California Wildfires: What is Happening, What are the Impacts, What Can be Done

Picture from October 2017 of a group of convicted felons that received a dollar a day and credit toward early parole for fighting wildfires in Northern California. This program still exists today. By The Atlantic: https://cdn.theatlantic.com/thumbor/kCVeh1nm9GBlNdW9ohNHretZPAA=/0x158:3000×1846/720×405/media/img/mt/2017/12/AP_575957424636/original.jpg

By Kevin Boyle, JHBL Staff Member

2020’s been a hell of a year—literally. The state of California is currently in an all-out war with numerous wildfires. As of Monday, September 21, 2020, California is battling 27 wildfires, as well as one extended attack wildfire.[1] These fires have already burned over 3.6 million acres—roughly the size of the state of Connecticut.

Currently, over 19,000 firefighters have been deployed to face the wrath of the seemingly never-ending blaze. Since, August 15, fire have claimed 26 fatalities and destroyed over 6,400 structures. The California Department of Forestry & Fire Protection (CAL FIRE) is providing daily updates, and reported “crews continue to gain ground on these fires.” On September 20, 2020, CAL FIRE reported that crews responded to 25 new fires that day alone, and fortunately were able to contain them. Why are there so many fires? CAL FIRE blames the warm and dry conditions that exist across much of the state, and notes on its website that California “historically experiences some of the most devasting wildfires in the months of September and October.” However, the El Dorado wildfire in San Bernardino County was sparked by a ‘pyrotechnic device’ at a gender reveal party, CAL FIRE stated in a press release. This fire has since grown to cover 8,600 acres, as reported by CNN.[2]

Severe wildfires can directly injure humans. Pollutants such as carbon monoxide and ozone can cause health issues such as aggravating chronic lung and heart conditions and causing asthma. The most concerning ingredient of wildfire smoke is microscopic particles known as PM2.5, which can be inhaled then pass into the bloodstream. Short term effects of PM2.5 are irritation of the eyes, nose, and throat, coughing, and tightness in the chest. These symptoms can affect even relatively healthy people but the most at-risk groups are children, pregnant women, outside workers and the elderly, as well as individuals with compromised respiratory or cardiovascular systems. The LA Times reported that “[s]cientists also suspect that heavy smoke has lowered people’s defenses against the coronavirus and put them at greater risk of severe symptoms.” Long term affects are still relatively unknown. Few studies have been conducted, but a study on the residents of Seeley Lake, Montana, an area covered in smoke for 49 days in 2017, showed “they had decreased lung function for two years after the fires. The percentage of residents with below normal lung function more than doubled in 2018 and remained low a year later.” From this limited data, the outlook of the long-term effects on public health are not promising.

What is being done to address these issues? The California Department of Public Health said in a study on wildfire smoke in 2019, “[t]he most effective action the public can take to reduce the risk of health effects from the inhalation of wildfire smoke is to stay indoors in cleaner air and minimize the amount of time spent outdoors in smoky conditions.” Wearing N95 respirator/masks when outside can help protect people as well. However, the study highlighted that “[t]he impacts of specific exposure reduction methods on the general population, including people with a variety of medical conditions and social vulnerabilities, are largely unknown.”

Finally, in September 2018, Governor Brown signed Senate Bill 901 (“SB 901”), which allocated $200 million for CAL FIRE to use for forest health and fire prevention. SB 901 also helps alleviate the high electricity cost passed on to California residents as a result of wildfires. Using securitization, the bill is meant to help ensure the wildfire costs passed onto residential and commercial customers are as small as possible. The critics of SB 901 argue securitization is a bailout for utilities, but the securitization option is only available to the portion of wildfire liability where the utility was deemed not at fault, which consumers would be paying for anyway. Where a utility is found negligent, it will have to pay and cannot pass off any costs on consumers.

At the beginning of 2019, Governor Newsom issued an executive order—N-05-19-directing CAL FIRE to “recommend immediate, medium, and long-term actions to help prevent destructive wildfires.” There may be some legal consequences for actions taken by CAL FIRE under N-05-19, such as damage caused by its tactical burn practices, but the California Tort Claims Act provides the state “sovereign immunity.” Thus, a plaintiff would need to prove a government entity, or agency was responsible for a negligent act of an employee acting within the scope of their employment or the employee was carrying out some government function.

