PacifiCorp now wants protection from fire victims

Oregon’s second-largest electricity provider wants state regulators to protect it from the costs of future lawsuits seeking reimbursement from destructive wildfires.

The Oregonian reported that PacifiCorp’s request to the Public Utility Commission (PUC) was made just months after the utility lost a massive lawsuit in Multnomah County over its negligence in Oregon’s catastrophic Labor Day fires of 2020. More lawsuits are still pending with plaintiffs seeking billions of dollars in damages. In June after the trial, the company wanted ratepayers to pay for $90 million a jury found PacifiCorp liable for, after it had started numerous fires and burned miles of forest and thousands of homes in the 2020 fires. (The final verdict [PDF] in the PacifiCorp trial is posted on our DOCUMENTS page.) The jury in Multnomah County Circuit Court in Portland found PacifiCorp  — which owns Pacific Power — liable for four of the devastating Labor Day 2020 fires that burned about 2,500 properties in western Oregon.

One of the 2020 fires overran the ICP.

PacifiCorp’s new request drew harsh criticism from wildfire victims, lawyers, and ratepayer advocates, who questioned the company’s motives and the proposal’s legality. The financial protections PacifiCorp is seeking, in addition to assuming that future fires will be started by the utility company, would “only apply prospectively,” the company told state regulators. Simon Gutierrez with PacifiCorp said the request would have no impact on ongoing litigation.

PacifiCorp has already asked state regulators to let it pass the cost of damages it owes for wildfires in 2020 on to its customers.

2020 Labor Day fires in western Oregon
09/13/2020 — the Labor Day fires were among the worst natural disasters in Oregon’s history. They killed nine people, burned more than 1,875 square miles (4,856 square kilometers) and destroyed upwards of 5,000 homes and other structures.

A report by OPB back in June said that PacifiCorp had asked the PUC to allow the utility to defer the wildfire liability costs  through June 2024, which would give the company the option to add those costs to customers’ rates in the future.

“The deferred accounting application enables Pacific Power to preserve its ability to seek recovery in the future in the event the outcome could impact the financial stability of the company, which would result in higher costs to customers,” said the PacifiCorp attorneys.

A class action lawsuit is still ongoing; jurors found that PacifiCorp could be liable for punitive damages to thousands of Oregonians who lost property in the Echo Mountain Complex and the Santiam Canyon, South Obenchain, and 242 fires. The company estimates those costs could total billions of dollars.

PacifiCorp has now asked the Oregon PUC to limit future lawsuit awards  to “actual” damages for property and loss of life. As a condition of receiving electric service, customers would have to waive their right to other damages (such as non-economic and punitive awards by juries), like the awards that the county jury stung the utility with in June after it found Pacific Power’s  conduct was grossly negligent, reckless, and willful.

courtroom exhibit in the PacifiCorp trial

The utility filed the same request in Washington, California, Idaho, and Wyoming — where it also provides power. PacifiCorp says limiting damages from wildfire lawsuits would protect customers from higher costs.

Meanwhile, PacifiCorp is one of three energy suppliers receiving $450 million in funds from the federal government. OPB reported that two Oregon utilities and the Confederated Tribes of the Warm Springs together will receive nearly $450 million from the federal government to modernize the region’s power grid and incorporate more renewable energy. The investment will allow PacifiCorp, Portland General Electric, and the tribe to boost transmission capacity and job training and fortify the electric grid from the dangers of wildfires.

2020 Beachie Creek Fire

PacifiCorp will match the federal funds allocated for its projects, according to Rohit Nair, the company’s director of engineering standards and grid modernization.

“This is a once-in-a-generation opportunity to secure significant federal funding for programs that support our customers,” he said, “especially those in historically underrepresented and marginalized communities.” The funding is part of a total $3.5 billion the Biden administration announced in mid-October for states to upgrade their electric grids to make them more resilient to climate disasters and to support clean energy development.

2020 Beachie Creek Fire

But while PacifiCorp moves forward with upgrading its infrastructure, it’s also asking the PUC to protect it from future lawsuits after utility-caused wildfires.

