02 January 2022

Published by https://www.seattletimes.com/

USA – GRAHAM, Pierce County — Darrell Herde lived on 244th Street for nearly 30 years, never considering the risk of wildfire. Not until the knock on his door when, still bleary-eyed with sleep, he opened it to see a firefighter and smoke.

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.