Already driven to the bankruptcy courts by liability over past wildfires, and facing further legal exposure when its equipment sparks new fires, Pacific Gas & Electric generally does not face liability for cutting power supply [Tyler Cowen, Bloomberg Opinion and related with reader comments; Ted Frank on Twitter] “California’s ratepayers like to imagine that someone else can pay the bill… In 2017, the commission refused to let San Diego Gas & Electric raise rates to cover its liability for wildfires that took place in 2007, which is why utilities are now terrified of any risk, however small, that their equipment might start a fire.” [Megan McArdle, Washington Post/Santa Cruz Sentinel] More: Ed Driscoll with link roundup including account of opposition to trimming of trees near PG&E power lines to reduce fire risk; earlier including link to Susan Shelley column.
An argument that policy and legal factors, including strict liability for wildfires, bars on recovering fire outlays in electric rates, and air-quality limits on prescribed burns, have brought California to its present blackout crisis. [Susan Shelley, L.A. Daily News]
The Sierra Pacific/Moonlight Fire scandal developed after the state of California and federal governments combined legal forces to go after a forest products company seeking to recoup millions of dollars spent fighting a fire that they claimed the company helped cause. Over the course of the ensuing litigation, judges charged a California state agency with “egregious and reprehensible conduct,” blasted the office of then-California Attorney General Kamala Harris for less-than-professional conduct, and brought in question the conduct of the U.S. Department of Justice under then-AG Eric Holder. We covered the story here, here, here, here, here, here, and here.
Now a new book on the story by author Joel Engel is out entitled “Scorched Worth: A True Story of Destruction, Deceit, and Government Corruption.” The author has an excerpt in the Weekly Standard (“What happens when the government lies about you in court?”). Here’s a fuller description of the book, from publisher Encounter:
To effect just outcomes the justice system requires that law enforcement officers, prosecutors, and judges be committed—above all—to doing justice. Those whose allegiance is to winning, regardless of evidence, do the opposite of justice: they corrupt the system. This is the jaw-dropping story of one such corruption and its surprise ending.
On Labor Day 2007, a forest fire broke out in California’s eastern Sierra Nevada and eventually burned about 65,000 acres. Investigators from the California Department of Forestry and Fire Protection and the United States Forest Service took a mere two days to conclude that the liable party was the successful forest-products company Sierra Pacific Industries (SPI), founded as a tiny sawmill nearly sixty years earlier by Red Emmerson.
The investigative report on the fire declared that SPI’s independent logging contractor had started the conflagration by driving a bulldozer over a rock, creating a spark that flew into a pile of brush. No fire had ever been proven to start that way, but based on the report the U.S. Department of Justice and California’s attorney general filed nearly identical suits against Emmerson’s company. The amount sought was nearly a billion dollars, enough to bankrupt or severely damage it. Emmerson, of course, fought back.
Week by week, month by month, year by year, his lawyers discovered that the investigators had falsified evidence, lied under oath, fabricated science, invented a narrative, and intentionally ignored a mountain of exculpatory evidence. They never pursued a known arsonist who was in the area that day, nor a young man who repeatedly volunteered alibis contradicted by facts.
Though the government lawyers had not known at the start that the investigation was tainted, they nonetheless refused to drop the suits as the discovery process continued and dozens of revelations made clear that any verdict against Emmerson’s company would be unjust.
Scorched Worth is a riveting tale that dramatizes how fragile and arbitrary justice can be when those empowered to act in the name of the people are more loyal to the bureaucracies that employ them than to the people they’re supposed to serve. It’s also the story of a man who refused to let the government take from him what he’d spent a lifetime earning.
The book can be ordered here.
Kathleen Parker [Washington Post/syndicated] on the Sierra Pacific/Moonlight Fire case, in which judicial findings of misconduct by the state of California have now mushroomed into allegations that the U.S. Department of Justice was party to a fraud on the court. Sidney Powell, author of “A License To Lie,” has been calling attention to the case for a while.
