PIERRE, S.D. (SOUTH DAKOTA SEARCHLIGHT) – South Dakota lawmakers advanced a bill Tuesday at the Capitol that would give utilities legal protections if a wildfire is blamed on them, in exchange for filing a wildfire mitigation plan.
The Senate Commerce and Energy Committee voted 6-3 to send the bill to the full Senate.
Under the bill, private utilities could submit mitigation plans to the Public Utilities Commission, while electric cooperatives and municipal utilities could submit plans to their boards or city councils. The utilities that do so would have to file annual compliance reports. The bill includes required elements for plans, such as identifying higher-risk areas, inspection and operating standards, vegetation management strategies, and coordination with the appropriate wildfire agencies.
The bill’s most debated section would change the legal playing field after a wildfire. It would bar courts from applying “strict liability” to qualified utilities in wildfire-damage lawsuits. That is a legal standard that makes entities responsible for harm they cause, regardless of whether they were negligent or intended to cause it.
The bill would make the new law a plaintiff’s “sole remedy” against a qualified utility for wildfire losses.
The bill is sponsored by Sen. Steve Kolbeck, R-Brandon, who works as a director of business affairs at Xcel Energy, an investor-owned utility with over 100,000 customers in the state.
“We want to make people whole. We just don’t want to make them rich,” Kolbeck told fellow members of the committee.
The bill says plaintiffs would be able to recover losses only by proving that the utility failed to “substantially comply” with an “essential element” of the plan, and “that failure was the actual and proximate cause of the damages to the plaintiff.”
Plaintiffs would have three years to file a lawsuit from the date of ignition.
The bill would also limit noneconomic damages awarded in lawsuits to cases involving death or “visible bodily injury in the form of a burn,” and restrict punitive damages to situations proven by clear and convincing evidence of malice or criminal intent.
Property damages would be capped at the lesser of restoration cost or the change in fair market value before and after the wildfire.
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