Understanding Wildfire Litigation

1. UNDERSTANDING WILDFIRE
LITIGATION
Lawrence Kahn & Charles Lally
Trees & Utilities National Conference
Sep. 21, 2022

2. TRENDS IN WILDFIRE FREQUENCY &
SEVERITY
• Total annual number of wildfires is
stable or slightly decreasing, but burned
acreage is rapidly increasing.
• The largest wildfires are responsible for
a proportionately greater percentage of
burned acreage.
• New research has demonstrated that
drought and aridity have an exponential
influence on wildfire spread.
• The current Southwestern
Megadrought is unprecedented in at
least the last 1,200 years.
• 33% chance that drought conditions
will persist until 2030. National Drought Mitigation Center (2022) Drought Intensity Map

3. UVM WILDFIRE OVERVIEW
• 89% of all wildfires in the United States
are caused by human activity.
• Between 4-12% of US wildfires are
sparked by power lines.
• Powerlines become competent ignition
sources most often through tree-to-
powerline contact, and less often
through animal activity and contact
with the ground.
• Weather, fuel, and topography direct
the spread of wildfires once they are
ignited.
Blake, M. (2014) The Cocos Fire Burns in San Marcos, California. The Atlantic

4. POTENTIAL PARTIES TO A UTILITY
WILDFIRE LAWSUIT
• Private, Public, and
Commercial Property
Owners (Individually or as a
Class).
• Property Owners’ Insurance
Companies.
• Public- and Investor-Owner
Utilities.
• Utility Vegetation
Management Contractors.
• Local, State, and Federal
Agencies.

5. CAUSES OF ACTION I: CIVIL
• Plaintiffs have access to a wide variety
of common-law remedies against
utilities in the wake of a wildfire.
• Negligence
• Trespass by Fire
• Nuisance
• Inverse Condemnation
• Based on federal and state takings
clauses
• 18 state constitutions create rights
of action for takings
• 27 state constitutions create rights
of action for takings or damage.
• Recovery on a strict liability basis
Beldem, A. (2017) Santa Rosa, CA, Houses Destroyed in the 2017 Tubbs Fire. Sierra Club

6. CAUSES OF ACTION II: STATUTORY AND
REGULATORY VIOLATIONS
• California Public Resource Code
• CAL. PUB. RES. CODE § 4435
• Prima facie evidence of negligence
• California Health and Safety Code
• CAL. HEALTH & SAFETY CODE § 13007
• Liability for fire damages
• CAL. HEALTH & SAFETY CODE § 13008
• Liability for fire spread
• CAL. HEALTH & SAFETY CODE § 13009-
9.1
• Private and public cost recovery
• Code of Federal Regulations
• 36 C.F.R. § 261(10)
• Easement violations
Wildfire Today (2016) Rey Fire perimeter on Aug. 21st and 23rd, 2016.

7. CAUSES OF ACTION III: CRIMINAL
• Investor-owner utilities are being
held criminally liable for sparking
wildfires.
• In 2020, PG&E plead guilty to 84
counts of involuntary manslaughter
for sparking the 2018 Camp Fire
• $3.5 million fine
• PG&E is facing a wide variety of
felony and misdemeanor charges for
sparking the 2020 Zogg Fire.
• Felony charges include:
• Involuntary Manslaughter
• Arson
• Air Pollution
CAL FIRE (2020) Zogg Fire Perimeter

8. DEFENSIVE STRATEGIES
• Factual Demonstrations
• Problem trees may lie outside the
utility right-of-way, or outside the area
of responsibility of a contractor.
• Defeating Class Certification
• Heavily fact-dependent decision:
• It may be less expensive to settle
with plaintiffs as a class.
• Indemnification
• Utilities and their contractors may be
able to seek indemnification for
wildfire damages.
• Express basis in contract, or equitable
implied indemnity.
KGMI Bellingham (2019) A powerline arcs, igniting a problem tree.

9. ULTIMATE ALLOCATION OF DAMAGES
• Potential liability for all parties will equal
damages to property, criminal penalties,
and wildfire suppression costs.
• Any participant can end up shouldering a
portion of the burden.
• Ratepayers are ultimately responsible for
insurance premiums.
• Publicly-owned utilities can pass on
excess costs to ratepayers.
• In California, investor-owned utilities
need to meet the “prudent manager”
standard to pass on costs.
Wildfire Today (2020) Estimated value of structure losses, CA, 1979-2018

10. EMPOWERED PUBLIC UTILITIES
• California Public Utilities Commission
makes a determination on the “prudent
manager” standard.
• Elements of a settlement before the
CPUC:
• Damages
• Factual Stipulations
• Policy Changes
• PG&E exposed to $1.65 billion liability
for 2017 and 2018 fire seasons, $125
million liability for Kincade Fire.
Sonoma County (2019) Kincade Fire Perimeter & Fire Evacuation Area Map