Close to Home: Is immunity for PG&E a good idea?

There has been talk lately of efforts in Sacramento to limit the liability of utility companies when their agents or their equipment cause damage to others. The talk arises in the context of PG&E's ongoing lobbying campaign to convince the Legislature to enact laws shielding the utility from some or all of the consequences of the fires that it may in some way be responsible for causing.

Recently, The Press Democrat suggested that some form of relief from liability might be in order absent criminal violations or negligence, and that perhaps compensation to victims could be paid from a fund contributed to by public utilities and the state (“Assessing liability for October's fires,” Editorial, June 13) - in other words, cost spreading among consumers (to whom the at-fault or responsible utilities would pass on the bill) and the taxpayers, none of whom had anything to do with causing the harm.

Complete or partial immunity is advanced in the name of protecting a vital public service from supposedly ruinous lawsuits. It is the same interest invoked by railway companies and other corporate entities during the Gilded Age as workers and members of the public were cut down by runaway trains and burned by fires caused by exhaust and friction on the rails. Immunity is as unjust now as it was then.

California law is rooted in the common law. Our common law includes ancient maxims of justice that have been incorporated into our statutes: “One must use his own rights so as not to infringe upon the rights of another”; “No one can take advantage of his own wrong”; “No one should suffer by the act of another”; “For every wrong there is a remedy”; and, most significantly, “He who takes the benefit must bear the burden.”

Proposals to immunize PG&E from liability, especially from the powerful doctrine of inverse condemnation, violate each of these maxims. PG&E suggests that it be permitted to continue enjoying its monopolistic privileges without having to make whole those its past enjoyment may have harmed. It aims to use the fires it may have caused to justify eliminating traditional remedies for those it may have wronged.

And it seeks to permit the present and future suffering of others through its own acts and omissions and escape the burdens that come with the benefits its monopolistic charter bestows.

There are even more fundamental problems with the effort to immunize PG&E from fire-related liability. Inverse condemnation is no ordinary legal principle. It is derived from the power of eminent domain, which is permitted to the state and its agents so long as just compensation is paid to those against whom it is exercised. The power flows from the state's constitution, as does the compensatory mandate.

The immunity apparently contemplated by PG&E's lobbyists aims not merely to amend the common law and statutes but also to curtail rights and obligations set forth in the constitution itself. No mere legislative act can achieve such a result. Instead, the constitution must be amended by the people at large through a statewide vote.

PG&E's quest for relief from liability for the harm caused by the fires is likely motivated by corporate avarice rather than a broad-minded concern to balance legal remedies against the importance of preserving the vital services PG&E provides. If PG&E did wrong, it ought to suffer the consequences that any individual would suffer in similar circumstances. It ought not use its immense power and access to lawmakers to escape repercussions its victims were powerless to avoid. As they contemplate legislation to benefit PG&E at the injureds' expense, our legislators should keep this in mind.

Rex Grady is a lawyer and a professor of constitutional law and legal history at Empire College. He lives in Santa Rosa.

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