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Judge: Probation didn’t reform PG&E

With just over three weeks left in its probation term, a federal judge said he would consider a legally dubious request to extend utility giant PG&E's probation beyond the five-year maximum allowed under federal law.

SAN FRANCISCO (CN) — A federal judge on Monday called himself “a total failure” for not achieving his goal of reining in Pacific Gas and Electric’s criminal behavior as its five-year probation term comes to an end.

“PG&E has learned nothing in this process, is killing people every year with wildfires,” Senior U.S. District Judge William Alsup said in court Monday. “I would have thought in five years that I could have brought it under control.”

PG&E’s five-year probation term for convictions related to the deadly 2010 San Bruno gas pipeline explosion will expire Jan. 25.

At a hearing into potential probation violations Monday, Alsup upbraided PG&E for refusing to admit it started two destructive wildfires in 2019 and 2020. The judge said even though its probation term will soon end, the company should remain under strict supervision.

“One of the things we hope for when we have a criminal like PG&E on probation is that they come to accept responsibility,” Alsup said. “In five years you’ve never done that. You’ve never accepted responsibility for any of these fires until it’s convenient to do so.”

PG&E was presented with charges that it violated its probation by breaking state laws when its equipment sparked the Kincade Fire in Sonoma County in 2019 and the Zogg Fire in Shasta County in 2020. The company faces multiple charges in two criminal cases filed in each county.

When a PG&E lawyer denied the company had violated its probation terms, Alsup grew indignant.  

“You’ve had plenty of time to investigate the Zogg Fire,” Alsup said. “You know good and well you started that fire.”

The Zogg Fire burned 56,000 acres over 16 days, destroyed 204 structures and killed four people, including a mother and her 8-year-old daughter. Cal Fire determined the fire started on Sept. 27, 2020, when when a gray pine tree fell on a PG&E distribution line. PG&E has acknowledged that a gray pine tree in the same location where the fire started was flagged for removal in 2018 but never removed.

“You have enough evidence to know that tree caused the Zogg Fire,” Alsup said. “You should have cut it down, and you let it slide.”

PG&E attorney Reid Schar told the judge he should allow both cases to play out in state court, where the company is fighting to obtain evidence to help defend itself against the charges.

PG&E also faces charges of having broken state laws when its equipment sparked the Kincade Fire, which burned more than 77,000 acres and destroyed 374 buildings over two weeks in the fall of 2019. A worn jumper cable installed in 1973 failed and snapped off a transmission tower, sparking that fire according to fire investigators.

When Alsup lamented that the last five years of probation has gone “down the drain,” Assistant U.S. Attorney Noah Stern disagreed. He cited a federal monitor’s report that found PG&E substantially improved its gas safety operations and has made strides in wildfire safety, even though it has a lot more work to do.

“Total waste is an overstatement by me, but the amount of progress we have made is not something to congratulate ourselves over when fires of the size of the fire up in Butte County and Plumas County continue,” Alsup said, referring to the 963,000-acre Dixie Fire, believed to have been caused by PG&E equipment this past July.

Alsup also urged prosecutors in Sonoma and Shasta counties not to strike plea deals with PG&E that would allow the utility to avoid future probation terms.

Judge Alsup suggested that’s what happened in Butte County in 2020 when PG&E pleaded guilty to 84 counts of manslaughter for causing the 2018 Camp Fire. The company paid $19 million in fines and compensation but dodged probation.

“I beg those prosecutors and judges not to give up on probation like they did in Butte County,” Alsup said. “PG&E needs to be under probation of somebody.”

Butte County District Attorney Mike Ramsey, who negotiated the 2020 plea deal with PG&E, did not immediately return a phone call requesting comment Monday.

Although the law is unclear on whether a federal defendant’s criminal probation can be extended beyond the five-year maximum, Alsup said he would give it “serious consideration” if the U.S. Attorney files a motion to add more time to PG&E’s probation term.

Stern said he will file a status update with the court within the next few days.

In an emailed statement after the hearing, PG&E spokesman James Noonan said the company has welcomed the feedback of the court, federal monitor and others throughout its five-year probation period.

"PG&E has become a fundamentally safer company over the course of our probation, and we know we have more work to do in upholding our stands that everyone and everything is always safe and that catastrophic wildfires shall stop," Noonan said. "We are committed to doing that work, now and in the years ahead, despite the difficult climate conditions faced by our state."

As part of a 2020 deal with state regulators that allowed PG&E to emerge from bankruptcy, an independent safety monitor is set to take over the role of the federal monitor when PG&E's criminal probation term ends later this month.

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