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Frustrated With PG&E Denial of Wildfire Charges, Judge Raises Possibility of Extending Probation

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A jet air tanker flies over smoky hillside and power lines during 2019 Kincade Fire.
A DC-10 air tanker flies over PG&E power lines en route to drop fire retardant during the October 2019 Kincade Fire in Sonoma County. Cal Fire investigators found that a PG&E transmission line started the blaze.  (Philip Pacheco/AFP via Getty Images)

With time running out on PG&E's five-year term of criminal probation in federal court, the judge overseeing the company's sentence says he's willing to consider extending the period of supervision if federal prosecutors ask him to do so.

The declaration from U.S. District Judge William Alsup came during a hearing Monday during which a PG&E attorney said the company denied allegations that it violated probation when its equipment ignited the October 2019 Kincade Fire in Sonoma County and the September 2020 Zogg Fire in Shasta and Tehama counties.

PG&E faces state criminal charges in both fires, including manslaughter for the deaths of four people who died in the Zogg blaze.

One condition of the utility's probation — part of the sentence imposed after a conviction growing out of the 2010 San Bruno gas pipeline disaster — is that it refrain from breaking any local, state or federal law.

Alsup expressed frustration that measures he had imposed during the five years of probation, which is due to end at midnight Jan. 25, have failed to end a years-long siege of PG&E-sparked wildfires or, in his view, to get the company to change its behavior.

"One of the things we hope for when we have criminals like PG&E that are on probation is that over the course of time they come to accept responsibility," Alsup said, addressing PG&E attorney Reid Schar. "In five years you've never done that. You've never accepted responsibility for any of these fires until it's convenient or you're up against the wall and have to plead guilty."

The judge was especially critical of Schar's contention that the company was denying the probation allegations because Shasta County investigators have not provided access to the remains of the tree that touched off the Zogg Fire.

"You know good and well you started the fire," Alsup said. "Yet you stand here and come up with good lawyer-like reasons why you can't accept responsibility."

He called the company's position "a very big disappointment to the court."

"Five years of my life, of your life, the public's life and the U.S. attorney's life down the drain because you won't accept responsibility," Alsup said. At another point in the hearing, he said he had been "a total failure in this job ... I would have thought that in five years I could have brought [PG&E] under control, but I have failed."

Schar pushed back, saying the company "fundamentally disagrees" with Alsup's statements and that it has learned important safety lessons during the probation. He also said it was unfair to ask PG&E to admit to criminal offenses "without being provided the full evidence."

Alsup told Assistant U.S. Attorney Noah Stern he would leave it up to federal prosecutors on how to proceed. One possibility is that prosecutors could come back to court for an evidentiary hearing that would seek to prove that PG&E violated probation by starting the Sonoma and Shasta County fires.

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Neither Stern nor PG&E attorney Schar sounded enthusiastic about the prospect of such a hearing, which would come with just half a month to go on the company's probation and only weeks before the scheduled start of a preliminary hearing on Sonoma County's 33-count criminal complaint arising from the Kincade Fire.

Another option that Alsup raised is that the U.S. Attorney's Office could make a motion to extend PG&E's probation. The judge has said several times in court and in written orders that he lacked authority to extend the term of court supervision beyond five years — the maximum prescribed in federal law.

Alsup has made those statements despite an April 2019 brief that prosecutors filed at his request. The filing said "it appears to be an open question" whether the court could impose a new term of probation that would stretch beyond five years. PG&E attorneys, whom Alsup also asked to weigh in, argued that federal law and court precedents bar the judge from extending the probation beyond five years.

The judge told Stern on Monday that if prosecutors make a motion to extend probation, he would give it "serious consideration." But he added: "I'm not saying I'd grant it. I'm just saying I didn't realize it was an open question."

Stern said prosecutors will file a status report with the court later this week outlining how they plan to proceed.

Speaking of the pending criminal cases in Shasta and Sonoma counties, Alsup urged prosecutors and judges in those jurisdictions "not to give up on probation" as part of a sentence if PG&E is found guilty or strikes some sort of plea agreement.

"PG&E needs to be under the probation of somebody," Alsup said. "PG&E should face probation, and some judge like me up in Shasta County or Sonoma County will be riding herd on them. That's what needs to happen if we're ever going to get PG&E under control."

The judge concluded with an appeal to reporters to pay close attention to the criminal proceedings in Sonoma and Shasta counties.

"Here's how this is going to play out," Alsup said. "PG&E will pay millions of dollars to these two counties and walk away as a convicted criminal, but it will not accept probation, and the counties will acquiesce in that. I ask the members of the press to watch that carefully and to hold the DAs accountable to putting this company on continued probation."

Alsup also heard briefly from Sonoma County resident Will Abrams, whose home was destroyed in the 2017 Tubbs Fire. Abrams, a party to several California Public Utilities Commission proceedings on PG&E's wildfire safety issues and to the company's bankruptcy case, has urged the judge to impose a series of new probation conditions.

Among other things, Abrams has asked Alsup to consider ordering major changes to the company's corporate and financial structure and require the company to adopt new safety accountability measures.

On Monday, Abrams told the judge he should also conduct a hearing to determine whether PG&E should pay restitution to wildfire victims who were part of the $13.5 billion settlement that allowed the company to exit bankruptcy in 2020. Half of that settlement figure is in PG&E stock. Abrams told the judge that restitution is due because fires the company has started since the settlement have depressed the stock's price, diminished the value of the settlement and harmed him and other wildfire victims.

"Every time they cause a fire, we suffer," Abrams said.

Alsup agreed with Abrams "that the victims have gotten a raw deal," but added he wasn't involved in the bankruptcy case and has no power to change its settlement terms.

He advised Abrams to talk to prosecutors "and see if you can convince the United States attorney to extend probation. I'm not saying I'd do it or not ... but if the United States attorney doesn't move for it, I'm not going to do it, period."

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