California Wildfire Lawfare - ORIGINAL CONTENT

An appropriate topic for any discussion of lawfare, whether lawsuits alleging violation of existing laws or legislation leading to new law, is the issue of standards of evidence.

Standards of evidence refer to the amount of evidence or certainty required to prove a fact or claim in legal cases. The three primary standards of proof are:

1. Proof beyond a reasonable doubt
2. Preponderance of the evidence
3. Clear and convincing evidence

The State of California sued several major oil and gas companies and the American Petroleum Institute (API) in 2023, accusing the companies of lying about the effects of the use of their products on the climate and seeking compensation for alleged damages and state investment in climate adaptation. The state lawsuit is a variation on the theme ”Exxon knew”, which has been unsuccessful in numerous similar lawsuits, including a lawsuit by New Jersey. More recently, legislation was introduced to provide a path for insurance companies and individuals to sue the companies for damages resulting from wildfires.

Wildfires are a special case, in that they cannot be caused by climate change. Rather, there is clear and convincing evidence that wildfires require a source of ignition at a temperature above the ignition temperature of the available combustible material and possessing sufficient energy to raise the temperature of the available combustible material above its ignition temperature. The common natural source of ignition is lightning. However, faulty electric transmission and distribution infrastructure, accidental spread of cooking and campfires from homeless encampments and intentional arson are also common sources of ignition which cause wildfires.

California has experienced more than 200,000 wildfires in the period since 1878. Relatively accurate records are available after 1925 which show a dramatic decrease in acres burned through 1983, followed by a slow increase largely resulting from electric spark and human ignition, aggravated by poor forest management practices, beyond a reasonable doubt. Most of these wildfires occurred before global warming and climate change became a significant issue.

The preponderance of the evidence surrounding the recent Pacific Palisades and Eaton wildfires establishes that the damage caused by the fires was aggravated by failure to pre-position firefighting resources in anticipation of forecasted severe Santa Ana winds, the unavailability of water in the nearby Santa Ynez reservoir, low water pressure and numerous non-functional fire hydrants in the immediate area of the fires.

The preponderance of the evidence, as collected and analyzed by the IPCC in its Sixth Assessment Report (AR6, Chapter 12) indicates no linkage between global warming and climate change and the frequency and intensity of extreme weather events, with the exception of heat waves, or wildfires.

California has made numerous bad decisions regarding wildfires, including abandoning aggressive forest management projects and failing to build and fill additional reservoirs. Governor Newsom also disbanded a National Guard highly trained volunteer fire service.

Regardless of the above, California has focused the “blame game” on major oil and gas companies and the API, largely because the industry represents “deep pockets” which could help fund the recovery efforts from the recent fires.