PG&E ducks negligence suit over wildfire prevention shutoffs

(CN) — Pacific Gas & Electric can't be sued for negligence over a series of power shutoffs the utility implemented in 2019 to decrease the risk of its power lines igniting wildfires in parts of Northern California during extreme weather conditions.

The California Supreme Court on Monday sided with PG&E in a class action that sought as much as $2.5 billion in damages for residents and business owners who were left without electricity for days during the so-called public safety power shutoffs and who claimed these were the result of PG&E's decades of negligent maintenance of its power lines.

The question whether California's Public Utilities Code preempted the negligence claims was punted up to the state's top court last year by the Ninth Circuit Court of Appeals.

The lawsuit by Anthony Gantner, a St. Helena resident who was without power for eight or nine days during the shutoffs, had ended up before the federal appeals court after a bankruptcy court judge as well as a lower court judge had concluded that the claims would interfere with Public Utilities Commission's regulation and supervision of the emergency shutoffs.

This, the California Supreme Court said, was correct because Gantner’s class action sought damages for shutoff events without regard to whether those events were necessary or properly executed under PUC guidelines. As such, the court said, the lawsuit impermissibly interfered with the California Public Utilities Commission's supervisory policies regarding both the public safety power shutoffs implementation and reasonableness review.

"By seeking billions of dollars in alleged damages resulting directly from power shutoffs, Gantner’s suit would ‘hinder’ or ‘frustrate’ the PUC’s carefully designed implementation calculus," Associate Justice Goodwin Liu said in the unanimous decision.

"Gantner’s suit would require a court to hold a parallel review process, adding the judgment of a jury to that of the PUC in assessing the causes and propriety of PG&E’s PSPS implementation," the judge said.

Gantner's attorney Brian Conlon with the firm Phillips, Erlewine, Given & Carlin blasted the ruling in an email Monday.

"This is a sad day for Californians. The court’s opinion leaves consumers footing the bill for power shutoffs — even if days or weeks long — made necessary PG&E’s (or any other regulated utility’s) negligent grid maintenance no matter how negligent PG&E is in maintaining its electric grid and no matter how much damage it causes to its customers, as long as it complies with the CPUC regulations regarding the mechanics of shutoff implementation," Conlon said.

He added: "We urge the California Legislature to step in — as the court suggests it might — and address the growing power disparity between California utilities and the citizens who are forced to rely on them. Until that time, the court's opinion means that Californians can look forward to more and longer avoidable blackouts."

After a devastating series of wildfires in California the previous year, frequently caused by power lines in rural areas igniting bone-dry vegetation during high winds, the California Public Utilities Commission in 2019 issued guidelines for utilities to proactively cut power to lines that may fail in certain weather conditions to reduce the likelihood that they could cause or contribute to a wildfire.

Under the regulator's guidelines, utilities have to notify customers affected by these preventative blackouts as soon as practicable and create plans for mitigating harm from the blackouts.

The shutdowns during the fall of 2019, which were the basis for Gantner's lawsuit, didn't go without a hitch, and the commission fined PG&E $106 million for, among other things, its nonfunctioning website, the inaccuracy of its online outage maps, and its failure to provide advanced notification to about 50,000 customers, including some 1,100 customers who rely on life support equipment.

Gantner's lawsuit, filed in bankruptcy court because the utility had sought Chapter 11 protection to resolve the billions of dollars in damages it faced from the previous wildfires linked to its equipment, indicated 60% of PG&E's 113,000 miles of power lines were highly susceptible to failure because the utility had repeatedly delayed upgrading its oldest transmission lines.

"The sole purpose of a Public Safety Power Shutoff is to reduce the risk of major wildfires during severe weather," PG&E said in a statement Monday. "We know that losing power significantly disrupts people’s lives. That’s why we continue to work with the California Public Utilities Commission to improve the planning and execution of PSPS events and to significantly reduce the program’s impact on our customers. Improvements include updating forecasting and fire-risk modeling; improving technology and tools to identify scope and potential impacts; and strengthening community engagement with stakeholders."

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