By TED SICKINGER/The Oregonian/OregonLive
PacifiCorp’s reckoning over its alleged culpability for Oregon’s catastrophic Labor Day 2020 wildfires arrived Tuesday in Multnomah County Circuit Court.
Opening arguments began in a $1.6 billion class action lawsuit against the utility, with victims of four fires accusing PacifiCorp of being responsible for much of what they’ve called the largest man-made disaster in state history.
The Labor Day blazes in 2020 burned more than 1.2 million acres in Oregon, destroyed upwards of 5,000 homes and structures, and claimed nine lives. PacifiCorp is the primary defendant in litigation stemming from the fires. The Portland-based utility, Oregon’s second largest, didn’t turn off the power to any of its 600,000 customers during the windstorm and its lines have been implicated in six separate blazes, one of which started in its California service territory and burned into Oregon.
Jurors in the Multnomah County trial will determine PacifiCorp’s responsibility, if any, in four of those blazes: the Santiam Canyon fires east of Salem; the Echo Mountain Complex near Lincoln City; the South Obenchain fire near Eagle Point, and the Two Four Two fire near the southwest Oregon town of Chiloquin.
It’s a historic trial and regardless of the outcome, it’s likely to reshape the way Oregon’s electric utilities respond to increasing wildfire risks amid climate change, consistent drought conditions and a jump in the average number of acres burned annually.
Nicholas Rosinia, a lawyer for the plaintiffs, asked jurors to hold PacifiCorp accountable for its failure to shut off power on Labor Day 2020.
“These fires were predictable and preventable and devastated the lives of thousands of Oregonians,” Rosinia told jurors. “They had the knowledge, they understood, and they chose to do nothing.”
Doug Dixon, an attorney representing PacifiCorp, disputed that the utility’s lines caused three of the four fires and most of the resulting damage. He told jurors that PacifiCorp is a pioneer in mitigating wildfire risk, was on high alert before the windstorm and acted similarly to most other utilities that did not proactively shut off power.
“This case is about reasonable precautions that PacifiCorp takes to provide safe, reasonably priced power,” he said. “Climate change is here to stay. PacifiCorp has and will continue to take its role very seriously.”
Neither the state nor the U.S. Forest Service has released the official results of their investigations into the four Labor Day fires in question.
The trial will ultimately turn on questions of whether the utility’s power lines caused ignitions in four Labor Day fires; whether the extreme weather conditions that day were reasonably foreseeable; and if the utility was negligent in failing to turn off the power.
Rosinia kicked off the trial by walking jurors through the backdrop to that catastrophic day: a utility that had been repeatedly warned by state regulators for deficient tree trimming and vegetation management around its power lines; increasingly alarming forecasts about the coming Labor Day windstorm and extreme fire danger from the National Weather Service in the days before the fires; and a dire warning from the utility’s own contract meteorologist.
Fires ignited in PacifiCorp’s Washington service territory hours before the windstorm pushed south into Oregon, providing ample warning of what was to come, Rosinia said. Likewise, the first fire in PacifiCorp’s territory ignited outside the southwest Oregon town of Chiloquin hours before the other blazes started. Then came an 11th hour attempt by the state fire chief and then-Gov. Kate Brown’s chief of staff to encourage utilities to turn off the power.
At some point, Rosinia told jurors, a power shutoff was the only tool left to the utility to prevent ignitions, but he said PacifiCorp never seriously considered it, even as employees in its Portland headquarters were receiving real time reports of fires burning under its power lines around the state.
The opening statements provided the first look at how PacifiCorp plans to defend itself in the trial. The defense counsel tried to turn the plaintiff’s narrative on its head.
Dixon said the plaintiffs were attempting to pin the blame on PacifiCorp with an overly simplified, hindsight version of what happened, one lacking any context about the realities of climate change and the role that forest management has in causing and preventing wildfires.
Far from being unprepared, PacifiCorp was a pioneer in mitigating wildfire risk, the first in the Pacific Northwest to develop a wildfire preparedness plan, he told jurors. PacifiCorp was the first utility to identify areas in its service territory at high risk of wildfires and roll out a plan for public safety power shutoffs in those areas. It also heavily boosted spending on tree pruning in the two years before the fire.
“No utility (in Oregon) had ever initiated a public safety power shutoff before September 2020. It is truly a measure of last resort” that comes with its own risks to public safety, he told jurors. “A public safety power shutoff is like a sledgehammer” when what utilities really need is a scalpel, he said.
Dixon said PacifiCorp employees were on high alert, watching weather conditions throughout the pending windstorm, but that its own forecasts showed relatively benign winds in its service territory, including those areas deemed high risk. He said Oregon is home to 41 separate power companies, and only two – Portland General Electric and Consumers Power – either proactively shut off the power or left it off after the windstorm triggered a blackout in the Santiam Canyon.
PacifiCorp intends to challenge whether its power lines and the fires they ignited in the Santiam Canyon caused property damage to most of the plaintiffs in the class action suit. It blamed those damages on the Beachie Creek fire, a lightning-caused blaze that ignited miles away and smoldered for three weeks before blowing into a major conflagration amid the Labor Day winds. Dixon acknowledged that power lines did cause a fire at the Gates School that night but said the company will show there is no way it could have spread beyond a very contained area.
Likewise, Dixon said there was no conclusive evidence that PacifiCorp’s power lines caused Echo Mountain Complex near Lincoln City and that its power lines could not have caused the South Obenchain Fire near Eagle Point. Dixon acknowledged that a tree falling into a power line near Chiloquin started the 242 fire but said that tree was on U.S. Forest Service land 46 feet away from its power line and was not identified as a hazard tree during line inspections.
The trial is being held in Multnomah County because PacifiCorp, a subsidiary of Berkshire Hathaway, is headquartered in Portland. The trial will determine PacifiCorp’s liability and any actual property damages for 17 named plaintiffs, each of whom is also seeking $3 million in non-economic damages for emotional distress and suffering. The liability findings, if any, would then potentially apply to a larger class of some 2,400 individuals who had property damaged in the fires.
The trial is expected to last at least six weeks.
PacifiCorp also faces a separate trial scheduled for November in Douglas County Circuit Court involving some 215 families and seven timber companies who were victims of the Archie Creek fire and are claiming nearly $600 million in economic damages alone.
–Ted Sickinger; tsickinger@oregonian.com; 503-221-8505; @tedsickinger
A map compiled by the Northwest Interagency Coordination Center shows 2020 wildfire areas in Oregon. An ongoing lawsuit against PacifiCorp focuses on the Echo Mountain Complex, Beachie Creek, South Obenchain and Two Four Two fires.
