by Tracy Reichmuth, Crowell & Moring, and Stephen R. Cieslewicz, CN Utility Consulting
When trees conflict with energized lines, a lot can go wrong. The consequences of this type of occurrence can include power outages or blackouts, fires and, most tragic, accidental injuries or deaths.
Avoiding these scenarios is among the principal reasons the utility industry spends billions of dollars annually on utility vegetation management (UVM). These efforts over the years have reduced significantly the number of serious incidents’ involving these tree and power line conflicts.
Despite utilities’ best efforts, however, things can and will go wrong. During the aftermath of these events, a utility can expect to end up in front of a judge or jury to explain how it could not have prevented an occurrence or at least how it acted reasonably in trying to prevent it.
Unfortunately, bad memes, or ideas that pass through the community, regarding UVM can color the public’s perception of a utility’s actions’ leading up to an incident.
These preconceived notions mean that decision-makers from regulators and legislators to judges and juries might act without understanding what the utility industry can do and does do to keep lines clear, what the industry is required to do by law, and the limitations and hurdles the industry faces. As a result, these bad memes can make for bad decisions.
Types of Tree, Power Line Conflicts
Tree-related incidents are the most common cause of routine outages and a significant contributor to large-scale blackouts, such as the one that affected large parts of the Northeast in 2003.
Although tree-related fires are comparatively rare, when they happen they are among the most devastating types of fires.
Tree-related fires frequently occur at times that already are conducive to the spread of fire: during hot, dry and windy conditions. In a recent group discussion, participants from large investor-owned utilities ranked the possibility of a massive fire after a tree-power line conflict No. 2 on their list of most-feared catastrophic incidents, second only to a nuclear power plant accident.
Another significant threat involves public and worker safety. One fatality every week likely is influenced by the proximity of trees to energized lines.
In recent years, judgments and settlements related to these types of events have climbed steadily into the billions of dollars. Fire claims, for example, even have prompted insurance carriers to stop providing umbrella insurance to certain utilities and service providers.
Monetary judgments and insurance coverage, however, should not be the only utility concern. The harm that these bad memes do to the public’s perception of utilities can be much more damaging. These misconceptions and the accompanying legal consequences can destroy a company’s brand image and, in turn, the company.
The Six Deadly Memes
CN Utility Consulting studies have shown that most large utilities acknowledge a disconnect between the industry standards for vegetation management and the public’s perception.
Contained within this disconnect are at least six common but false memes that routinely show up in court and regulatory cases in the aftermath of tree and power line incidents. These are routinely assumed, albeit erroneous, beliefs held by most laypeople, including those on juries:
1. Every tree within falling distance is inspected routinely and comprehensively. Plaintiffs often have made this claim in cases where a tree fell from outside of normal clearing limits and caused a fire or accident. From this starting premise, plaintiffs might argue that a utility did not meet the appropriate standard of care by failing to identify a problem tree. Contrary to this erroneous meme, utilities do not routinely inspect every tree that could fall through electric lines. A quick method to dispel this myth is to drive down a typical road and identify every tree that could fall through the lines. It should become apparent quickly that to accomplish 100 percent of these inspections, a utility would have to take ownership of a large percentage of urban and rural forests.
2. Tree failures can be predicted easily. This premise assumes that any old arborist would have known a particular tree would fail and was a hazard. No qualified arborist or tree expert, however, would suggest it is possible to predict all tree failures. It is recognized widely within the industry that neither the expertise nor technology would enable accurate prediction of all tree failures, as reflected in disclaimers found in all hazard tree guides and best practices publications. This fact is compounded by the impact of winds on trees. Research is underway to understand tree failures better, but a completely healthy tree with no visible signs of decay, rot or structural defect can shed limbs or fail completely when winds exceed 39 mph.
3. Utilities are obligated by law to prevent all tree-related problems. This common belief demonstrates how little those outside the industry understand regulatory requirements and the responsibility placed on utilities. For transmission voltages, utilities generally must maintain prescribed clearances and address hazard trees within their defined easements, per the North American Electric Reliability Corp.’s (NERC’s) FAC-003. The principal regulatory requirements for distribution lines are found in NESC Rule 218 and are adopted or not by state. NESC Rule 218 does not require utilities to prevent all tree-related incidents or to remove all trees that could cause such incidents. NESC Rule 218 recognizes that “it is not practical to prevent all tree-conductor contacts on overhead lines.”
4. Utilities have the right to prevent all tree-related problems. Plaintiffs often assert that utilities have the right to enter private land to inspect, remove or prune any trees near overhead lines. This is false. Even where utilities have documented easements, they have met resistance from property owners. In two recent cases in California and Ohio, utilities faced years of litigation with property owners over their right to remove or prune problem trees, despite that the utilities had documented easements across the properties with documented rights to remove trees.
5. The trees were there first. Another common belief is that tree-related incidents are caused by the utilities’ placement of power lines. In our experience, most tree-related incidents are initiated after property owners plant incompatible vegetation near existing power lines. Put differently, many of these conflicts occur from bad planting choices completely outside the utilities’ control.
6. Utilities should prune rather than remove incompatible trees on transmission rights of way (ROWs). The public often assumes frequent pruning can remedy the danger caused by incompatible vegetation on transmission ROWs; however, the forced frequency with which trees must be pruned affect the health of the trees and lead to even more dangerous conditions. Allowing any incompatible vegetation on ROWs is contrary to everything the industry knows about proper UVM. It is costly to everyone, and it was a principal contributing factor of the 2003 Northeast Blackout.
The Impact of the Memes
These memes can affect the utility industry in countless ways, including the applied legal standard of liability. For example, it seems unreasonable to impose strict liability on a utility for a tree-related incident (as opposed to a negligence or reasonable care standard) where the company does not have the legal right to inspect or remedy problem trees before an incident.
Similarly, a juror who does not understand industry standards and the realities of UVM might incorrectly assume what a utility can and should do. A juror who incorrectly assumes it is standard practice to inspect and prune every tree that might touch an overhead line might erroneously find a utility negligent for not doing so, even if the utility complied with industry standards and federal and state regulations.
What the Industry Can Do
Utilities must take every opportunity to educate the public, legislators, regulators and, when litigation is filed, judges and juries. Comprehensive public education campaigns that proactively inform the public about UVM goals, efforts and limitations are a good place to start.
It also might be advisable to seek legislation and regulations that address the bad memes and limit liability to what is reasonable and within the company’s ability to control.
If a lawsuit is unavoidable, a utility should set out the realities of the industry carefully to the judge and jury. Better yet, change the memes before a case is filed.
Tracy Reichmuth is a counsel in Crowell & Moring’s San Francisco office, where she focuses on complex commercial litigation, including antitrust law, unfair competition, commercial contract disputes, business torts and consumer class action defense. She is a graduate of Stanford University and University of California, Berkeley, School of Law.
Stephen R. Cieslewicz is president of CN Utility Consulting. He has more than 30 years of experience working with utilities, regulators and service providers around the world, ranging from investigating the UVM-related causes of the 2003 Northeast Blackout to testifying in legal and regulatory cases.