Baseball-sized embers fell as the 40-foot trees above ignited, blackened and cracked from the heat. His home had already begun to burn.
In slippered feet, Herde, 72, briefly sprayed his mobile home with a garden hose against the furnace-like winds before fleeing in his Toyota Corolla.
Labor Day 2020, five houses were destroyed in rural Graham, under the shadow of Mount Rainier. The Red Cross gave each resident a bucket and shovel to sift through remains, but for Herde, there was little to salvage.
The fire flattened his trailer, hollowed out his garage, made ash of fishing poles and power tools, sucked honey from Mason jars, and gutted the 1967 Impala he had recently restored. Fire twisted the car’s windshield into a cylindrical spike, like an unnatural icicle.
For nearly two months after the fire, Puget Sound Energy — whose power line sparked the first flames after a tree fell against it in a windstorm — continued to charge Herde for electricity to a home that no longer existed, yet did not restore power to the borrowed camping trailer he parked on his decimated property.
Puget Sound Energy has not otherwise been held responsible for the damage the 244th Command fire caused to Herde and his neighbors. And under Washington law, it is unlikely to be.
The state’s law and regulations are mostly silent about utility companies’ duty to prevent wildfire. Its regulators aren’t required to inspect power lines for fire risk, and have no power to impose fines if there are hazards. Utility companies don’t even have to report fires caused by their lines unless they cause serious injury or death.
Those gaps leave Washington homeowners with a stark reality: When power line fires burn down homes, residents often have little recourse.
Despite decades of damage caused by crackling hot power lines strung across the drought-stricken West Coast, and evidence that climate change will only bring worse wreckage, Washington lags behind California and Oregon in holding electric utilities accountable for fire.
The Washington Public Utilities and Transportation Commission says its oversight is focused on the economics of the state’s three investor-owned electric companies, and experts say the regulator is overmatched by the heft of the utilities.
Yet electrical infrastructure poses clear safety risks, causing more than 400 fires on state-owned land in the past five years alone, according to data kept by the Washington state Department of Natural Resources, although the state does not keep comprehensive wildfire statistics, and well over a thousand fires will never be assigned a cause.
In 2020, the acreage burned due to human-caused wildfire — the category that includes power line ignitions — was second only to California, according to data kept by the National Interagency Fire Center.
Washington has made recent commitments to address forest management and beef up firefighting resources, including passing a $125 million biannual forest health bill, but state lawmakers have dragged their feet when it comes to considering how utilities factor into the equation.
For the first time in June, the commission asked state utilities to submit plans for wildfire prevention and response, including how each company handles vegetation and whether it had plans to shut off power under extreme conditions.
Herde, retired and without insurance, spent a year living in a 174 square-foot camping trailer beneath brittle black trees, relying on a dorm-sized refrigerator that had a tendency to freeze his breakfast eggs and attract ants.
“I never assumed in my wildest life that the place would ever burn,” he said.
“You would think the way things happen in California, you’d think the power companies would learn from somebody else,” said Herde, referring to the power line-sparked Camp Fire that killed 86 people outside Sacramento in 2018. “My feeling is they didn’t give a rat’s ass what happened.”
California and Oregon, facing similar wildfire risk, have guidelines and requirements for companies to cut power in emergency situations, when conditions like high winds and drought escalate the risk of catastrophic fires, and they have stronger reporting requirements.
But neither Puget Sound Energy, the dominant privately owned utility in Western Washington, nor Avista, its counterpart in Eastern Washington, have plans to shut off power during extreme events — and the state utilities commission doesn’t require them to. PacifiCorp does have plans to shut off power, because in addition to the Yakima Valley and southeast Washington, it also operates in Oregon and California.
Shutting off power leads to other complexities and liabilities, including limiting critical access to air conditioning in extreme heat or medically necessary equipment during outages. But failure to do so also has devastating consequences, and it is increasingly becoming the industry standard.
When fire comes for your home, other forms of aid are hard to access. The Federal Emergency Management Agency has consistently refused to provide individual assistance to Washington residents displaced by the state’s most destructive fires since 2014.
And insurance policies are increasingly costly and difficult to obtain in Washington’s fire-prone regions, especially for older and manufactured, lower-income homes.
Some attorneys say the lack of state regulation can make lawsuits more challenging to bring against utility companies for smaller communities like Graham. How do you prove negligence if there is no law for a company to break?
“To be very frank, the moral of the story in the current state of Washington state law is don’t live next to power lines,” said Neil Stubbs, a personal injury lawyer in Tacoma. “The company might be able to burn down your house and get away with it.”
