State AG: If PG&E caused wildfires by “gross deviation” of safety norms it could have committed serious crimes - Chico Enterprise-Record

SAN FRANCISCO — Pacific Gas and Electric could have committed serious crimes such as manslaughter or murder if it is found to have caused wildfires by failing to properly maintain its equipment to a point of a “gross deviation” of what it should have done, a state Department of Justice lawyer wrote in a brief to a federal judge that was released late Friday.

“If PG&E caused any of the fires, the investigation would have to extend into PG&E’s operations, maintenance, and safety practices to determine whether criminal statutes were violated,” Deputy Attorney General Nicholas Fogg wrote to U.S. Court Judge William Alsup. But a key element in deciding to file criminal charges would be attempting to determine the “mental state” of the utility giant, Fogg added, a potentially difficult challenge.

Alsup, who oversees PG&E’s felony probation after its criminal conviction in the San Bruno gas-line explosion on charges of violating federal pipeline safety regulations and obstructing an investigator, ordered the justice department to provide him with the brief as he probes whether the utility violated the probation terms.

He has also ordered PG&E to “provide an accurate and complete statement of the role, if any, of PG&E in causing and reporting the recent Camp Fire.” It was unclear Friday when the utility might respond. Cal Fire has yet to issue the findings of its investigation of the cause of the blaze in Butte County, the most destructive in state history.

Numerous lawsuits brought by survivors and relatives of many of the 86 people who died in the fire allege that it was caused by structural failures of a high tension tower near the town of Pulga during high winds the morning of Nov. 8. The suits allege that the tower was not properly maintained.

The brief comes a week after the state Public Utilities Commission announced it will consider removing PG&E’s directors or even breaking up the utility because of serious concerns over safety issues.

State investigators have found that PG&E equipment was to blame for 17 wildfires last year that ravaged the North Bay and that 11 of those failures violated safety rules.

Fogg wrote in the brief that the state is only pointing out the potential crimes that a utility could commit and has made no findings as to whether crimes actually occurred.

“California law makes it a felony to “recklessly set fire to or burn or cause to be burned forest land or a structure,” Fogg wrote. “Recklessness, as required for the felony means the (awareness) of and conscious “disregard of a substantial unjustifiable risk” that conduct will cause forest land to burn.

But that would take a finding that “a gross deviation from the standard of conduct” of a reasonable person in the same situation” and “a conscious disregard of risk,” Fogg wrote. The recklessness of those acts would have to be “determined by degree” and the utility’s mental state looked at as “a sliding scale” that shows higher culpability based on the seriousness of the alleged offense.

“PG&E could have committed involuntary manslaughter, starting a fire without permission, and failing to keep its lines and poles clear of vegetation. At recklessness as defined (by the law) PG&E could have committed the felony of unlawfully starting a fire. And at malice, PG&E could have committed murder,” he wrote.

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