FIGHTING FIRE WITH FIRE-HARDENED HOMES: THE ROLE OF ELECTRIC UTILITIES IN RESIDENTIAL WILDFIRE MITIGATION

Wildfires throughout the West are a drastic consequence of climate change. In California especially, the costs of wildfires have become unbearable. Current statutory solutions, such as Assembly Bill 1054 (AB-1054), focus on apportioning liability for damages between insurance companies, government programs, and the electric utilities that often spark the fires, but legislation often fails to address the factors that make damages so astronomical in the first place. In the Wildland–Urban Interface, where forests and undeveloped land meet infrastructure and housing, many older, uninsured homes in low-income communities are built with flammable material, which accelerates the intensity and spread of wildfires. These homeowners, however, lack the funding and resources necessary to retrofit their homes to fire-safe standards and updated building codes. When more wildfires inevitably start, these homes will be completely destroyed, the costs of which will be borne by the entire state.

This Note offers a statutory solution that moves beyond shifts in liability. It argues that electric utilities in California should be required to engage in residential wildfire mitigation in the homes of their lowest-income ratepayers in order to be eligible for wildfire relief funds provided by AB-1054. Situating the Wildland–Urban Interface as a “commons” that requires collective investment, this Note proposes that each electricity user pay a statutory surcharge to fund equitable mitigation investments that will ultimately reduce California’s overall wildfire-related costs. It finds precedent in California’s earthquake home-retrofitting program and utility-run energy efficiency programs to argue that electric utilities are optimally situated to increase the safety of their most vulnerable citizens and are under a regulatory mandate to do so.

* J.D. Candidate 2022, Columbia Law School. Thank you to Professor Michael Gerrard for his guidance and insight, the staff of the Columbia Law Review for their editorial assistance, and my Nevada City family for inspiring this topic. And as always, special thanks to Derek Andersen for his constant support.

Introduction

The need for decisive action to fight California’s wildfires has never been clearer. The eerie, red-orange glow of California’s skies and the 4.2 million acres burned in 2020 have made the consequences of climate change impossible to overlook. 1 CAL FIRE, 2020 Incident Archive, CA.gov, https://www.fire.ca.gov/incidents/‌2020 [https://perma.cc/Z57K-PTGP] [hereinafter 2020 Archive] (last visited Jan. 28, 2022). The state must determine what mitigation, prevention, and safety measures it can require of those who play a role in wildfires and how it can regulate their relationships accordingly. Assembly Bill 1054 (AB-1054) is one attempt to redistribute the burden of wildfires throughout the state. 2 A.B. 1054, 2019 Leg., Reg. Sess. (Cal. 2019). In brief, it reduces the liability shouldered by electric utilities, creates a wildfire liability fund to pay victims’ claims, requires electricity ratepayers statewide to chip in to defray the costs of wildfires, and mandates safety protocols in the electrical grid. 3 Id. But AB-1054 misses a smaller yet essential piece of this puzzle: Older homes, made out of materials that burn more quickly than kindling, stand in the path of wildfires that electric utilities will inevitably ignite. These homes are likely to be underinsured and completely destroyed in future fires, 4 See Lyle Adriano, Wildfire Victims Are Largely Underinsured, Ins. Bus. Am. (Nov. 19, 2018), https://www.insurancebusinessmag.com/us/news/catastrophe/wildfire-victims-are-largely-underinsured-116580.aspx [https://perma.cc/GRM2-P6GE] (“According to the latest figures, nearly 80% of the homes affected by the wildfires were underinsured—of which 60% were severely underinsured.”). resulting in destruction and damages that the new wildfire fund will not be able to bear.

This Note argues that wildfires in California have become uninsurable at the state, industry, and individual levels. In order to live sustainably in the new reality of a year-round wildfire season, 5 Cal. Bd. of Forestry & Fire Prot., 2018 Strategic Fire Plan for California 10 (2018), https://static1.squarespace.com/‌static/‌5c7d9417f4e53167c963f109/t/‌5c9be105eb39315a34c73bf7/‌1553719561181/‌California+Fire+Plan+2018.pdf [https://perma.cc/‌6D3R-QJ3B] (“Climate change has rendered the term ‘fire season’ obsolete, as wildfires now burn on a year-round basis across the State.”). statutory solutions should move beyond shifts in liability. Massive wildfires must be prevented from turning into massive damage claims in the first place. This Note proposes that AB-1054’s utility mitigation requirements be expanded past the electrical grid and into the homes of ratepayers. Utilities should be required to retrofit their lowest-income customers’ homes to fire-hardened standards in high-risk areas. Fire safety measures can determine the fate of neighboring homes—when one is reduced to ashes, others may stand intact. 6 See infra notes 24–25 and accompanying text. An equitable investment into effective community-wide wildfire mitigation is essential to decrease the overall costs that the state must balance among individuals, utilities, insurance companies, and the government following a destructive fire. California must ensure that the burdens of climate change do not continue to rest on the individuals who are least able to bear it. 7 See News Release, EPA, EPA Report Shows Disproportionate Impacts of Climate Change on Socially Vulnerable Populations in the United States (2021), https://www.epa.gov/‌newsreleases/‌epa-report-shows-disproportionate-impacts-climate-change-socially-vulnerable [https://perma.cc/UE3Z-KSGS] (“EPA’s analysis indicates that racial and ethnic minority communities are particularly vulnerable to the greatest impacts of climate change.”). This Note applies lessons from the California earthquake home-retrofitting program and utility energy-efficiency programs to argue that electric utilities are optimally situated to increase safety and security for the most vulnerable while reducing the total damages from wildfires.

This Note unfolds in three Parts. Part I introduces the wildfire crisis in California and explains its main drivers: climate change and development in the Wildland–Urban Interface (WUI). Part I also reviews the consequences of this crisis from the perspective of electric utilities, insurance companies, and wildfire resilience advocates. It concludes with a critique of the legislative effort, AB-1054, through lenses of cost-efficiency and equity. Part II describes the opportunity that AB-1054 misses to overcome the interrelated obstacles to wildfire resilience by considering the challenges of living in the WUI, conceptualized as a tragedy of the commons. To instruct mitigation in the wildfire context, Part II surveys two model environmental initiatives: (1) earthquake retrofitting under the California Brace + Bolt Program (Brace + Bolt) and (2) utility-run energy efficiency programs. Part III presents a utility-run residential fire mitigation program as a statutory solution. This Note concludes that the California Public Utilities Commission’s (CPUC’s) standards support the establishment of a mitigation program despite the risks of moral hazard and barriers to meaningful individual participation.