Loophole May Explain Regulators' Inaction Over Wildfires

A two-decade old state regulatory loophole may threaten regulators’ ability to fine PG&E for any of the North Bay wildfires, NBC Bay Area’s Investigative Unit has learned.

“A standard like this is going to make it less likely that you’re going to be able to protect against fires – there’s no doubt about that,” said Steven Weissman, a former regulator with the California Public Utilities Commission.

The apparent loophole is part of the CPUC’s vegetation clearance standard, known as Rule 35, which specifies how close trees can be allowed to remain near utility power lines. Some 50 million trees grow along PG&E’s 100,000 mile network of power lines crisscrossing Northern California.

Since any one tree near a line has the potential to spark a wildfire, Rule 35 calls for an 18 inch buffer zone between trees and lines and that clearance extends to four feet in high fire risk zones.

But there’s an exemption for “mature” trees – even in high-risk fire zones -- to grow as close as six inches from power lines.

The exemption was incorporated when the vegetation clearance rule was first adopted by the commission in 1997. At the time, PG&E argued to regulators that without an exception, the utility would have to needlessly cut down 54,000 mature trees that posed no safety risk.

In response, the commission exempted any “mature” tree from what was advertised as an 18-inch clearance standard, as long as it had limbs and a trunk sturdy enough not to sway or come closer than six inches to a line in “reasonably foreseeable local wind and weather conditions.”

Weissman says the resulting standard is not only watered down and vague, “it doesn’t really pass the logic test -- skyscrapers sway in heavy winds -- how many trees are not going to sway in a heavy breeze?”

NBC Bay Area showed the exemption to State Sen. Jerry Hill, who has long attacked the utilities commission for a lack of oversight. He wondered whether it could explain regulatory inaction in the North Bay fires in 2017, despite Cal Fire having blamed many of them on trees hitting power lines in high winds. PG&E has argued those winds were unforeseeably fierce – an assertion Hill suspects could be tied to the loophole.

“A free pass, is what it looks like to me,” Hill said about the exemption. “A branch within six inches of a high voltage wire -- that could easily, by wind or other conditions, cause a catastrophe or disaster.”

At a hearing on March 12, Hill pressed state regulators about whether the loophole applies to high risk fire zones, exempting the utility from the recently imposed four-foot clearance standard between trees and power lines.

“Am I interpreting that correctly?” Hill asked Lee Palmer, CPUC’s deputy director of safety enforcement.

“Yes, you are interpreting that correctly and it was an oversight,” Palmer said.

Hill then asked whether the loophole may be behind the commission’s lack of action against the utility to date, despite Cal Fire’s having blamed many of North Bay fires on tree contact with PG&E powerlines.

“It’s almost, I want to say, a get out of jail free card,” Hill said.

“I don’t know if I would go that far senator,” Palmer said, but did not elaborate on its impact on the commission’s North Bay fire case. Palmer assured Hill that regulators are looking at closing the loophole going forward, and utilities will now be cutting trees farther away from power lines going forward “with the expectation that change is coming to Rule 35. ”

In a recent filing with a federal judge overseeing its probation in the San Bruno gas explosion case, PG&E said that cutting trees to a strict buffer zone could take a decade and cost as much as $150 billion.

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