Known risk
Utilities are far from the only cause of wildfires, but the damage that can ensue when electrical lines ignite is undeniable, and the state has known the danger for decades.
It hadn’t rained in over a month when winds more than 50 mph gusted through Spokane in mid-October 1991. Dozens of fires, later dubbed Firestorm, destroyed more than 110 homes and resulted in the death of a six-months-pregnant woman outside her car. Inland Power & Light and Washington Water Power, which is now Avista, paid about $11.3 million to victims as a result of the harm caused by their power lines.
More than a decade later, in August 2005, 100 homes were destroyed in the Blue Mountains when a Columbia Rural Electric Association line sparked against a deadened tree and burned 52,000 acres.
The state’s regulatory landscape is complicated by numerous types of power companies, including dozens of regional nonprofit public utility districts, overseen by elected commissioners, and city utilities like Seattle City Light. This leaves latitude for how each utility behaves.
The Department of Natural Resources has the power to investigate wildfires on state land or those that use state resources, but do so only in order to collect the costs to Washington of fighting the fire when there is a negligent party.
However, power and money is concentrated in the state’s three investor-owned utilities: Avista, Puget Sound Energy and PacifiCorp, which are overseen by federal standards and the state’s UTC.
The UTC, with a staff of about 150 and a $66 million budget, oversees electrical utilities, natural gas, water, pipelines, low-level nuclear waste disposal and telecommunication. Investor-owned utilities, however, can see annual revenues in the billions; Puget Sound Energy’s most recent net income was $274 million, and Avista’s was $129 million.
PacifiCorp had net income of $1.5 billion in 2019 and 2020, but spent just $1.58 million in 2019 and was forecast to spend $22.6 million in 2020 preventing wildfire risk, according to financial statements from Berkshire Hathaway Energy, PacifiCorp’s owner.
The three-member UTC is focused on the cost and reliability of electricity. Annually, each company self-reports how it manages vegetation that could impact electrical operations, including the amount of brush and trees removed. Some companies report the age of their poles or lines regularly as well, according to a commission spokesperson.
But accidents only need to be reported if they result in injury or death, and the UTC does not independently inspect safety compliance or fine companies for missed inspections or potential wildfire dangers. As a result, implementation and inspection is left to each company and to federal oversight.
The UTC says it relies on federal regulators to conduct safety inspections. But since 2008, only a handful of federal fines were issued against Washington’s investor-owned utilities — less than $650,000 against Avista and Puget Sound Energy combined, and $4.3 million against PacifiCorp (it also faced a $42 million penalty for a 2012 wildfire that killed one person in Utah).
No violations have been issued by the North American Electric Reliability Commission for violations in Washington since 2014, the year wildfires began to escalate in the state.
“The utility always has more, richer, deeper information than the commission and its staff does,” said Philip Jones, a former Washington UTC commissioner of 12 years. That makes it easier for companies to “pick and choose” how information is presented, he said, and potentially bury problems the commission may not be attuned to.
The UTC is consistently underfunded, he said — primarily reliant on regulatory fees, federal grants and penalties — and lacks the technical expertise to rigorously oversee electric utilities on nuanced issues. And without enforcement power, he said, the commission has little motivation to turn its focus to safety investigations.
“I could see some people say, ‘Why should we investigate it if we can’t do anything at the back end, if we don’t have penalty authority?’” Jones said.
“Parties are so entrenched in their way of doing business it is difficult to get reform,” he added. “Sometimes it takes a major crisis to move not just the commission, but the utility, the Legislature, the governor, to recognize that we have to do things differently.”
Indeed, a serious gasoline pipeline accident in Bellingham in 1999, causing the deaths of a teenager and two children, prompted UTC to take over inspection authority of pipelines from the federal government, an approach that is now considered among the most aggressive in the nation.
“Currently, there are no state rules or laws for utilities to violate related to wildfire or vegetation management,” said Emilie Brown, a UTC spokesperson.
“The commission may decide to take further action in the future,” she said.
At a commission hearing in May, commission Chairman David Danner said he was aware that “in other states their commissioners are actually developing rules — doing a little more what I would call ... maybe this is wrong, to call it micromanagement.”
“Their involvement is certainly getting more significant, so we will be having conversations about what our role should be.”
Danner declined an interview with The Seattle Times but said in an email in December that Washington’s wildfire utility planning “isn’t really that much different than that in other Western states.”
Avista, Puget Sound Energy and PacifiCorp all said they have ongoing and evolving fire management plans and have increased how they invest in and deal with risks like vegetation, as well as identifying high-fire regions, calling safety a top priority.