“This proposal is grossly beyond the pale,” said Sam Drevo, one of 17 named plaintiffs who were collectively awarded $90 million in economic, non-economic, and punitive damages in back in June. “As a wildfire victim who lost everything in fires that were caused by PacifiCorp’s equipment, non-economic and punitive damages are the only punishment available in the legal system to stop negligent behavior from happening again,” he said. “I am shocked by this disgusting proposal and hope it falls flat with the PUC.”

Lee Beyer, a longtime Oregon legislator and former PUC chair, said PacifiCorp’s assertion that the request would benefit ratepayers is questionable. He believes it’s unlikely the commission would allow PacifiCorp to pass the legal costs on to customers.

“Any costs coming out of a court case are generally the responsibility of the utility and its shareholders,” Beyer said.

Bob Jenks, executive director of the ratepayer advocacy group Oregon Citizens’ Utility Board, questioned whether the PUC even has the legal authority to grant PacifiCorp’s request. Asking ratepayers to waive their legal remedies as a condition of accepting service from a local monopoly is pretty extreme, he said. “It’s incredibly broad and raises a number of fundamental legal questions.”

Jury finds PacifiCorp liable for $71+ million


The FINAL VERDICT in the PacifiCorp trial
is now posted on our DOCUMENTS page.

The jury in Multnomah County Circuit Court in Portland found PacifiCorp liable for four of the devastating Labor Day 2020 fires that burned about 2,500 properties in western Oregon. The 12-person jury, according to a report by the Statesman Journal, determined that PacifiCorp (Pacific Power) was negligent for causing the Santiam, Echo Mountain, South Obenchain, and 242 fires after a 7-week class action trial. Pacific Power is Oregon’s second-largest utility.

One of the Labor Day fires in 2020
One of the Labor Day fires in 2020 — from an exhibit during the trial

The jury found that PacifiCorp was negligent to an entire class in the Santiam Canyon, Lincoln City, and southern Oregon areas. Lawyers argued that PacifiCorp’s power lines ignited numerous wildfires that burned thousands of homes during an extreme high wind event on Labor Day night of 2020.

“The trial revealed that PacifiCorp tried to cover up and destroy evidence of powerline-ignited fires in the Santiam Canyon,” said Sam Drevo, one of the plaintiffs, “including electrical fires in firefighter camps in Gates and Mill City, overwhelming firefighters, causing chaos and more loss.”

“I was shocked by how little the company’s top people claimed to remember,” Drevo said, “how they tried to pass the buck, and by how much evidence they admittedly destroyed after knowing their equipment started fires. They took zero responsibility, and they said they would do ‘nothing differently’ next time.”

Drevo said the Santiam Canyon will never be the same. “But I hope this verdict will help in the long-term healing and recovery of what took many lifetimes to build. I ask the State Fire Marshal and State Police to look into whether criminal charges are warranted for the destruction of evidence.”

OPB reported that jurors returned a nearly unanimous verdict today. After less than two days of deliberations, jurors found the company owes more than $71 million to the 17 plaintiffs in the case for losses related to the fires and emotional suffering. The jury also applied its liability finding to a larger class, including the owners of nearly 2,500 properties damaged in the fires, according to a report by the San Francisco Chronicle. That determination could push the cost for damages to more than $1 billion.

The jury said PacifiCorp was at fault because the utility did not proactively shut down power, though several other utilities did, in the face of fire weather warnings, predicted high winds, and many reports and calls about arcing power lines and burning trees on power lines. The utility also failed to clear or maintain trees and other vegetation that its employees knew was a fire hazard.

From one of the exhibits at trial
From one of the exhibits at trial

PacificCorp argued that there was limited evidence its power lines caused the fires in question, but attorneys for the plaintiffs demonstrated that PacifiCorp employees in many cases had destroyed or hidden evidence, and utility employees had repeatedly trespassed onto the fire area — still under investigation — to remove or repair equipment despite repeated orders by the IC and other fire managers to stay clear of the closed area.

Ralph Bloemers, the director of Fire Safe Communities at Green Oregon, was among the first to report and document electrical fires in the Santiam Canyon in testimony to the Oregon Senate. He said fires driven by east winds in western Oregon are nothing new. These fires are a clear sign, though, that Oregon utilities need to prepare for wildfires in all areas of Oregon — whether a high or low fire frequency landscape, heavily populated or not.

