a plea deal in Butte County in a prosecution over the Camp fire, which killed 84 people and destroyed the town of Paradise. The utility paid $3.5 million.

Still, another criminal conviction against PG&E could sway regulators and investors who have control over the company’s actions, Sandoval argued.

PG&E continues to pledge that it will harden its electrical grid against wildfires on its own.

“We are focused every day on making our system safer and pursuing our stand that catastrophic wildfires shall stop. We are committed to doing that work, now and in the years ahead,” Noonan wrote.

Many in the legal and advocacy community have little faith in the utility, however.

PG&E faces a federal probe for its role in the 2021 Dixie fire, which became the second largest in state history.

The company faces another criminal prosecution in Shasta County over the deadly Zoggs fire.

The Kincade fire proceeding follows last month’s order from a federal judge in San Francisco to release the investor-owned utility from a five-year federal probation stemming from the deadly 2010 San Bruno gas pipeline explosion. Advocates and legal observers decried that decision as the loss of an effective tool for forcing transparency and action from PG&E over its electrical grid’s role in wildfires whose impacts are greatly enhanced by climate change.

“While on probation, PG&E has been blamed for at least 31 wildfires. Those fires burned nearly one and one-half million acres, burned 23,956 structures, and killed 113 Californians,” Northern California District Court Judge William Alsup wrote in a Jan. 19 order.

But Alsup said he did not believe he had legal authority to keep the company on probation, particularly after federal prosecutors did not pursue an extension.

“In these five years, PG&E has gone on a crime spree and will emerge from probation as a continuing menace to California,” Alsup wrote.

In response, Noonan wrote that the utility has welcomed the judge’s feedback “throughout the probation.”

“We acknowledge that we have more work to do,” Noonan wrote. “In our past filings, we emphasized that PG&E’s new leadership team is intensely focused on creating a climate at PG&E where everyone and everything is always safe.”

In a Jan. 6 filing explaining the decision not to seek an extension of PG&E’s probation, U.S. Attorney Stephanie Hinds pointed to Ravitch’s prosecution of the utility, as well as the case unfolding in Shasta County over the Zoggs fire, as the next possible avenues for holding the utility accountable over wildfires.

“At this juncture, it appears that the state courts are the proper forum for further development of the evidence,” Hinds wrote. “Furthermore, if PG&E is convicted, a broader array of sentencing options will be available in that forum.”

UPDATE: This story has been updated to reflected amended charges filed by Sonoma County prosecutors that increased the number of felonies from five to eight.

You can reach Staff Writer Andrew Graham at 707-526-8667 or andrew.graham@pressdemocrat.com. On Twitter @AndrewGraham88