CLOSING ARGUMENTS
Stop Criminal Thinking at PG&E to Prevent Wildfires and Protect Public Safety B Y C AT H E R I N E J . K . S A N D O VA L , P RO F E S S O R O F L AW, S A N TA C L A R A L AW
Pacific Gas & Electric Company (PG&E) is responsible for the deaths of at least 121 people since 2010. After it ignited a natural gas explosion in San Bruno, California that killed eight people, injured 58, and damaged 108 homes, PG&E was convicted of criminal violations of the Natural Gas Pipeline Safety Act and obstructing the National Transportation Safety Board’s investigation. PG&E was sentenced to pay the maximum fine and five years of federal criminal probation, which ended in January 2022. Its first probation condition forbade PG&E from committing other federal, state, or local crimes. Judge Alsup supervised PG&E’s criminal probation and lamented that “in these five years, PG&E has gone on a crime spree and will emerge from probation as a continuing menace to California.” To protect public safety and stop wildfires, PG&E’s regulators, Board of Directors, and executives must identify and stop corporate criminal thinking that drives PG&E’s dangerous conduct. Criminal thinking often precedes the crime. An individual convicted of the felonies PG&E committed would have undergone federal Post Conviction Risk Assessment in prison and received training to identify and break criminal thinking patterns.1 Federal probation and parole recognizes eight major patterns of criminal thinking developed by psychologist Glen D. Walters: Cognitive Indolence, Mollification, Cutoff, Entitlement, Power Orientation, Sentimentality, Superoptimism, and Discontinuity.2 Criminal thinking error training was developed for individuals and has not been applied to corporations. Corporations, including those that repeatedly commit crimes, are not obligated as part of their criminal sentencing to identify and cease practices rooted in criminal thinking. That gap endangers public safety and spurs repeated corporate crimes. As pro bono co-counsel in PG&E’s federal criminal probation proceeding on behalf of Amici PG&E ratepayers, Alex Canarra and Gene Nelson, my co-counsel Michael Aguirre, Maria Severson, and I argued that PG&E’s Board, executives, employees, and contractors should be required to undergo training to identify and stop criminal thinking patterns. The research of Santa Clara Law students and Santa Clara Law Insurance Institute volunteers Robert Murillo and Justin Seo J.D. ’21, Rosa Rico, and Kasey Kagawa J.D. ’22 greatly assisted Amici’s work. Although Judge Alsup did not modify PG&E’s probation to require such training, Amici urged PG&E’s Board of Directors and regulators to promptly implement criminal thinking error training to protect public safety. 24 DISCERN | SPRING 2022
Above, a home burning in the 2018 Camp Fire that destroyed the town of Paradise, CA. At left, a line hook failure from the Camp Fire. Photos courtesy of ABC10.
PG&E sparked at least one major wildfire during each year of its federal criminal probation. While on probation, PG&E pled guilty to 85 California state felonies including 84 counts of involuntary manslaughter for those killed in the 2018 Camp Fire that destroyed the town of Paradise. After Sonoma County brought criminal charges against PG&E for the 2019 Kincade Fire, it joined counties afflicted by the 2021 PG&E-ignited Dixie Fire in a civil settlement that included remedies not available under California criminal law. PG&E continues to face criminal charges alleging involuntary manslaughter, unlawful fire start, and environmental crimes for the 2020 Zogg Fire which killed four people. In response to these indictments, PG&E argued that prosecutors should not “criminalize” the company’s behavior. PG&E’s plea misses the legal, moral, and safety point. There is no debate that involuntary manslaughter and recklessly causing a fire are crimes. To be convicted of involuntary manslaughter, the primary question is whether a “reasonable person” would view PG&E’s actions as reckless, creating a high risk of death or severe bodily injury. Federal or state charges for recklessly causing a fire do not require intent to set the fire. Poor vegetation management (failure to trim or remove trees dangerously close to power lines) or inadequate response to power fluctuations (such as information sharing failures or unreasonably delayed response) may be sufficient to support criminal convictions. PG&E should address
