8 minute read
CLOSING ARGUMENTS
Stop Criminal Thinking at PG&E to Prevent Wildfires and Protect Public Safety
BY CATHERINE J.K. SANDOVAL, PROFESSOR OF LAW, SANTA CLARA LAW
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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.
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
the root causes of its wildfire ignitions rather than resorting to “victimstance” that attempts to shift blame to others3 and fails to recognize criminal conduct.
PG&E is California’s largest utility and has a statutory responsibility to provide safe, reliable service at just and reasonable rates. Its 16 million customers and millions of California residents depend on PG&E to safely and reliably maintain electric and gas facilities that power modern life. PG&E’s Board of Directors and officers bear fiduciary duties of care and loyalty. The public, PG&E’s regulators, and the company’s shareholders, directors, and officers share a common interest in transforming PG&E into an organization with a strong and effective safety culture and practice.
In 2014, when I was serving as a commissioner of the California Public Utilities Commission (CPUC), my colleagues and I imposed a $1.6 billion penalty against PG&E for causing the San Bruno natural gas explosion in violation of the California Public Utilities Code. Our decision required PG&E to invest more than $850 million at shareholder expense to improve its natural gas system’s safety. We also opened an investigation into PG&E’s safety culture, increased disclosure requirements, and adopted a risk-based decision-making system requiring utilities to align ratepayer investment proposals to risks.
To protect people and the environment, an effective safety culture prioritizes safety over competing goals. (See Nuclear Regulatory Commission, Safety Culture | NRC.gov). PG&E should be a high reliability organization whose rigorous safety culture anticipates, detects, responds to, and learns from any safety risk or failure.4 High reliability organizations recognize safety challenges are not static but require adaptation, resiliency, and safety commitment.
PG&E contends it is a different company since the San Bruno explosion. Yet PG&E clings to dangerous practices that undermine reliability and safety. These include: 1) running equipment to failure while downplaying the role of records and asset age; 2) poor inspections, recordkeeping, and analysis; 3) inappropriate adherence to standards developed for other regions, time-periods, and conditions; 4) poor information management, gathering, analysis, sharing, and disclosure, and 5) failure to learn lessons from incidents and near misses.
The 2021 Dixie Fire revealed PG&E’s risky practices. Before the Dixie Fire, PG&E ranked that electric circuit as the 11th highest risk of 3,635 high-wildfire danger area circuits. PG&E proffered no evidence that it shared that risk assessment with its employees who could have turned off the power with the touch of a button when the power spike was first reported. PG&E’s failure to share information with itself set ablaze almost one million acres including federal forests, burned more than 1,000 structures including homes, and destroyed the town of Greenville, California.
CalFire determined PG&E caused the Dixie Fire when a tree fell on a line which PG&E kept energized for more than ten hours after the first trouble signals. PG&E observed this “tree was one of more than 8 million trees within strike distance to PG&E lines.” PG&E fails to recognize that its practices grew those risks. PG&E blamed climate change for increasing hazards. Yet, PG&E bears the duty to respond to climate change, longer fire seasons, dead and diseased trees, and other service-area conditions. Utility-sparked wildfires also contribute to climate change, releasing carbon dioxide, methane, and black carbon, while emitting toxins and endangering public health and safety. To end this dangerous cycle, PG&E must adjust its thinking, culture, and practice.
Technology and changes in forest and wildland management are important but insufficient to protect communities and the environment from PG&E’s risky practices. Fundamental safety improvement requires PG&E to stop running equipment to failure. The company must take responsibility for the dangers its outdated practices, dangerous short-cuts, and poor follow-up create.
PG&E should fight wildfire with better data. The utility must improve its knowledge management, modernize information gathering, enhance system signaling, and increase communication and information sharing. It should deploy drones and other technology to promptly identify, track, communicate, respond to, and avert danger.
PG&E could lose its utility license if its safety results and regulatory compliance fail to improve. In April 2021, the CPUC put PG&E in step one of a six-step enhanced oversight process. PG&E’s conduct burned more than 1,000 structures in the Dixie Fire, a hazard-level that should trigger enhanced oversight and license review. The CPUC should promptly increase its oversight to improve PG&E’s recordkeeping, physical and information systems, accountability, and safety culture.
To protect public safety, the CPUC should immediately order PG&E to institute training through an independent safety monitor to identify and rectify patterns of criminal thinking and stop dangerous practices. PG&E’s Board of Directors should not wait for the CPUC’s directive but should exercise its duty of care by implementing criminal thinking error training and holding PG&E executives accountable for their disastrous decisionmaking and conduct. Public safety depends on PG&E ending criminal thinking that drives dangerous behavior.
Catherine Sandoval is a tenured law professor at Santa Clara Law who teaches Energy, Communications, Antitrust, and Contract Law. She served a six-year term as a Commissioner of the California Public Utilities Commission. As the Director of Santa Clara Law’s Insurance Law Institute, she represented pro bono PG&E ratepayers in PG&E’s federal criminal probation proceeding.
NOTES 1 United States Court, Post Conviction Risk Assessment (PCRA), Post
Conviction Risk Assessment | United States Courts (uscourts.gov) (last visited
June 14, 2020). 2 Glen D. Walters, The Psychological Inventory of Criminal Thinking Styles (PICTS): A Review and Meta-Analysis, 3 Assessment (Sept. 9, 2002), 27891, doi: 10.1177/1073191102009003007, https://pubmed.ncbi.nlm.nih. gov/12216785/. 3 Brian Loebig, Criminal Thinking Therapy Resource, https://www.criminalthinking.net/about-us/. 4 See e.g., Patient Safety Network, Sept. 7, 2019, High Reliability | PSNet (ahrq. gov).
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