Bill on wildfire prevention work could give utilities immunity from lawsuits

Yahoo

27-02-2025

Sam Drevo walks by the burned foundation of his mother's home in Gates following the 2020 Labor Day fires. (Photo courtesy of Tyler Westfall)
A bill that would establish minimum wildfire prevention standards for electric utilities in exchange for an annual certificate from the Oregon Public Utility Commission would give them immunity from being held accountable in lawsuits, lawyers say.
If passed, House Bill 3666 would give utilities a state-sanctioned defense against lawsuits when their equipment starts fires, leaving customers holding the bag for damages caused by multi-billion dollar companies that provide electricity to nearly 75% of Oregonians, lawyers and survivors warn.
Rep. Pam Marsh, D-Ashland, filed the bill Tuesday to create standards for wildfire prevention work undertaken by utilities, she said. That would result in safer communities and help the utilities stay insured by avoiding costly lawsuits, she added.
But critics of the bill, including members of the Oregon Trial Lawyers Association who participated in workgroup meetings on the bill convened by Marsh, said the bill would be used as a 'get-out-of-jail-free card' for the utilities.
Each year, the large investor-owned electric utilities are required to submit wildfire prevention plans to the Oregon Public Utility Commission. Under House Bill 3666, the commission would review the plans and issue a 'wildfire safety certification' for 12 months if the plan meets new, state-established standards.
'A wildfire safety certification establishes that an applicant is acting reasonably with regard to wildfire safety practices and materially consistent with the applicant's wildfire protection plan or wildfire mitigation plan,' the bill states.
The PUC would also be given the authority and resources to monitor that the utilities do the work promised in their wildfire prevention plans.
But Cody Berne, a governor at large with the Oregon Trial Lawyers Association and an attorney at the Portland-based law firm Stoll Berne, which is representing survivors of the historic 2020 Labor Day fires, said utilities would use the certification to their advantage in court: They could argue they had 'acted reasonably' even if they were responsible for starting catastrophic fires like those in 2020 that killed 11 people and destroyed 4,000 homes.
In 2023, a Multnomah County jury found PacificCorp guilty of being reckless and negligent in a class action lawsuit over the 2020 Labor Day fires and awarded plaintiffs hundreds of millions of dollars. To date, according to the company's website, it's agreed or been ordered to pay more than $1 billion to residents and companies affected by the fires.
Berne said that the state should hold utilities accountable for their actions.
'The Legislature shouldn't give massive corporations a bailout over keeping communities safe,' Berne said.
Berkshire Hathaway, PacificCorp's owner, recently reported year-over-year revenues up 71% from 2023 to a record $14.5 billion, and operating profits of $47 billion, up 27% from 2023.
Representatives of the Trial Lawyers Association said they warned Marsh that the bill, which has not yet been assigned to a committee, would give utilities immunity from culpability in lawsuits. But she refuted that.
'We spent a lot of time talking about whether there should be additional legal protections associated with this, and we did not attach any of that,' Marsh told the Capital Chronicle. 'The bill does not have, you know, specific statements about what a safety certification implies, from a legal protection point of view; we didn't put those on.'
Marsh is among the lawmakers that utilities have courted through donations. Since 2018, she's received $10,500 from Portland General Electric, about $1,500 a year. In its latest donation Jan. 8, PGE gave her $1,000. She's also received $5,500 from PacifiCorp since 2018, including $1,000 from the company in October 2024. She's received about the same amount — $5,500 — during the last seven years from Idaho Power, an investor-owned utility serving about 20,000 customers in eastern Oregon.
State Rep. Jason Kropf, D-Bend, is co-sponsoring the bill, along with state Rep. Kevin Mannix, a Republican from Salem.
In workgroup sessions, Oregon's big monopoly utilities — PacifiCorp's Pacific Power and Portland General Electric, or PGE – advocated for the wildfire safety regulations in the bill and certification from the Public Utility Commission.
Kristen Sheeran, a lobbyist for PGE, said the bill doesn't give utilities 'absolute immunity' but she said the companies need to 'zero out the risk' to prevent insurance loss and skyrocketing premiums, which have tripled for the company in recent years, she said.
'What if the utility has done absolutely everything to reduce the risk of wildfire related to equipment, and then 100-mile an hour wind blows an ember from 5 miles away? Or a squirrel literally climbs into a transformer and creates a spark?' she said.
PacifiCorp representatives were also in the workgroup. A company spokesperson, Simon Gutierrez, did not address questions of whether the bill could be used by the company to shield itself from wildfire liability. In an email he said the bill is 'a meaningful and holistic solution to address the foundational issues posed by wildfire risk, seeking to strike a balance between accountability and criticality.'
Ted Case, executive director of the Oregon Rural Electric Cooperative Association, which represents 18 electric cooperatives in the state, also participated in the workgroup. He said the group supports the legislation.
And Bob Jenks, director of the consumer watchdog Citizens' Utility Board, who attended meetings as well, said the board hasn't endorsed or opposed the bill while waiting for a review from the board's lawyer. But he said having enforceable wildfire prevention standards could be helpful.
'Right now utilities submit wildfire mitigation plans, right? Those plans are accepted, and that's the end of it,' he said. 'What I pushed for is: there needs to be an auditing function for the commission to go and check to see if they're doing those plans,' Jenks said.
California's wildfire safety certificate program served as a precedent for House Bill 3666, Marsh said. But California laws on wildfire liability are far more robust than those in Oregon.
In California, big electric utilities are, by law, 'strictly liable' for any damages caused by their activity or equipment, regardless of fault or foreseeability. Because the private investor-owned utilities in California, as in Oregon, are considered state-sanctioned monopolies, California law dictates they be held accountable under the same damages laws applicable to state agencies or individuals. California also has a multi-billion fund to pay wildfire survivors, and utilities are required to pay into it. Oregon has no such fund to aid victims in the aftermath of a utility-caused wildfire.
Sam Drevo, a survivor of the 2020 Labor Day fires in the Santiam Canyon, is among those waiting for PacifiCorp to pay damages. Drevo said he was 'awestruck' that Oregon legislators would propose offering PacifiCorp any relief while he and many others are waiting for damages to be paid.
He and hundreds of other survivors have been forced to each sue PacifiCorp, submit to psychological evaluations, handover medical and financial records and in trial, show that they were not negligent.
Despite the jury verdict and settlements with hundreds of victims, PacifiCorp has never accepted its responsibility and the Oregon Public Utility Commission has never investigated, both sore points for survivors.
'Do you think the Legislature should be taking care of PacifiCorp while Oregonians who were burned up in 2020 and 2022 are still suffering, not able to rebuild and move on with their lives?' Drevo said. 'How it could even be brought to the Legislature in this moment is, to me, I mean — are they even representing Oregonians?'
The lone bill in the current session to pressure PacifiCorp to resolve the pending lawsuits with Oregonians is House Bill 3161, proposed by Rep. Jamie Cate, R-Lebanon.It would prevent utilities from raising rates while they are still facing years-long lawsuits over wildfire culpability and costs. The bill, in the the House Judiciary Committee, has bipartisan support but has yet to have a hearing.
On House Bill 3666, Cate said she can see some rationale for limiting the liability of utility companies who do good work keeping communities safe, but called it 'a slap in the face to victims if a company like Pacific Power could qualify for that protection.'
Cate said her bill has been sidelined by some supporters of Marsh's bill.
'I also think it's unfortunate that the push by proponents of absolving utilities from any liability has proven effective in killing a bill that could have helped hold Pacific Power accountable for their undeniable negligence. But doing so would have undermined the argument of why they need immunity from wrongdoing to begin with.'
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