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Wildfire Liability, Environmental Justice, and Climate Change

Wednesday, November 13, 2019

As climate change worsens, so does the risk of wildfires. This is especially so in the western United States, as seen all too well in California in recent weeks. Adding fuel to the fire are the increasing number of homes built near areas prone to wildfires, the wildland-urban interface (WUI), which increases the risk to people and their homes, makes wildfires harder to control, and prohibits fires from being allowed to burn naturally. More than 2,000 of California fires over the last 3.5 years were ignited by electric power utility equipment, and the resulting financial liabilities were so substantial that utility giant PG&E ended up filing for bankruptcy earlier this year. The state passed Assembly Bill 1054, which, among other things, creates a $21 billion Wildfire Fund to help pay victims’ claims more quickly. But for many, notes Myanna Dellinger in the November issue of the Environmental Law Reporter, the bill raises ethical and environmental justice concerns and should be rethought.

In Electric Utility Wildfire Liability Reform in California, Dellinger examines AB 1054 and acknowledges that it begins to provide much-needed reform. California utilities will continue to face strict liability for the costs of wildfires started by their equipment, but the law introduces a new certification process that shifts the burden of proving “reasonableness” away from the utilities. This inclusion of a reasonability standard, suggests Dellinger, may hint at a future shift to a fault-based standard to come. But the costs of wildfire, she argues, should be internalized not only by utilities, but to a greater extent by end-consumers who demand that electricity be delivered to fire-prone areas.

While some of the cost should fall on the end-consumers, Dellinger asserts that it is simply not fair to distribute it across a range of users who do not stand to benefit from choices made by some in “marked ignorance” of today’s climate realities. To distribute costs evenly among disadvantaged people in low fire-risk areas creates an environmental justice issue. Instead, she concludes that end-consumers who live in the WUI should internalize the full costs of their choices, and should expect to pay for the greater risk of fires they willingly and readily accept. While we have all contributed historically to climate change, and while its costs must be borne by somebody, that somebody, she argues, should be identified in an equitable manner.

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