PG&E crews worked in early February to restore utility service in Paradise, mostly destroyed by last November's Camp Fire.  Josh Edelson/AFP-Getty Images
PG&E crews worked in early February to restore utility service in Paradise, mostly destroyed by last November's Camp Fire.  (Josh Edelson/AFP-Getty Images)

'Please Be Forthright': PG&E Faces Further Wildfire Scrutiny From S.F. Judge

'Please Be Forthright': PG&E Faces Further Wildfire Scrutiny From S.F. Judge

P

acific Gas & Electric Co. attorneys have been wrangling for years with dozens of lawyers for victims of Northern California wildfires. Those cases, playing out mostly in state courts in Sacramento and San Francisco, involve thousands of plaintiffs in hundreds of individual actions, all seeking compensation for losses suffered in fires that the utility is alleged to have played a role in starting.

For the most part, the lawsuits are proceeding out of public view -- with victims' lawyers amassing mountains of evidence from company records, from depositions with PG&E employees and from their own investigations.

For its part, the utility is fighting a case-by-case battle to limit its liability for disasters that stretch from the central Sierra foothills to the North Bay to Butte County.

But now, thanks to an unusual move in PG&E's criminal probation case in federal court, some of what wildfire victims' lawyers have learned during their litigation is getting a wider audience -- and the company is being required to respond Friday by a judge who cautioned it to be "forthright" in its answers.

The out-of-the-ordinary courtroom moment came Jan. 30, during a hearing called by U.S. District Court Judge William Alsup, who is overseeing PG&E's probation for its 2016 felony conviction for violating federal pipeline safety laws and obstructing a National Transportation Safety Board investigation into the deadly San Bruno pipeline blast in 2010.

Alsup ruled during the hearing that the company had violated the terms of its supervision in the case by failing to adequately notify probation officials that it was under criminal investigation for allegedly starting a 150-acre wildfire outside the town of Paradise in October 2017.

The judge was also considering what additional sanctions the company ought to face for that violation, and had proposed ordering the company to undertake a vast program of inspections, repairs, tree cutting and power shutoffs with a goal to "reduce to zero the number of wildfires caused by PG&E during the 2019 wildfire season."

I

n the middle of that hearing, Frank Pitre -- an attorney who successfully sued PG&E on behalf of San Bruno victims and who now represents many clients who suffered losses in Northern California 2017 and 2018 wildfires -- rose from his seat in the back of Alsup's courtroom.

Pitre asked whether he could approach the bench.

"I don't know who you are," Alsup responded.

Pitre identified himself, and Alsup not only heard him out, but invited him to address the court at length. In answer to the judge's questions, Pitre argued that PG&E should be pushed in the direction of one of the state's other large investor-owned utilities -- San Diego Gas & Electric Co. -- which has dramatically reduced the number of wildfires it starts.

SDG&E, which serves most of San Diego County and a sliver of Orange County, has done that through a program that has invested in weather forecasting and making its poles and lines less vulnerable to failure during high winds. The utility's effort also relies in large part on shutting down power to at-risk areas during times of hot, dry, windy weather.

Alsup quizzed Pitre about some of his assertions, particularly when the attorney claimed that SDG&E's equipment had not started a single fire since it began the proactive power shutdowns more than five years ago.

"Did I hear you right that since San Diego Gas & Electric has adopted this program, there have been no wildfires at all in San Diego?" Alsup asked.

"Not to my knowledge, your honor," Pitre said.

"You say 'not to your knowledge,' " Alsup said at one point. "How good is your knowledge -- that's what I'm trying to get at."

The upshot was that the judge ordered Pitre and two other plaintiffs' lawyers in the courtroom to file comments detailing their claims about PG&E's alleged wildfire safety deficiencies and potential remedies.

T

he result, filed Feb. 6, was an 18-page submission from Pitre and fellow attorney Steve Campora that argues:

  • That PG&E accepts a "high risk" of wildfires as part of the cost of doing business in Northern California. The submission quotes a company executive, in 2017 testimony prepared for a rate-setting proceeding before the California Public Utilities Commission, as saying, "With limited resources, PG&E cannot do everything and must decide at what point it is OK not to mitigate the (wildfire) risk further."
  • That PG&E equipment starts far more fires than Southern California Edison, which the lawyers argue is the most comparable California utility. The lawyers cite reports from the companies to the CPUC that showed PG&E equipment started a total of 1,552 wildfires between 2014 through 2017; CPUC data showed SCE's facilities had sparked 344 blazes. (About two-thirds of the fires recorded for both companies were one-quarter acre or smaller. About 70 PG&E fires burned 10 acres or more, with one consuming more than 5,000 acres; about 20 SCE blazes burned 10 acres or more, with two burning more than 5,000 acres).
  • That PG&E has failed to respond effectively to the threat posed by trees near its power lines -- a hazard the lawyers argue is borne out by the findings of the CPUC's Safety Enforcement Division, Cal Fire and PG&E's own reports. The company's failures, the lawyers argue, includes flawed inspections and employing vegetation management contractors who "are not sufficiently trained, experienced or knowledgable about their job responsibilities."
  • That in 2016, PG&E identified 6,000 "facility protect" trees -- defined as "dead, diseased, defective and dying trees" that posed a threat to power lines -- that had not been removed by mid-2017. The attorneys cite a June 2017 email from a PG&E vegetation program manager who raised concerns about the 6,000 trees. "We have been making an effort without much progress and now the fire season is upon us," the email said. The submission also cites an October 2017 email exchange concerning hazardous trees in the North Bay that were still in place five days before the outbreak of the fires that swept Napa, Sonoma, Mendocino and Lake counties.
  • That despite the apparent success of San Diego Gas & Electric's system of shutting down power during periods of extreme fire danger, PG&E resisted following suit, even though the CPUC had authorized utilities to develop similar plans.

A

lsup's response to the Pitre-Campora filing was to order PG&E to respond by noon Friday. But Alsup emphasized in his two-page directive that he's not interested in a generic response.

He directed the company to state whether it is in "full compliance" with Section 4293 of the California Natural Resources Code, which sets out the requirements for maintaining clearance between power lines and surrounding trees.

"If the answer is anything other than an unqualified yes, state all reasons for noncompliance," Alsup wrote.

The judge also told the utility to respond, point by point, to every assertion the attorneys made in the first 15 pages of their filing -- "specifically admitting, denying, or clarifying for accuracy each and every statement."

He told the company how he wanted its answers formatted -- "please quote each paragraph (single-spaced and indented)." He added one unusual instruction: "Please be forthright."

Alsup has not yet scheduled a date for issuing a ruling on PG&E's further conditions of probation, including what wildfire safety measures he will order the company to implement.

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