Wildfire Litigation and a Crisis of Culpability
“When fire is properly understood as a natural disturbance that climate change, fuel accumulation, and human housing and development have exacerbated, the current litigious model appears insufficient to address these challenges.”
- Elias Kohn, 2018
The summer of 2020 set a new record for the amount of land burned by wildfires in a single year, reaching an astounding figure of four million acres. This nearly doubles the previous record.[1] In 2018, the United States saw its largest wildfire since 1918; the “Camp Fire” devastated the town of Paradise in northern California, killing 85 people and wreaking havoc in the city for 17 days.[2] Researchers attribute the increasing intensity and range of these wildfires to climate change. Drier and hotter climates facilitate the spread of fires and make them less predictable. However, the law was not built with this increasingly precarious climate in mind. Those seeking to collect damages, or monetary compensation, for the destruction of the wildfires are blaming utility companies and individuals, driving more and more into bankruptcy. However, when faced with legal suits, such parties often argue that they are not entirely to blame for the devastation caused by the fires. Although faulty infrastructure has been known to spark flames, climate change also plays a major role in facilitating the spread. In this respect, defendants are correct in seeking to split responsibility with mother nature and society at large, but this poses a particularly thorny challenge of liability for the legal system.
How do we account for this new reality? In this article, I seek to answer this question. I will focus primarily on the recent case of the Pacific Gas and Electric Company (PG&E) in California, but I also draw from other environmental injustices related to climate change. I conclude that our legal system does not hold the government accountable for its facilitation, perpetuation, and negligence of environmental injustices that result from anthropogenic climate change. Consequently, wildfire litigation, has created a crisis of liability that ultimately harms the victims it purports to protect.
Instead of holding the government accountable, the law seeks unnecessarily high damages from individuals, creating perverse effects for the problem at hand. The government often pursues relatively aggressive litigation when it comes to wildfires, setting a high precedent for the amount of damages allowed to be collected in these cases. When the damages are inflated in this way — often up to seven times the market value of the property — it creates high risk for local parties who want to engage in prescribed burning.[3] Prescribed burns are intentional, controlled, low-intensity fires that help with natural forest management. They mimic the naturally occurring fires that managed vegetation prior to industrialization. The high damages awarded to victims of wildfires can dissuade individuals from conducting controlled burns. These individuals are often fearful that their burns could accidentally cause property destruction and result in crippling fees. Another side-effect is that these damages deter people from taking proper precaution to protect their homes, such as investing in fireproof infrastructure or clearing dead vegetation on their land. They have little incentive to do so if they know that they will receive such a high monetary reward in the case of a fire.[4] Thus, high damages, while seemingly helpful for wildfire victims, are actually causing more wildfire destruction than they are preventing.
Another reason these high damages might have harmful effects on communities is that they put irrationally high financial liability on utility and insurance companies who then redistribute the burden to the public. I argue that the financial liability is irrationally high because it is not just companies and individuals who are responsible for fires but climate change. Nevertheless, the government has historically pursued increasingly aggressive damages against companies, suing Union Pacific Railroad for $102 million in 2006, Sierra Pacific Industries for $709 million in 2009, and PG&E for $10.5 billion in 2018.[5] California wildfire law has very specific rules for establishing liability. Typically, insurance companies will cover the damages caused by natural disasters, but of course, as the intensity of these fires increases every year, these companies find themselves increasingly strained and are often unable to provide sufficient coverage. These disasters seem essentially blameless because they are started naturally by lightning, drought, etc. However, the law changes when a wildfire has a specific, identifiable, non-natural spark, as in the case of the Camp Fire started by PG&E’s faulty power lines. In these cases, the utility companies are subject to a policy called “Inverse Condemnation” which holds the company liable regardless of whether the fire was a result of negligence or an honest accident.[6] In 2018, the damages from the Camp Fire were assessed at $10.5 billion, a number that, when combined with the outstanding damages from another fire in 2017, pushed PG&E to file for bankruptcy.
However, in 2019, California passed a new statute, AB-1054, that protected PG&E from these extreme liability costs. It allows utility companies to charge its customers an additional fee to help pay for these costs, and it has been met with public contention. Two customers filed suit against the California Public Utilities Commission, arguing that the new law was unconstitutional. They pointed out that these companies repeatedly failed to comply with safety standards, and that this law shifted their financial burdens onto the ratepayers.[7] Although the case was dismissed with prejudice in the Northern California District Court under the Johnson Act, which states that the court does not have jurisdiction over utility rates, the plaintiff’s arguments raise important questions about liability in these types of cases.[8] One could argue that both ratepayers and the companies are liable, as the law seems to confirm this idea. It is abundantly clear why these companies want to shift the burden to their customers. The damages are so high, and the fires are becoming so frequent that these wildfire relief costs are becoming an implicit cost for all beneficiaries of the California electrical grid. Once again, wildfire law has proven to harm the community by making it increasingly liable for wildfire costs, rather than actually addressing the root of these pervasive disaster: governmental inaction.
Legal scholars have recognized governmental culpability and proposed solutions for a more modern and sustainable form of wildfire mitigation through government action. The current litigious model, as I described before, awards monetary compensation but often has the unintended effect of perpetuating wildfire vulnerability in affected communities. One solution to this is that governments could work harder to discourage migration into the Wildland-Urban Interface (WUI), or the area between unoccupied land and human development. People who settle there pose a risk to the environment because their presence increases the chance of wildfire occurring either by accident or as a result of negligence.[9] They also “create a moral dilemma for firefighters who must make decisions concerning the direction and priority of firefighting efforts” (Stoa 429). If there are fewer private settlements in the WUI, when catastrophic fires do occur, firefighters can focus more on environmental preservation instead of always prioritizing the protection of private property. Additionally, scholars advocate for an increased reverence for the natural ecological processes that prevailed prior to the industrialization of the 1800s. Frequent, low-intensity wildfires are a natural part of the landscape of the western United States and help manage natural vegetation cycles. Because so many government efforts have historically been aimed at preventing and suppressing wildfires, society has disrupted this natural process, allowing flammable, dead, and dry vegetation to accumulate and fuel massive fires when accidents do occur.[10] Although this was not commonly understood in the past, the law today ought to reflect our modern understanding.
