Once again, the West Coast has experienced a catastrophic wildfire season. Lives lost, thousands displaced, communities destroyed, millions of acres burned, and hazardous air blanketing the region: this has been the reality over the past few months. And it's sadly not over, as massive fires continue.
Oregon experienced some of its most devastating wildfires after a strong windstorm over Labor Day Weekend. The state's latest figures report the fires as responsible for the deaths of nine people, having burned one million acres and destroying over 3,000 homes. Their causes largely remain under investigation.
But in the wake of those fires—only some of which are fully contained—the roles and responsibilities of Oregon utilities in preventing or mitigating infrastructure-related fires is taking on renewed emphasis.
Putative Class Action Filed
Last Thursday, a putative class action was filed in Portland, Ore., against PacifiCorp, one of the state's largest electric utilities, alleging that the utility was liable for damages associated with various fires started on Labor Day.
The suit alleges that PacifiCorp failed to properly design, inspect, and maintain its facilities and that the utility failed to take immediate adequate precautions—namely, to de-energize their lines—despite the notice of significant weather-related risks over the holiday weekend. The lawsuit includes claims for negligence, private and public nuisance, trespass, and injunctive relief.
The suit is notable in many respects, beginning with its breadth. The suit seeks to include in its class "[a]ll citizens of Oregon who suffered damages from fires caused by PacifiCorp or Pacific Power in Oregon beginning on or after" Labor Day. In other words, the suit appears intended to potentially represent individuals affected by separate fires, in separate parts of the state. (The complaint's specific allegations relate primarily to the large fire in the Santiam Canyon region of the state, where the named plaintiffs reside.)
The sweeping nature of the relief requested is notable as well. In addition to seeking an accounting for damages for the class, the suit also asks the court to enjoin PacifiCorp "from leaving powerlines energized in areas of Oregon experiencing extremely critical fire conditions."
Although preemptive electric line shutoffs (known as Public Safety Power Shutoffs (PSPS) in the Oregon Public Utility Commission (PUC)) have become common in California, the Oregon PUC has described them as a "new tool" and "last resort" in Oregon. But their use is gaining more focus.
Oregon's other investor-owned electric utility, Portland General Electric, recently reported to the Oregon PUC that it did utilize PSPS during the Labor Day storm. And the new class action suit alleges that other electric line operators (not regulated by the PUC) did as well.
Oregon PUC Oversight Continues to Ramp Up
The Oregon PUC has observed that "any liability for damage caused by a fire will be decided through private litigation." But the use of PSPS by utilities is one of the many wildfire-related issues that the Oregon PUC will continue to tackle in the near future.
The Labor Day storm and wildfires occurred at a time when the PUC is already actively engaged in investigating the role of utilities in wildfire mitigation and response. Earlier this year, the Oregon PUC established a Wildfire Electricity Collaborative to help electricity providers develop best practices for mitigating wildfire risk, and also opened up a rulemaking to formalize utility wildfire mitigation plans. Proper PSPS implementation, with its various tradeoffs, is one of the mitigation tools likely to be highly debated.
The PUC's initiatives follow the recent climate change directive from Governor Brown, whose 2019 wildfire task force recommended significant changes to wildfire management within the state. In addition, as a direct response to the recent wildfires, the PUC heard this past week from top executives of various utilities regulated by the agency—including not only electric and gas IOUs, but also telecommunications and water providers—on the utilities' responses to and the impacts of the Labor Day windstorms and wildfires.
The PUC also released a report addressing questions about "Wildfire and the Oregon Electric System." The report emphasizes that although the PUC's role will not be to assign liability for the wildfires, its authority does extend to investigating the utilities' practices for ratemaking purposes. In this respect, the report notes that vegetation management has recently been and will likely continue to be a "focal point" in the PUC's wildfire-mitigation efforts.
As recent events reflect, those efforts are likely to take on an increasingly prominent role in the future.