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Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.

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Speaker 2: Boy for generations the highest beauty, culture and rich history,

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Speaker 2: true artists, musicians and visitors from around the world. Tragically,

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Speaker 2: it took less than a single day for us to

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Speaker 2: lose Lina in the deadliest fire our country has seen

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Speaker 2: in more than a century.

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Speaker 1: Hawaii's first Lady overcome with emotion from the devastating loss

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Speaker 1: after a wildfire destroyed the historic town of Lehina in

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Speaker 1: the deadliest natural disaster in the state's history. More than

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Speaker 1: one hundred people are confirmed dead, more than eight hundred

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Speaker 1: still unaccounted for. Of buildings have been destroyed others damaged

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Speaker 1: at an estimated cost of nearly six billion dollars. While

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Speaker 1: the cause of the fire is still under investigation, there's

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Speaker 1: mounting evidence that Hawaiian electrics down power lines played a part.

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Speaker 2: Power line just went down that whoefully so justin.

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Speaker 1: Golf and video from security camera footage at the Maui

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Speaker 1: Conservation Center captured a flash of what could have been

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Speaker 1: an early trigger to the deadly fire.

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Speaker 3: There's a flash and I think that's when it's free

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Speaker 3: is falling on a power line. The power goes out.

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Speaker 1: Now, Hawaiian Electric is facing at least eight lawsuits over

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Speaker 1: its role in allegedly sparking the fires, and some of

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Speaker 1: the lawsuits are seizing on a legal strategy that doesn't

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Speaker 1: require proving negligence. This legal shortcut help push PG and E,

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Speaker 1: California's largest utility, into bankruptcy and secured fire victims a

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Speaker 1: thirteen and a half billion dollar settlement in twenty twenty.

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Speaker 1: But the legal argument known as inverse condemnation has never

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Speaker 1: been used in Hawaii courts. Joining me is Shelley Ross Sachser,

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Speaker 1: a law professor at Pepperdine University. Shelley tell us about

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Speaker 1: inverse condemnation.

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Speaker 3: If you are familiar with the idea that the government

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Speaker 3: can use its power of eminent domain to actually take

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Speaker 3: someone's property for public use. What we're talking about are

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Speaker 3: things like they need to expand the road, and so

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Speaker 3: they have this power of eminent domain. It's also called

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Speaker 3: condemnation when they determine that they're going to take your

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Speaker 3: property and they will give you just compensation, which is

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Speaker 3: generally the fair market value of the property that they've taken.

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Speaker 3: An inverse condemnation is a claim where instead of the

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Speaker 3: government condemning private property. The private property owner says, government,

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Speaker 3: you have restricted me so severely in the use of

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Speaker 3: my land that you might as well have taken it.

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Speaker 3: So I the property owner, am bringing a claim against

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Speaker 3: the government saying whatever the government's action, whether it be

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Speaker 3: regulation or some denial of a permit, the landowner can

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Speaker 3: claim you have taken my property, you need to pay

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Speaker 3: me just compensation. So that's why it's inverse condemnation, is

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Speaker 3: it's the property owner that's bringing the claim against the government,

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Speaker 3: not the government coming to the property owner saying we

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Speaker 3: need to pay you just compensation and take your property.

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Speaker 1: Hawaiian Electric is an investor owned company, So how would

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Speaker 1: this work against Hawaiian Electric.

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Speaker 3: Well, first of we'll let me clarify a little bit

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Speaker 3: more about the constitutional provisions that that issue here. Hawaii

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Speaker 3: Constitution Article one, section twenty says private property shall not

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Speaker 3: be taken and it adds or damaged for public use

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Speaker 3: without just compensation. So if we're looking at the federal Constitution,

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Speaker 3: it says nor shall private property be taken for public

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Speaker 3: use without just compensation. However, there are about twenty seven

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Speaker 3: state constitutions that include that phrase damage where the property

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Speaker 3: is injured for a public use. So it's really not

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Speaker 3: that the utilities are taking the properties. It's that they

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Speaker 3: have damaged the property while operating for the public benefits.

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Speaker 3: So I just want to clarify that the damage clause

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Speaker 3: also called a damaging clause, is there in the constitution

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Speaker 3: which makes the argument for inverse condemnation relevant to the

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Speaker 3: idea of property that is being damaged for a public benefit.

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Speaker 3: In this case, the public benefit is supplying electricity.

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Speaker 1: And how do you get from the government to Hawaiian

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Speaker 1: Electric private utility?

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Speaker 3: That comes by looking at the fact that the government

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Speaker 3: has delegated the power of eminent domain to public utilities

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Speaker 3: even though privately owned and so Hawaii Revised Statutes Section

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Speaker 3: one oh four Dash four says that the right of

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Speaker 3: eminent domain is granted to public utilities and others. So

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Speaker 3: the idea is because these utilities are delegated the power

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Speaker 3: of eminent domain condemnation, that therefore they are also liable

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Speaker 3: for inverse condemnation claims because they are performing a public benefit.