Nevertheless, the most revolutionary solution will come only when we shift our fundamental understanding of culpability for the massively destructive fires we experience in the twenty-first century to the government’s failure to address climate change. One might argue that while some wildfires might be natural disasters induced by climate change, others really are purely the result of human error, and as such individuals ought to take full responsibility in those instances. For example, in the PG&E case, the company admitted to having flouted safety regulations. Yet, while inexcusable, the equipment failures were by no means uncommon. For years, PG&E provided power to millions of Californians via ancient and faulty grids with few accidents. In recent times however, California has been experiencing severe drought, making much of the land susceptible to fire. The climate has become so dangerous that even a stunt at a gender reveal party in 2020 was all that was needed to spark a massive disaster.[11] This is not to say that these actors bear zero responsibility for these wildfires, but the underlying conditions that make what used to be mild accidents into completely devastating events cannot be attributed to one company or individual.
There is one actor, however, who has managed to avoid taking responsibility despite its undeniable role in the problem: the federal government. Studies have shown that wildfires in California have increased by 400% from 1972 to 2018. This is due to the increasingly dry air and high temperatures that characterize anthropogenic climate change. Since the late 1800s, the vapor-pressure deficit — a metric used to measure the lack of moisture in the air — has increased by 10% and is expected to double by 2060 if society continues on the current path.[12] It also is well known that the relatively unregulated use of fossil fuels has contributed significantly to global warming and general climate change.[13] Yet, every year, the federal government fails to use its power to enforce or create regulations that slow climate change and combat the use of fossil fuels. A failure to hold the government partly liable for wildfires comes from a more systemic failure to acknowledge its role in climate change.
Although it may seem just, the idea that the government owes its citizens a life without climate-change-related devastation is actually quite controversial. In 2020, the Ninth Circuit Court of Appeals case Juliana v. United States put the government on trial for failing to mitigate climate change. A group of twenty-one young plaintiffs sued the federal government for violating their fifth amendment right to a “climate system capable of sustaining human life.” (Juliana v. United States 2020). Although this right is not explicitly stated in the fifth amendment of the Constitution, the plaintiffs argued that the government has continued to support the use of fossil fuels, knowing that they cause climate change, and, in doing so, the government has threatened the life, liberty, and property of the American people. As such, the right to be free of climate change is an implicit mandate of the due process clause. The plaintiffs did not win their case, as the court found a lack of jurisdiction under Article III of the Constitution. However, this proposed constitutional requirement raises important questions about the government’s liability in climate change related injuries moving forward.
In this article, I have argued that this country’s most significant problem with regards to wildfire litigation is the problem of misplaced liability. For much too long, we have failed to recognize one important source of the devastation that the western United States needlessly faces year after year: the federal government’s refusal to mitigate the effects of climate change. If we are to properly understand the difficulty of wildfire litigation today and find legal solutions to this modern problem, we must understand the role that the government plays in creating highly flammable ecosystems. While the Department of Justice continually blames wealthy companies for “the public’s loss of pristine forests and enjoyment of the forested areas” (Kohn 601), in reality the government has neglected to protect these areas from the effects of climate change for years with impunity. Not only has the government facilitated the use and abuse of fossil fuels, it has also ignored the natural ecology of the land and suppressed the organic fires that could help regulate vegetation. Without proper accountability, the law undermines wildfire mitigation. The litigation model that the government currently employs claims to protect victims of fires, but in reality, its shortcomings in assigning liability only create more harm.
References
[1] Stelloh, Tim. “California Exceeds 4 Million Acres Burned by Wildfires in 2020.” NBCNews.com
[2] US Census Bureau. “Camp Fire - 2018 California Wildfires.” The United States Census Bureau
[3] Kohn, Elias. "WILDFIRE LITIGATION: EFFECTS ON FOREST MANAGEMENT AND
WILDFIRE EMERGENCY RESPONSE."
[4] Stoa, Ryan B., "Droughts, Floods, and Wildfires: Paleo Perspectives on Disaster Law in the Anthropocene,"
[5] Kohn, Elias. "WILDFIRE LITIGATION: EFFECTS ON FOREST MANAGEMENT AND
WILDFIRE EMERGENCY RESPONSE."
[6] LegalEagle, “Who Can We Sue for the California and Oregon Fires?” YouTube.
[7] Drugmand, Dana. “Residents Say California Wildfire Liability Law Is Unconstitutional.”
[8] Cannara v. Nemeth, Case No. 19-cv-04171-JD (N.D. Cal. Jun. 17, 2020)
[9] Stoa, Ryan B., "Droughts, Floods, and Wildfires: Paleo Perspectives on Disaster Law in the Anthropocene,"
[10] Stoa, Ryan B., "Droughts, Floods, and Wildfires: Paleo Perspectives on Disaster Law in the Anthropocene,"
[11] LegalEagle, “Who Can We Sue for the California and Oregon Fires?” YouTube
[12] Williams, A. P. (2019). Observed impacts of anthropogenic climate change on wildfire in California. Earth's Future
[13] Denchak, Melissa. https://www.nrdc.org/stories/fossil-fuels-dirty-facts