Utility access bill defeated
SB 369 would have deleted landowner recourse to seek damages for trees cut down by utility companies. It was defeated shortly before the holiday weekend.
September 7, 2022 — A Senate Bill that would have increased utilities’ access to private lands and eliminated any possibility of landowner relief for damage caused by the removal of trees went down in defeat just a few days before the holiday weekend.
PG&E contractors have been working under a program the company calls enhanced vegetation management, cutting down trees around powerlines across the state. The program is ostensibly to reduce the risk of wildfire, though a Sierra Club white paper argues that aging infrastructure and uninsulated wires are the real dangers.
Kevin Collins started wrangling with PG&E in 2018, when he says the company allowed a live wire to arc outside his home in Santa Cruz for a full day. After the 2020 CZU Lightning Complex Fire in Santa Cruz and San Mateo Counties, he began to drive around the burn zone in an effort to understand what had happened.
“PG&E came in, and they used all kinds of equipment,” he recalled. “I never realized that a wildfire would be an economic engine for contractors to rush in and make a lot of money in the aftermath…you might call this disaster capitalism. There was an immense effort to drop trees all throughout the fire zone. Some of these trees were in riparian corridors. Many were of course dead. But a lot of them were alive. And there was no environmental review. CalFire was caught by surprise. The contractors just showed up and started felling trees, all over this fire zone.”
One CalFire inspector, Richard Sampson out of Felton, began issuing notices of violation to PG&E and its contractors, citing them for everything from driving heavy trucks across streambeds to failing to maintain their fire boxes properly. Michael Ritter, PG&E’s senior director of vegetation management operations, sent him a frosty letter at the end of 2020, arguing that the utility’s activities are essentially not under CalFire’s purview because the work does not meet the definition of a timber operation and it is not being done for a commercial purpose. Therefore, Ritter informed Sampson, “such work does not require a utility exemption,” an abbreviated permit from CalFire.
The program continued across the state.
Then, last year, SB 396, the Electrical Line Access Authorization, appeared on the horizon. Opponents, including Collins, feared that the proposal would delete a provision in the existing code that gave landowners any ability to demand compensation for damage to their property values by utility contractors removing trees. It would have codified in law that no state agency would have oversight over the enhanced vegetation management program.
The matter of oversight remains largely theoretical, since most landowners currently don’t know how to contest the utility’s actions, or what it means for their objections to be heard. For example, PG&E is required to give notice that they intend to start work and which trees they plan to take down, but how they are supposed to go about giving notice and what the exact requirements are, have never been rigorously defined.
It’s hard to say if the defeat of SB 396 improves the existing situation for landowners. A provision in Public Resource Code 4296, effective as of January 1, 2019, states that, “The clearances obtained when the pruning (of hazard trees) is performed shall be at the full discretion of the person that owns, controls, operates, or maintains any electrical transmission or distribution line…” Collins noted that, “That has not changed, unfortunately.” The Public Resource Code is part of the Forest Practice Act, which is administered by CalFire. Sections of the Code, including PRC 4296, are featured prominently in PG&E’s informational literature about the laws and regulations governing its vegetation management practices.
Collins acknowledges that the defeat of SB 396 is a narrow victory for landowner rights. But he views it as a promising start. While landowners have retained the right to sue PG&E for damages, he pointed out that, “If anybody knows anything about legal proceedings, suing PG&E would cost a fortune, far more than most landowners could ever afford. So it’s cold comfort. Nevertheless, we did stop that provision from becoming state law. And we did stop the state from explicitly stating that no state agency has jurisdiction to restrain PG&E. It doesn’t say that any will review the enhanced vegetation management, however. So this is a narrow victory. But as far as we know, it’s the first time that any private citizens and, in this case, the timber industry and county Boards of Supervisors…has ever stopped PG&E in the Legislature. So in that sense, it’s quite important.”
The Mendocino County Climate Action Advisory Group drafted a letter that the Board of Supervisors sent to Governor Gavin Newsom in April of this year, requesting a temporary halt to the enhanced vegetation management program, stating that “PG&E’s lack of line and equipment maintenance is the primary cause of PG&E culpable fires, not tree falls.” The letter also requested that the Governor ask PG&E to provide a full legal and scientific explanation for the program to landowners and members of the community, complaining that “There has been no discussion of the many alternatives to removing trees.”
In the defeat of SB 396, PG&E may have been an ally. Collins and his fellow advocates had a copy of the letter that Michael Ritter, of PG&E, sent to CalFire Inspector Richard Sampson in 2020, citing “a disagreement on the interpretation of the applicability of the Forest Practice Rules.” They sent it to the members of the Senate Standing Committee on Energy, Utilities and Communications, and shared it with senatorial staff during personal meetings. “It’s important to realize that in a previous version of 396, text was inserted saying that this utility vegetation management will be subject to the Forest Practice Rules and the Coastal Act,” Collins explained. “Somebody was trying to fool the Legislature into thinking that there would be regulatory oversight. But PG&E cut a hole through that with a machete, by writing to Richard Sampson to tell Richard that he had no authority over PG&E’s vegetation management.”
Some timber industry representatives appeared to be taken aback by PG&E’s letter, as well. Though his organization supported an earlier version of the bill, Matt Dias, the President and CEO of Calforests, the California Forestry Association, wrote in a letter to the Senate committee in late August that “PG&E’s insistence that provisions of the FPA (Forest Practice Act) and FPRs (Forest Practice Rules) are not applicable to its vegetation management work done on privately owned timberlands and insinuation that it will disregard those provisions while it attempts to negotiate a regulatory fix between the Board of Forestry and Fire Protection and Public Utilities Commission has forced us to reconsider our position and move back to an oppose position. It appears that, notwithstanding the requirements of this bill and existing law, that PG&E views notices of violation or pursuits of civil penalties from Cal FIRE for non-compliance as a cost of doing business and preferable to compliance with the FPA.”
For Collins, the next step is to submit evidence to the Senate committee about how utility fires really start, in hopes that future legislation will be informed by an understanding of the need for modern, well-maintained infrastructure. He said he hasn’t seen evidence that the Governor is concerned about the “massive tree-falling all across California,” but the defeat of SB 396 has given him some optimism. “We had no money to work with,” he recalled. “We’re up against a huge corporation. And we managed to persuade the Legislature that this was not a good idea. And it didn’t benefit the people of the State of California.”