We contributed to Marketplace‘s Morning Report (stream above, or visit this link), and its brief discussion of the California wildfire and inverse condemnation situation, “PG&E tries to get out of its financial responsibility to those affected by west coast fires.” That portion of the broadcast begins at the 1:57 mark. 

Today’s the day that a U.S. Bankruptcy judge will hear arguments about whether holding PG&E and other private utilities which possess the power of eminent domain potentially liable under California’s version of inverse condemnation, itself is a taking under the Fifth Amendment because the utilities do not have the ability to spread the costs of any such judgments to their ratepayers automatically. More on the argument (including the brief) here. The claim is made that the purpose of condemnation is to make sure that the costs of public projects are not borne by individual property (correct, see Armstrong v. United States, 364 U.S. 40 (1960), and that government has the power to tax and therefore spread the cost of inverse judgments automatically (we’re not on board with that one because we can think of government agencies which are also subject to inverse condemnation liability that do not have the automatic power to tap into taxes).

So let’s see what the judge does today. (Also contributing to the Morning Report discussion was lawprof Shelley Ross Saxer).