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Will the state Attorney General or the Butte County district attorney file criminal charges against Pacific Gas & Electric now that state fire investigators have found the utility giant responsible for causing last year’s deadly Camp Fire?
The answer may hinge, legal experts say, on whether PG&E was reckless in failing to replace aging or damaged equipment and on whether prosecutors feel they can prove that in court beyond reasonable doubt.
The Camp Fire was the worst wildfire in state history, killing 85 hillside residents in Butte County and destroying nearly 19,000 buildings.
Cal Fire officials have declined to make their Camp Fire investigative report public, or issue any detailed comment on it. But the fact that the fire agency forwarded its investigation to Butte County District Attorney Mike Ramsey may be telling. The state in recent years has typically sent an investigative report to county district attorneys when state fire investigators believe a state statute has been broken. The Sacramento Bee has filed a formal public records act request for the document.
Butte DA Ramsey said his office and the Attorney General already have been looking for months into whether criminal charges are appropriate. That includes ongoing communication with Cal Fire investigators. Ramsey declined, however, to comment on what he is looking at and when he will decide what steps to take.
“It may be some weeks or months before we have a final answer,” Ramsey said. “Just like any other investigation, we don’t want to reveal our cards.”
If prosecutors take action, it won’t be the first time in recent years that criminal charges have been filed against PG&E for a deadly incident involving its infrastructure. The federal government successfully prosecuted PG&E in 2016 on felony charges of failing to properly inspect and repair gas pipelines after a line exploded in residential San Bruno in 2010, killing eight people.
The company was ordered to pay a fine and advertise its culpability in news media. The criminal fine, at $3 million, was far less than civil payouts PG&E has made for the explosion. No individuals were charged.
Local county prosecutors have been reluctant to charge the utility for causing wildfires, even when Cal Fire indicated that PG&E may have violated state statutes by failing to adequately maintain its electrical power system.
Two months ago, prosecutors in four North Bay counties announced that they had declined to pursue criminal charges against the utility for equipment failures that triggered a series of wildfires in 2017, saying they determined “insufficient evidence exists to prove beyond a reasonable doubt that PG&E acted with a reckless disregard for human life in causing the fires, the standard necessary to sustain criminal charges.”
The Tubbs Fire, which burned whole neighborhoods in Santa Rosa in 2017, was not among the fires under review by the DAs in those counties. That is because the Cal Fire investigation of the blaze, which killed 22 people, determined it was caused by an electrical failure on private property near Calistoga.
The Attorney General’s office also declined comment on the Camp Fire investigation. But a December court brief from the Attorney General in the San Bruno case offers insight. Before filing criminal charges, prosecutors would have to decide that PG&E engaged in reckless operation of its power equipment. Prosecutors also would gauge PG&E’s “mental state.” The charges could range from misdemeanor negligence to murder, according to the brief.
PG&E might be viewed unsympathetically by a criminal jury. Former state Attorney General Bill Lockyer says prosecutors generally do not consider public opinion when determining whether it is appropriate to prosecute an entity. Lockyer, who has consulted for PG&E, declined to speak about the utility company, but said prosecutors in general stick with legal questions.
“Their discipline is to be very careful about separating politics and public opinion from what they are doing and look in a rigorous, factual way about assessing the right thing to do,” he said.
Nevada County set a legal landmark in the 1990s, winning a wildfire criminal conviction against PG&E on hundreds of charges. The utility’s actions were egregious back then, District Attorney Clifford Newell said. In recent years, however, he’s seen utility crews doing maintenance around the county leading up to fire season, acts that potentially reduce their criminal liability in case of fire. “Criminal negligence is one of the toughest standards to meet,” Newell said.
This isn’t the first time Butte DA Ramsey has dealt with PG&E on potential criminality involving a wildfire.
Ramsey decided last year not to file criminal charges for a small wildfire near Paradise, instead working out a deal with the utility to fund fire safety. PG&E pledged $1.5 million to pay for four new fire safety inspectors, and to allow those inspectors to look at PG&E’s power lines. If inspectors find a fire safety hazard, PG&E agreed to correct it within 24 hours.
The fire that prompted the deal, the 2017 Honey Fire, occurred when a tree limb hit PG&E power lines, sparking a fire that burned 150 acres of brush a half-mile from Paradise. Cal Fire determined that PG&E had failed to follow state public resources code that required it to trim a decaying limb close to the power line.
The Butte safety inspectors agreed upon in that settlement had not yet been hired when the devastating Camp Fire hit in November.
PG&E failed to report that settlement to the federal court overseeing the San Bruno case. The judge in that court recently ruled that PG&E had thus violated terms of its probation. The judge last week ordered the PG&E board of directors to take a tour of Paradise to see the devastation, and also to go to San Bruno, to meet with city leaders.