“Natural” Disasters, Who Can be Held Liable? California Fires and Global Climate Change

“Natural” Disasters, Who Can be Held Liable? California Fires and Global Climate Change

By Alexander Cervantes

In the past month California has been set ablaze by a series of disastrous wildfires.  Julia Prodis Sulek, Santa Rosa fire: How a sudden firestorm devastated a city, Oct. 9, 2017.  This firestorm is being considered one of the most lethal and destructive for California on record, which necessitated hundreds of thousands to evacuate.  Doyle Rice, California wildfires: A record week of death and destruction, Oct. 12, 2017.  Many were given notice so short that flames literally lashed at their heels.  Paul Payne, More North Bay residents sue PG&E over wildfires, Nov. 1, 2017.  Today, more than forty people have perished and over 14,000 homes were damaged or destroyed.  Shelby Grad & Richard Winton, Losses from Northern California wildfires top $3 billion; 14,000 homes destroyed or damaged, Oct. 31, 2017.

Multiple factors played a role in creating this devastating firestorm.  Madison Park, How did Northern California fires become so devastating?, Oct. 11, 2017.  There were hurricane-force winds.  Id.  The fires started at night giving residents and authorities little notice.  Id.  There was an overgrowth of vegetation which allowed the fire to spread rapidly.  Id.  And October’s dry conditions is also suspected to have influenced to the “perfect storm” for wildfires.  Id.  State fire officials are still investigating the cause of the blazes, but reports now point to PG&E regarding its equipment maintenance and whether it adequately cut back trees from power lines to reduce fire risk in accordance with state law.  George Avalos, Matthias Gafni, & Paul Rogers, PG&E power lines linked to Wine Country fires, Oct. 10, 2017.  The Harvells, a Santa Rosa couple who lost their home along with over 1,000 others to the Tubbs fire, were the first to file a lawsuit against PG&E alleging it was negligent in its maintenance of equipment which came into contact with drought-dry vegetation.  Paul Payne & Mary Callahan, Santa Rosa couple sues PG&E over Sonoma County fires, Oct. 17, 2017.  Now there are more than 100 people filing nine separate complaints against the utility provider.  Paul Payne, More North Bay residents sue PG&E over wildfires, Nov. 1, 2017.

Though these fires may seem like a “natural” disaster, PG&E may have played a large role in its creation and/or exacerbation.  As a utility provider, PG&E owed a general duty of care to foreseeable plaintiffs, the residents in the area, and a contractual duty to those it serviced.  See Tarasoff v. Regents of Univ. of Cal., 17 Cal. 3d 425, 434 (1976).  The defense PG&E will most likely use, according to UC Hastings Law Professor David Levine, is that the fires were an “act of God”— that the storm was an unfortunate but natural occurrence, and that utility provider could not be responsible.  CBS SF Bay Area, Wildfire Victims Sue PG&E While Officials Continue To Investigate Cause, Oct. 18, 2017.  Furthermore, PG&E would challenge the causation requirement for negligence liability, alleging that if there were any issues with their equipment maintenance, the production of such a devastating fire would not have been within the scope of foreseeable risks.  See Palsgraf v. Long Island R. Co., 248 N.Y. 339, 351 (1928).

However, many would argue that that PG&E’s failure to maintain this explosive equipment and overgrowth of trees is definitely a foreseeable risk that could lead to a forest fire or intensify one.  California is notorious for its long drought season and October is an especially dry month.  Despite, this obvious risk PG&E the state’s last regulatory audit showed that the company was dangerously behind schedule for repairs in the electrical grid, a total 3,527 separate repair orders in Santa Rosa and Sonoma.  Jaxon Van Derbeken, State Audit Shows PG&E Had Repair Job Backlog in Sonoma, Santa Rosa, Oct. 20, 2017.  Correspondingly, PG&E does not have the best track record when it comes down to disasters it was responsible for.  Corey Law, The Corey Firm Partners with Two Other Top Bay Area Law Firms in Northern California to Represent Those Impacted by the October 2017 Northern California Fires in Santa Rosa, Napa County, Sonoma County, and Lake County, Oct. 2017.  The San Bruno Pipeline Explosion, the Hinkley Groundwater contamination, and the 2015 Butte Fire are just a few catastrophic disasters PG&E was deemed responsible for.  Id.  “Cal Fire found PG&E responsible for the 2015 Butte fire, which destroyed 549 homes and killed two people. The fire was sparked by a tree that fell into a power line … The California Public Utilities Commission fined PG&E $8.3 million for the fire.”  Paul Payne, More Sonoma County residents sue PG&E over wildfires, Nov. 1 2017.  “In 2015, regulators fined PG&E $1.6 billion for the 2010 San Bruno pipeline explosion, which killed eight people.”  Id.  This long history of past malfeasance does not aid its defense.  When continued failures occur, by a utility provider that the community relies on, minimum standards of care must be increased along with courts’ finding of fact as to what is “reasonably foreseeable.”  Colleen E.Brown, Stephanie E.Chang, & Timothy L.McDaniels, Article, Utility Provider Liability for Electrical Failure: Implications for Interdependent Critical Infrastructure, 19 The Elec. J., 69, 69 (2006).

The Harvells’ suit has triggered a “tidal wave”—as Andrew Bradt, associate professor of at UC Berkeley’s School of Law, put it—of civil cases, both state and federal on behalf of out-of-state plaintiffs who suffered damage or loss from these fires. Paul Payne & Mary Callahan, Santa Rosa couple sues PG&E over Sonoma County fires, Oct. 17, 2017.  PG&E has $800 million in liability insurance but estimates for fire damages are already ranging as high as $3 billion.  Emily DeRuy, Santa Rosa couple claims PG&E negligence led to wildfire, Oct. 18, 2017.  This has put the company’s financial stability in jeopardy and raised questions as to how victims will be compensated.  Id.

These California fires lead us to think about what other “natural” disasters big corporations could be liable for because of their malfeasance.  Perhaps more attenuated but the threats and harms still very much a reality, climate change is a disaster more and more people are looking to be compensated for.  This is an environmental issue that has been exacerbated by human nature especially through our use of fossil use.  Instead of negligence claims, suits have been brought against oil companies for nuisance.  See Comer v. Murphy Oil USA, 718 F.3d 460 (5th Cir. 2013); Native Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d 849, 858 (9th Cir. 2012).  In Native Village of Kivalina, plaintiffs sues because their entire village was sinking due to increased water levels, necessitating them to evacuate their homes.  Id. at 849.  Plaintiffs alleged that Exxon conspired to create a false scientific debate to deceive the public creating a public nuisance.  Id. at 858.  However, these claims were preempted by the Clean Air Act which provides that the Environmental Protection Agency (EPA) regulate greenhouse gases.  Id.

Suits did not halt there, however.  This year, multiple Bay Area cities filed separate lawsuits against Chevron, ConocoPhillips, ExxonMobil, Shell, and BP all for public nuisance.  Kimberly Willis, Taking on the Fossil Fuel Industry: Why California’s Public Nuisance Lawsuits May Succeed Where Others have Failed, Oct. 16, 2017.  The cities of San Francisco and Oakland allege that these companies, which account for 7.4% of global greenhouse gas emissions, knew that their actions contributed to climate change and the resulting sea level rise.  Id.  These suits may be successfult because courts have not yet addressed whether the Clean Air Act preempts state common law public nuisance claims.  Id.

The California fires and climate change cases are still in their early stages and we will have to wait and see whether these individuals and cities can be compensated for the wrongs done by large corporations.  But we can be hopeful that those wronged can have their day and court have justice be served.