“Western Oregon has a long history of wind-driven fire events, and these east wind fires can be very big, covering vast areas, burning where we haven’t seen fires in our lifetimes,” Bloemers said. “But big fires are part of these landscapes, and are now being amplified by extended drought and increased wind as the climate changes.”

Here is a youtube clip from Elemental: Reimagine Wildfire — which begins streaming tomorrow.

The Labor Day fires of 2020 burned more of the Oregon Cascades than had burned in the previous 36 years combined.

Because the jury found PacifiCorp negligent to entire classes, a second phase of the trial will allow people affected by the fires to claim damages, even if they were not involved as plaintiffs in this first phase.

OPB reported that Bob Jenks with the Oregon Citizens’ Utility Board, which represents the interests of ratepayers, said the utility could not reasonably pass on the costs from Monday’s verdict to its customers because the jury found the company was grossly negligent. He said it may be possible that customers will have to pay more in the future if PacifiCorp decides to spend more money on tree trimming and other wildfire mitigation efforts.

Still, he said, the verdict was a clear message.

“To me, this was a pretty harsh verdict against PacifiCorp,” Jenks said. “It’s clearly sending the message to companies that you can be held liable.”

Investigators have still not, more than two years later, completed final investigations into the causes of those historic 2020 fires.

PacifiCorp trial wraps up and goes to jury

After seven weeks of detailed analysis about topics as far-ranging as fire plumes, fire behavior, firebrands, and metallurgy, jurors will now determine whether the electricity provider PacifiCorp should pay out for thousands of properties destroyed after an extreme east wind event during the 2020 Labor Day fires in western Oregon. The trial started back in April and wrapped up on Wednesday, June 7 in Multnomah County Circuit Court in Portland.

KGW-8 News reported that Pacific Power attorneys said the company shouldn’t be responsible for climate change, other wildfires’ spread actually ignited fires named in the lawsuit, and power shutoffs were both rare and a last resort. Lawyers for the plaintiffs who lost homes in the fires said Pacific Power had ample warning that windstorms could generate severe fire risk, including conversations with agency officials about power line de-energization.

Plaintiffs’ attorneys also said that the wildfire investigations are inconclusive because Pacific Power destroyed evidence of downed power lines and erased internal communications about its findings; the only skype messages that Pacific Power didn’t erase were found in discovery in a folder labeled “purges.”

Fire crew on the South Obenchain Fire -- Inciweb photo
Fire crew on the South Obenchain Fire — Inciweb photo

OPB reported that plaintiffs in the class-action case are requesting $1.6 billion in damages. They allege that PacifiCorp acted negligently by refusing to heed the extreme weather warnings and shut down its power lines. Attorneys have drawn connections between PacifiCorp’s decision to keep power on and the fires that ignited and burned across western Oregon. The Labor Day fires of 2020 burned more of the Oregon Cascades than had burned in the previous 36 years combined.

GOES 17 image Labor Day fires, September 8, 2020
GOES 17 image of Labor Day fires, September 8, 2020 — click to view full-size NASA image.

“They have no real response to any of this,” attorney Cody Berne told the jury during closing statements. He said PacifiCorp started the fires. “They destroyed the evidence. And now they have come before you and are asking not to be held accountable.”

Beachie Creek Fire progression map
Beachie Creek Fire progression map. U.S. Forest Service map. Each line represents 24 hours of growth, but the map data begins on September 2, 2020 and does not show the preceding 18 days. It started in the black area.

Lawyers for those who lost their homes in the fires repeatedly asked the jury to hold the utility responsible for igniting the fires, according to the Statesman Journal. “This is a massive corporation that caused trauma to the state, destroyed entire parts of it, and they want you to find them responsible for nothing at all. They are taking no accountability — it’s unbelievable,” plaintiffs’ attorney Nicholas Rosinia told the jury on Wednesday. “They want you to say the survivors get nothing; their story doesn’t matter. Their homes and memories were erased … but to PacifiCorp that doesn’t matter.”

The full day of closing arguments wrapped up the trial in which jurors listened to testimony from witnesses and fire experts about whether PacifiCorp is liable for millions or even billions in damages after its power lines ignited the Santiam, Echo Mountain, South Obenchain, and 242 fires. Defense attorney Doug Dixon argued that the evidence showed limited reason to believe that the power lines caused the fires. PacifiCorp, which is owned by multinational corporation Berkshire Hathaway, took every reasonable precaution, Dixon said, and didn’t have the information to justify throwing entire communities into darkness during an emergency. “There’s no witness who came in and said based on the forecasts Pacific Power was receiving that it should have de-energized in this specific area of its service territory,” he said.

