Imposing the proposed probation terms would give PG&E a “get-out-of-jail-free” card to use in civil lawsuits and criminal prosecutions, a federal judge said.
SAN FRANCISCO (CN) — A federal judge will not make Pacific Gas and Electric alter its fire-prevention power-shutoff program in a way that would expand blackouts, citing opposition from California regulators, but he strongly recommended PG&E adopt those changes anyway.
U.S. District Judge William Alsup had proposed making the company consider all trees capable of striking powerlines when it decides where to cut power during windstorms in areas of high fire danger. In response PG&E offered to consider the top 30% of trees most likely to strike its powerlines. Recent estimates predict adding that criteria would have increased the number of hours PG&E customers went without power by 29% in 2019 and by 21% in 2020.
At a hearing last month, a PG&E lawyer told Alsup the company “believes this is the right approach” and supports altering its power-shutoff program in time for the 2021 wildfire season, which typically starts in June.
But the California Public Utilities Commission (CPUC) and the Governor’s Office of Emergency Services strongly opposed the proposal. They said power shutoffs should be a last resort and that wildfire risk must be measured against risks associated with outages, such as disruptions to emergency communications and the loss of electricity to power medical devices.
“How did these agencies acquire this fear of marked increase in [public safety power shutoff] events,” Alsup asked in his order. “Earlier in March, we now know, PG&E handed these agencies an internal ‘study’ that seemed to indicate a large number of additional PSPS events would flow from the strike-tree proposal.”
That study estimated that power blackouts would have increased 55% over a 10-year period from 2010 to 2020 had PG&E implemented the judge’s proposal. However, PG&E did not have a power-shutoff program in place before 2018 so the figure was purely hypothetical.
Alsup ordered PG&E to submit new estimates showing a “real-life comparison” of how the proposed conditions would have affected power shutoffs in 2019 and 2020. The new studies estimated the number of power blackouts would have decreased from 8 to 5 in 2019 and stayed the same in 2020. The study also predicted six power shutoffs that occurred in 2020 would have been larger in scope and affected 12% more customers.
In an earlier proposal, Alsup also suggested that PG&E consider all trees flagged for removal but not yet removed near its power lines. PG&E argued that would substantially expand the number of blackouts for its customers. The company offered a compromise, saying it would instead factor in trees flagged as “Priority 1” and “Priority 2” hazards.
Recent estimates submitted to the court show factoring in those higher-priority hazards would have had a marginal impact on reducing fire risk in 2019 and 2020.
“It now seems obvious that PG&E used some sleight-of-hand to promote the incorrect impression that the additional criteria –– Priority 1 and 2 tags plus strike tree rankings –– would make a substantial difference in public safety,” Alsup wrote in his 10-page ruling.
PG&E has since acknowledged factoring in high-priority tree hazards would have little effect on power shutoffs because the company plans to clear those hazards before it decides whether to cut power.
Alsup said he would not impose the the proposed probation terms on PG&E because it would likely give the company a “get-out-of-jail-free” card to use in civil lawsuits and criminal prosecution for fires started by its equipment.
“It would smile and say, ‘We did what the judge and the CPUC said to do and they said that considering the sliver of information would count as considering all information,’” Alsup wrote.
Another reason Alsup cited for not imposing stricter probation terms was the fact that CPUC and the Office of Emergency Services opposed the plan.
“Out of deference to these authorities, the court will simply state its recommendation but not impose any version of the conditions,” Alsup wrote.
The judge ordered PG&E to inform the court by July 1 whether or not it implemented his recommendations. Alsup further directed the company to report within 28 days after each fire-prevention power shutoff how many trees or limbs hit its powerlines and equipment.
Additionally, the judge issued a separate order Thursday clarifying that PG&E is required to clear all trees and limbs around its power lines regardless of whether the tree is healthy, as required by interpretations of state law provided by the CPUC and California Department of Forestry and Fire Protection.
In an emailed statement, PG&E said it considers safety its most important responsibility and that it is focused on preventing wildfires. The company also said it is reviewing the court’s decision.
“We disagree with certain of the court’s characterization of our actions, but we share the aim of advancing public safety, and we will continue working with the court and all stakeholders to advance this shared objective,” PG&E spokesman James Noonan said.
In proposing new criteria for power-shutoff decisions, Alsup said he was looking to impose a condition that would have prevented the deadly Zogg Fire by ensuring the power would have been turned off at that time. The Zogg Fire killed four people and burned more than 56,000 acres in Shasta County this past September — a blaze Cal Fire found was caused by a gray pine tree that hit PG&E’s power lines. PG&E previously reported that tree may have been flagged for removal in 2018 but never taken down.
PG&E also faces 33 criminal charges for failing to maintain a jumper cable that broke in October 2019 and allegedly sparked the Kincade Fire, which burned about 77,000 acres, razed 174 buildings and prompted the evacuation of 200,000 residents.
PG&E is scheduled to appear in federal court on Tuesday to discuss whether those criminal charges constitute a violation of its federal criminal probation.
The company is on probation for felony convictions related to the 2010 San Bruno gas pipeline explosion, which killed eight people, injured 58 and destroyed 38 homes. Its five-year probation term expires in January 2022.