“In a blistering ruling against Cal Fire, a judge in Plumas County has found the agency guilty of ‘egregious and reprehensible conduct’ in its response to the 2007 Moonlight fire and ordered it to pay more than $30 million in penalties, legal fees and costs to Sierra Pacific Industries and others accused in a Cal Fire lawsuit of causing the fire. … Sierra Pacific, the largest private landowner in California, was blamed by state and federal officials for the blaze, with a key report finding it was started by a spark from the blade of a bulldozer belonging to a company working under contract for Sierra Pacific.” The company has contended that the cause determination was reached in haste and pursued with an eye to extracting legal proceeds for an agency-run settlement fund later found to be illegal. [Sacramento Bee; Robert Hilson, Association of Certified E-Discovery Specialists]
- High-profile Pennsylvania attorney John P. Karoly Jr. pleads guilty to tax evasion, faces possible prison term [Allentown Morning Call, Legal Intelligencer, Lehigh Valley Live, WFMZ, his website; earlier]
- Tennessee congressman pushes to overturn NBA age limit [Fanhouse, Sports Law Blog]
- $262 million in bankruptcy fees to date for Lehman, ultimate figure could approach $1 billion [Hartley]
- Complaint by gay altar server to Ontario Human Rights Tribunal menaces church’s autonomy [National Post via Box Turtle Bulletin]
- Lawsuit seeks shutdown of Domelights.com, private message board for Philadelphia cops that has had “racially offensive” posts and comments [CNN, Post @ Volokh] 2002 Sotomayor decision in Pappas v. Giuliani may be on point [Popehat, Kennerly]
- New Jersey organ scandal should come as little surprise given our failed policies on kidney donation [Satel, WSJ]
- Deputy D.A. arrested for drunk driving lands on her feet, hired by local DWI Resource Center [KRQE, Albuquerque]
- “San Diego Judge Denies Class Action Motions in 2007 Wildfires” [California Civil Justice]
Controversy continues over the extent to which litigation has tended to obstruct brush and understory removal as well as post-blaze recovery efforts in the fire zones: Damien Schiff (Pacific Legal Foundation), “Misguided litigation magnifies wildfires”, San Francisco Chronicle, Nov. 5); John Berlau, “The Environmentalist Fires”, American Thinker, Oct. 29; BioStock blog, Oct. 5. The Sierra Club defends environmental litigation in this Oct. 23 statement. Last year the Society of American Foresters last year released a study entitled “Forest Service Land Management Litigation 1989-2002”, which is available at the Society site. Earlier: Oct. 24, etc.
No doubt the search for policy lessons from the catastrophic Southern California wildfires (N.Z. Bear, CBS8) is in its early stages, and no doubt multiple contributing factors will wind up being implicated. Many, though, recall the controversy that hit the front pages after disastrous 2002 wildfires in Arizona, when it was revealed that Forest Service attempts to reduce fire risk by clearing underbrush, installing firebreaks and permitting logging of excessive growth had been heavily litigated and delayed in court by environmental groups (Jul. 1-2 and Jul. 12-14, 2002). Just last month scientists testified that efforts to “step up tree removal efforts and prescribed fire programs” were needed to counter growing fire risk (Ben Goad, “Speed forest thinning to ease fire threat, experts say”, Riverside, Calif., Press-Enterprise, Sept. 24). Michelle Malkin and readers have a big discussion (Oct. 23; & welcome readers from there). More from CEI’s Hans Bader and Robert Nelson and again from Michelle Malkin (per L.A. Times report, brush clearance and forest thinning credited with saving homes around Lake Arrowhead).
“Should the state and federal government encourage Californians to build houses in high-risk brush-fire zones? The brain says ‘no,’ but the policy means ‘yes.'” Matt Welch at Reason (Oct. 22; see our Oct. 31 post) further investigates the so-called FAIR insurance program, which (among its other flaws) tends to redistribute wealth to the residents of affluent Malibu and Topanga Canyon. Glenn Reynolds comments (Nov. 6).
“The first helicopter pilot to see the patch of flames that would become the catastrophic Cedar Fire radioed for aerial water drops, but state firefighters rejected his request because it came minutes after such flights had been grounded for the night. Within hours, the flames cascaded out of control and killed 13 residents between the mountains east of San Diego and the city. It eventually became the largest wildfire in California history. …
“The problem was that under state safety guidelines, no flights can go up into waning daylight. On Saturday, the cutoff was 5:36 p.m., said California Department of Forestry Capt. Ron Serabia, who coordinates the 12 tankers and 10 helicopters now battling the 272,000-acre blaze. The sun set that day at 6:05 p.m.” (Justin Pritchard, “State firefighters rejected air drop request for Cedar Fire because of night regulations”, San Francisco Chronicle, Oct. 30). (Via Arthur Silber). More: Matt Welch at Reason “Hit and Run” (Oct. 31) has a roundup of other instances in which bad policy decisions may have worsened damage from the wildfires: “near the top of my list is the 1968 state law that specifically orders insurance companies to pool together and offer homeowner policies to people who live in high-risk brush fire zones, a non-market last resort enjoyed by 20,000 people, most of whom live in the foothills of Southern California.” Yet more: Gregg Easterbrook (Oct. 31) on forest management and wildlands.