Subcommittee backs version of SB 23,339 that ties utility liability to wildfire-mitigation filings

A Senate Energy and Natural Resources subcommittee voted unanimously to recommend version 02/2001 of Senate Bill 23,339 to the full committee after debate over liability protections for utilities tied to wildfire-mitigation plans.

The recommendation, moved during the subcommittee meeting and seconded, advances the bill language that retains strict-liability language while also including a rebuttable-presumption protection for utilities that drew questioning from some members. The panel also approved a technical change striking “shall” and replacing it with “may” on page 4, line 2 of the working draft.

Representative Olson moved the recommendation to the full committee; Representative Johnson seconded. Chairman Doctor, Representative Connealy, Olson and Johnson voted yes when the subcommittee recorded its roll call.

Representative Connealy raised concerns that adding a rebuttable-presumption protection for utilities (identified in the draft at page 3, lines 24–26) would “put a thumb on the scale” in favor of utilities and would shift burdens onto landowners. “By adding the additional rebuttable presumption protection for utilities, it kinda goes beyond. It makes it worse for landowners,” Connealy said during the discussion.

Levi Andress of GA Group, speaking on behalf of Power Companies of North Dakota, responded that the provision had been negotiated among insurers, utilities and other stakeholders and that the bill’s language addresses the burden of production rather than the plaintiff’s burden of proof. “There’s two burdens in a loss in a civil lawsuit. One is the burden of production that has to do with providing evidence…The burden of proof…the plaintiff will always…have to prove by a preponderance of the evidence that negligence had happened,” Andress said, adding that the change was intended as an incremental step to incentivize filing and compliance with wildfire-mitigation plans.

Andress also told the subcommittee that earlier drafts of the bill had used a stronger prima-facie standard and that the current language represents a negotiated compromise among insurers and power companies. He noted the Public Service Commission had not been ready to make filing or review of mitigation plans mandatory and described the current draft as an incremental step toward broader review or mandatory requirements in the future.

Committee members discussed whether removing the rebuttable-presumption language would harm the bill’s prospects. Andress warned that removing the provision could “harm the prospects and the importance of this bill” because the measure is intended to create incentives for utilities to file mitigation plans that the parties believe serve the public interest, including ratepayers and customers.

The subcommittee also noted a technical correction already marked in the working notes: replacing “shall” with “may” on page 4, line 2 of the 02/2001 draft. Members said that correction had been entered in the working notes and would remain in the version recommended to the full committee.

Minnkota sought further amendments but committee members indicated no desire to add Minnkota’s proposed changes at this time. The subcommittee chair said members who want to offer additional amendments may do so when the bill reaches the full committee.

The subcommittee recorded the motion to recommend version 02/2001 of SB 23,339 as passed and adjourned the meeting.