A spokesperson for Avista said the company manually patrols electrical outages before restoring power during the fire season, and has begun using new tools for real-time identification of high-risk vegetation and trees. Puget Sound Energy also says it expanded inspection and removal of trees since the 2020 fire season, while PacifiCorp now has a full-time meteorology department.
“We proactively plan across our system to mitigate wildfire risk, even in the absence of regulation,” said Drew Hanson, a spokesperson for PacifiCorp.
But even in 2014, the West Coast was facing decades of inadequate forestry management that, coupled with increasing drought and heat, left it perilously vulnerable to even the smallest spark. Gov. Jay Inslee warned of the state’s need to address an impending “fire apocalypse.”
More than 386,000 acres burned in wildfires that year, with residents accusing the Department of Natural Resources, which manages state forestlands, of failing to act quickly enough to prevent harm.
The next year only eclipsed records, as the Okanagan fire complex became the largest in state history, a collection of catastrophic ignitions that caused thousands of people to evacuate. Among them was the Twisp River fire, which state investigators attributed to tree branches hitting an Okanogan County Electric Cooperative distribution line.
In the chaos of the fire, with resources already strained statewide, three firefighters died when their vehicle crashed amid blinding smoke. Smoke clouded the air as ambulances carried the bodies to the funeral home the next day.
The fire seasons helped lead the state to establish a Wildland Fire Advisory Committee and develop a 20-year strategic plan for forest health. But it made little mention of the problems posed by electrical infrastructure or the need for greater state oversight.
“We have been burning down half of towns for 10 years, but it is just Okanogan County and nobody cares,” said state Rep. Joel Kretz, R-Wauconda. “I have seen it happen and seen the decades it takes to recover — people living in travel trailers, they don’t have insurance, they don’t have the means.”
“In those days it was, ‘Oh, it’s just an Eastern Washington problem,’” he said, but, “This is a crisis and everybody is affected if we don’t do something different.”
California sea change
Three years ago, on a tinder-dry November morning in California, worn-out equipment on a Pacific Gas and Electric line sparked a fire that, within hours, became the most destructive in the state’s history. Meteorology reports had warned of high wind conditions, but the company kept its power lines hot, even though it had a plan to shut off power in extreme circumstances.
The Camp fire, and the fallout that would ensue for PG&E — including filing for bankruptcy as a result of fines, liability and legal costs that the company said exceeded $30 billion — sent ripples through the utility community, and prompted new regulations in California and Oregon.
Meanwhile, in 2019, Washington’s Legislature set up a task force to discuss problems. It later became a permanent advisory committee, but its recommendations and agreements — including developing a standard for managing dangerous trees and improving communication between utilities and the state — have yet to be signed or implemented two years later.
“What is driving us is liability. If we did cause a fire by not doing something we are liable,” said Jim Smith, manager of the Klickitat Public Utility District, who sits on the committee. “Most of this legislation is 20 years old or 30 years old when fires were not the problem they are today.”
On Labor Day weekend 2020 alone, power lines caused at least 44 fires in Washington, burning more than 147,000 acres, including the 244th Command fire, the Whitney fire, which destroyed 127,430 acres, and the Babb Road fire in Eastern Washington that rapidly flattened 228 structures in the towns of Malden and Pine City to ash.
Avista spokesperson Annie Gannon said the fires that weekend were particularly complex and challenging because they were “not in the highest risk areas.”
Still, the UTC and the Legislature did not respond aggressively. Instead, the UTC convened a series of informal public meetings and required companies to submit plans explaining how the utility companies prepare for wildfire risk, but without creating any formal standard for companies to abide by.
The commission did review Avista’s wildfire spending plan for the first time this year, after an investigation by the Department of Natural Resources found the company’s power line caused the fire that destroyed 80 percent of Malden.
Following two serious fires in 2018 and 2020, Avista said in its recent wildfire resiliency plan that it intends to spend up to $38 million per year by 2023 on wildfire mitigation in Washington and Idaho. The UTC has yet to review wildfire spending for the other investor-based utilities in the state.
Brown, the UTC spokesperson, said more requirements may be implemented by the commission as part of legislation passed in April, but exactly what these rules will be and whether they will address wildfire risk has yet to be established.
In contrast, the Oregon Public Utility Commission took swift action in response to the damage caused by the Labor Day fires there, where more than a million acres burned and nine people died. The weekend set into motion rule-making for utilities, requiring them to develop plans before the 2021 fire season for risk-based wildfire mitigation, fire reporting and public safety shut-off protocols.
There is nothing in Washington’s administrative code addressing utility wildfire prevention experts and lawmakers said.
“We are late to addressing it,” said state Sen. Christine Rolfes, D-Bainbridge Island.