Jury to answer 23 questions:  As the jury of 12 begin deliberations, they’ll fill out a form with 23 questions. The first and most important is whether PacifiCorp was negligent — defined as acting without reasonable care — for any or all of the fires. Jurors just check the “yes” or “no” box for all four fires.

Nine of the twelve jurors must agree for a ruling in favor of the plaintiffs, otherwise the ruling will be in favor of PacifiCorp. Additional questions ask whether PacifiCorp’s alleged negligence caused harm, and whether the utility’s actions rise to the level of gross negligence — a lack of care that demonstrates reckless disregard for the safety or lives of others. Jurors will also discuss other questions before considering economic and other damages for the 17 lead plaintiffs who lost homes or property in the fires.

Labor Day fires of 2020 burned more of the Oregon Cascades than had burned in the previous 36 years combined

An analysis of the Labor Day 2020 wildfires in Oregon determined that the combination of high temperatures, unusually dry fuels, and strong winds occurring at the same time was unprecedented in the area.

2020 Labor Day fires in Oregon
2020 Labor Day fires in Oregon, research published in March 2021 by John T. AbatzoglouDavid E. RuppLarry W. O’NeillMojtaba Sadegh.

That flammable combination led to an unprecedented number of acres burned in the Oregon Cascades, about 11 percent of the mountain range, and more than the previous 36 years combined.

Below is a summary of research published last month titled, “Compound Extremes Drive the Western Oregon Wildfires of September 2020,” by John T. Abatzoglou, David E. Rupp, Larry W. O’Neill, and Mojtaba Sadegh.

“Several very large fires in western Oregon spread rapidly during an unusually strong offshore wind event that commenced on Labor Day in 2020. The Labor Day fires burned more area of the Oregon Cascades than had burned in the previous 36 years combined and very likely exceeded the area burned in any single year for at least the past 120 years. The fires damaged over 4,000 structures, led to several fatalities, placed over 10% of the state’s residents under some level of evacuation advisory, and contributed to the hazardous air quality across the Northwestern United States.

“A compound set of weather-related factors leading up to and during the fires facilitated these extreme fires. Unusually warm conditions with limited precipitation in the 60-days leading up to the fires allowed for fuels to become particularly dry and combustible by early September. Downslope offshore winds materialized during September 7–9, 2020 across the Oregon Cascades bringing exceptionally strong winds and dry air that drove rapid rates of fire spread. While neither of these individual factors was unprecedented, the concurrence of these drivers created conditions unmatched in the observational record.”

The authors called that the “Plain Language Summary.” To drill down even more into Plain Language, the conditions in Oregon were hot, dry, and windy.

The Hot-Dry-Windy Index (HDWI) is a new tool for firefighters to predict weather conditions which can affect the spread of wildfires.

It is described as being very simple and only considers the atmospheric factors of heat, moisture, and wind. To be more precise, it is a multiplication of the maximum wind speed and maximum vapor pressure deficit (VPD) in the lowest 50 or so millibars in the atmosphere. It does not consider fuel moisture.

In preliminary data that had not been peer reviewed when we wrote about it February 20, 2019, the HDWI was far more useful than the Haines Index in predicting the growth of the Chetco Bar Fire which  burned over 191,000 acres in Southwest Oregon in July, 2017.

The HDWI for Oregon’s Willamette Valley was far above the 95th percentile September 6-9, 2020. During the 10 days prior to September 9 it was above the 90th percentile on nine days. The strong winds occurred September 7-9, and most of the growth of the Labor Day fires was during that period.

Hot-Dry-Windy Index
Hot-Dry-Windy Index for Oregon’s Willamette Valley for the 10 days prior to September 9, 2020, and projected for September 9-15.
satellite photo fires smoke Washington, Oregon, and California
GOES-17 photo of smoke from wildfires in Washington, Oregon, and California at 5:56 p.m. PDT Sept. 8, 2020. The photo was taken during a very strong wind event.

Thanks and a tip of the hat go out to Bob.