Legal remedies for adversely affected parties via wildfires have two potential routes to claim a remedy. First, under common tort law a party can sue in the event of a utility, which includes acting negligently or causing trespass and damage to property via a wildfire. Plaintiffs in California can sue utilities for punitive damages under California Public Utilities Code § 2106. In order to prevail, plaintiffs must show triable issues of fact proving malice on behalf of a utility. Malice is not “[m]ere carelessness or ignorance.”[3] In that case, the California Court of Appeals rejected plaintiffs’ arguments that PG&E’s “cavalier attitude towards public safety…justifie[ed] an award of punitive damages.”[4] Plaintiffs offered evidence of “the risk and compliance committee’s reporting structure…loosen hiring standards for seasonal CEMA inspectors, the soundness of the company’s audit methodologies and incentives,” but the court held “these criticisms, whatever their merits, do not amount to clear and convincing proof that PG&E acted with malice.”[5] The second route is specifically under California state law. Inverse condemnation is under Article I § 19 of the state constitution and is similar to eminent domain. Private property may be taken or damaged for public use, but only when just compensation has been paid to the owner. This legal theory has been used successfully against utilities such as PG&E. The PG&E settlement, for fires caused in 2017, announced in December 2019 was for roughly $13.5 billion.

Common tort law provides two specific theories: intentionality or negligence. A party must choose one theory. The damages that can be rewarded under tort law are broad in scope, which can provide relief to impacted parties for various harms done. A party can claim damages for personal injuries, emotional distress, pain and suffering, lost income due to inability to work and business profits due to inability to operate, damages to trees and landscaping, replacement costs for real and personal property. Under Inverse condemnation, a plaintiff’s damage award is for the fair-market value of the damaged property. A unique trait of inverse condemnation is if there is evidence showing a utility’s powerlines caused a fire, the utility will be per se liable for the property damaged with no need of negligence being shown. The benefit to that is a plaintiff could save expenses in having to establish negligence and would also not run the risk of the court not finding negligence. A drawback is damages are more limited. A plaintiff would be limited to property damages, and could not seek personal injury, emotional distress, lost wages and so on. The torts route is a more viable option for a plaintiff that has suffered significant harm in various aspects of their life, such as losing a home, being injured and unable to work. Both routes are litigated frequently in the state and federal courts of California.

Overall, wildfires can have devastating impacts on the environment and public health. Although there is ample case law regarding property damage from wildfires, we may see a new storm of tort litigation focused on the adverse health effects caused by the smoke and likely additional measures taken by the California legislature to mitigate the wildfire problem. Hopefully both avenues will lead to less damaging wildfires in the future.

[1] An extended attack fire is a wildland fire that has not been contained or controlled by initial response so more firefighting resources are arriving, en-route, or being ordered by the initial attack incident commander.

[2] CNN also reported a 2017 gender reveal party in Arizona caused a wildfire that burned almost 47,000 acres and caused more than $8 million in damages.

[3] See Pacific Gas and Electric Company v. Superior Court, 24 Cal. App. 5th 1150, 1170-71 (Cal. Ct. App. 2018).

[4] Id.

[5] Id.

Kevin Boyle is a second-year law student at Suffolk University Law School. He has interned as a research assistant for Professor John Infranca at Suffolk University Law School and at Fastcase, Inc., where he wrote about agriculture-based federal litigation. Kevin currently is interning with U.S. Magistrate Judge Marianne B. Bowler in the District of Massachusetts.

Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHBL or Suffolk University Law School.

Sources:

https://www.cdph.ca.gov/Programs/CCDPHP/DEODC/EHIB/EES/Pages/Wildfire.aspx#:~:text=Particulate%20matter%20from%20wildfires%20has%20been%20linked%20to,conditions%20are%20especially%20at%20risk%20from%20wildfire%20smoke.

https://www.latimes.com/california/story/2020-09-19/california-fire-smoke-health-risks

https://www.cdph.ca.gov/Programs/CCDPHP/DEODC/EHIB/EES/Pages/Wildfire.aspx

https://www.nbcbayarea.com/news/california/california-wildfires/the-potential-long-term-health-effects-from-smoke-and-how-to-stay-protected/2366216/

https://www.newsweek.com/air-pollution-california-wildfire-risk-health-1531308

https://www.fs.usda.gov/pnw/page/fire-effects-environment

https://wildlife.ca.gov/Science-Institute/Wildfire-Impacts

https://www.cnn.com/2020/09/07/us/california-fire-el-dorado-gender-reveal-trnd/index.html

https://www.nytimes.com/article/wildfires-california-oregon-washington.html

https://www.fire.ca.gov/daily-wildfire-report/

https://www.fs.fed.us/nwacfire/home/terminology.html#E