“The utility oversight was just a failure of imagination, and it wasn’t until the disasters in California that people started saying, ‘Huh, this could happen here,’” she said. “The fires in 2020 illustrated that we hadn’t done that work soon enough.”
Trespass by fire
Fire is not only an act of God, but one — attorneys have argued and courts have established — equally corrupted by man. As a result, in the absence of state oversight, the main recourse left to residents who lose their homes is the legal system.
Courts have long held that the operation of electric utilities — transmitting hundreds of thousands of exceptionally hot volts of power through thin, vulnerable rods above communities and wilderness — is an implicitly dangerous act.
“Utilities must ‘exercise a very high degree of care and prudence because of the dangers which lurk in electricity,’” the Oregon Supreme Court determined in 1932.
This principle is embedded in California’s constitution, dating to 1879, under the doctrine of inverse condemnation. It says the public is entitled to fair compensation when a public use entity, like a utility, damages someone’s property, regardless of fault.
“If PG&E did not have to pay for the wildfire they would have no impetus to clean up their act,” said Mike Danko, a California trial lawyer who represented victims of a PG&E gas explosion and power line wildfire. “The only way to control their conduct is not through regulation, it is by taking the profit out of wrongdoing.”
In Washington, no such law exists. Not only does the state’s commission have less enforcement muscle than California, legal remedies are more limited, Danko said.
“There is never a guarantee of power [companies] exercising their discretion to make things safer,” he said. “The recourse is political or public retribution.”
Matthew Preusch, an attorney involved in a $600 million wildfire litigation against PacifiCorp in Oregon, said the lack of Washington state rules requiring power shut-off plans in extreme weather is striking, and could be grounds for arguing Avista was negligent in the Malden fire. His firm is investigating such a lawsuit.
“How many cities have to be wiped off the map before a utility acknowledges that utility-caused wildfires are a risk they have to plan for?” he asked.
Still, some attorneys say establishing negligence is easier to prove when a state has clear standards in place. Conversely, some public utility districts argue the lack of state standards is exactly what leaves them unintentionally vulnerable to liability.
“The devastating effect of these fires has proven to be so severe in other states you look at it and say, ‘If this were to happen here, and we hadn’t done anything, we wouldn’t feel very good,’” said Steve Wright, general managers of the Chelan County Public Utility District, an area with 52,000 customers and one of the highest fire risks in Washington, on the dry, eastern side of the mountains.
Shutting off power is complex, requiring public warnings and considerations for medically sensitive individuals, but Wright’s PUD implemented a shut-off plan on its own.
Several Washington lawmakers say some investor-based utilities oppose more regulatory scrutiny but in private meetings have instead sought to gain liability protection under state law.
“It has come up in a couple of conversations,” said Rep. Larry Springer, D-Kirkland. “I would expect utilities are going to look for some level of liability protection ... but where that line is will be a very fine balancing act.”
Insulating utilities from liability, however, could make lawsuits involving small fires like Graham’s economically unrealistic, said Stubbs, whose firm considered but didn’t file a lawsuit against Puget Sound Energy for the 2020 fire.
“You are dealing with the David-and-Goliath issue,” he said. “You have an immeasurably powerful company battling citizens.”
“Now I never look”
Past roadside fruit stands, a large Christian church adorned with a 20-foot white cross, and low, winding foothills, much of 244th Street appears ravaged by time and neglect though the fire that burned occurred just over a year ago.
With the help of a neighbor, Herde applied for local assistance from Pierce County and bought a new manufactured home in time for this winter. But the fire left many with a bitter taste.
Randy Johnson saw the moment of the first spark, when a tremendous gust of wind knocked a tree sideways into the power line behind his house. His wife, Kim, was the first to call 911 and recalled fleeing through their neighbors’ backyard, the dirt road already enveloped with towering flames. She remembers the sound of an explosion she thought was their house, but turned out to be her daughter’s Mazda, full of her belongings, in the garage.
She remembers how the skin of her neighbor’s horses charred in the heat. The agony of a neighbor whose mother’s ashes burned alongside other possessions. How the fire trucks arrived without water.
Kim stopped leaving the house, too depressed by the barren landscape outside her front door. Puget Sound Energy declined to replace the burn-scarred utility pole outside her back gate, saying it didn’t pose a safety hazard. But Johnson saw it as kindling for the next fire.
“This used to be full of trees. We had shade,” she said. “Now I never look. It’s too sad.”
By late fall, they’d put up a “For Sale” sign outside their metal front gate near a massive American flag and moved to the Midwest.
___
(c)2022 The Seattle Times
Visit The Seattle Times at www.seattletimes.com
Distributed by Tribune Content Agency, LLC.