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Speaker 1: Has this theory of inverse condemnation been used in courts

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Speaker 1: in Hawaii, No.

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Speaker 3: Not that I can see at all, Although it is

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Speaker 3: clear that Hawaiian Electric Company has used the power of

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Speaker 3: eminent domain to acquire easements, et cetera.

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Speaker 1: Explain how this was used in California against PGN.

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Speaker 3: SO California over a long period of time developed this

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Speaker 3: idea from the California Constitution, which says that private property

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Speaker 3: may be taken or damaged for a public use only

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Speaker 3: when just compensation is paced. The point is it's the

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Speaker 3: same as Hawaii in that it includes that damaging thought.

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Speaker 3: So California developed the idea of using inverse condemnation over

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Speaker 3: time when there were property damages from blood control projects

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Speaker 3: that developed beginning I think around nineteen eighty eight. And

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Speaker 3: so we have a Southern California Edison case. This was

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Speaker 3: an appublic case. The court said there, we are not

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Speaker 3: convinced that any significant differences exist regarding the operation of

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Speaker 3: publicly versus privately owned electric utility. And so they concluded

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Speaker 3: that Southern California Edison may be liable in inverse condemnation

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Speaker 3: as a public entity.

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Speaker 1: I mean, does this mean they don't have to prove

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Speaker 1: that Hawaiian Electric or PGNY was negligent?

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Speaker 3: That is correct, So they just have to prove that

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Speaker 3: it was Hawaiian electric company that was some kind of

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Speaker 3: nexus to the damage that occurred. But it doesn't have

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Speaker 3: to be negligent because inverse condemnation is not a tort.

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Speaker 3: It's related to the constitution and the taking clause of

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Speaker 3: the federal Constitution. But also we have in some states

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Speaker 3: taking and damaging, and those states include California and Hawaii.

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Speaker 3: So California, the idea is it's called strict liability, which

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Speaker 3: I think is incorrect because strict liability refers to a tort.

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Speaker 3: So I would say it's just a matter that if

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Speaker 3: the company is acting for a public benefit, it's performing

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Speaker 3: a public benefit supplying electricity. If landowners are damaged by

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Speaker 3: that activity for the public benefits, then the utility has

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Speaker 3: to pay just compensation for those damages. But this is

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Speaker 3: only for property damages. This is not the personal injury.

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Speaker 1: So wrongful death is definitely not included in this.

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Speaker 3: Absolutely not that would have to be under toward law.

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Speaker 3: The only thing that inverse condemnation covers in property damages.

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Speaker 1: As far as the relevant provisions in its constitution, Hawaii's

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Speaker 1: constitution mirrors California's. So is this inverse condemnation strategy a

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Speaker 1: slam dunk for the plaintiffs in Hawaii.

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Speaker 3: Oh no, no, I don't think it's a slam dunk

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Speaker 3: at all, because different states have dealt with their own

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Speaker 3: damaging clauses differently. But the idea of the Takings Clause

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Speaker 3: and the Fifth Amendment under the Federal Constitution is that

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Speaker 3: we do not want individuals to have to bear the

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Speaker 3: burden that should be borne by the public as a whole.

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Speaker 3: In other words, if Hawaii Electric is supplying electricity to

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Speaker 3: the entire state of Hawaii, that's the benefit to everyone

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Speaker 3: in Hawaii. But in doing that, there were people in

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Speaker 3: Lahina whose property was damaged as part of that supplying

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Speaker 3: electricity to the state. And because of that inverse condemnation,

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Speaker 3: damaging's clause is trying to say those landowners should not

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Speaker 3: have to bear the burden for this public benefit fit

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Speaker 3: of supplying electricity. Now, how that comes about is maybe

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Speaker 3: everybody has to have rate increases to pay for those damages.

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Speaker 3: But the same applies if the government needs to take

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Speaker 3: somebody's property to expand the road, they need to pay

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Speaker 3: that person just compensation. It's for a public benefit, and

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Speaker 3: so we end up with, you know, our taxes probably

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Speaker 3: paying that to the individual landowners.

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Speaker 1: Courts in Hawaii tend to be pretty liberal and sympathy

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Speaker 1: for the you know victims here. Could that play any

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Speaker 1: part in it?

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Speaker 3: Well, I think it could, because again it's the whole

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Speaker 3: idea of eminent domain and condemnation and paying just compensation

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Speaker 3: and then turning around inverse condemnation, regulatory taking, and in

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Speaker 3: this case damaging. The idea is those individuals should not

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Speaker 3: have to bear the burdens of supplying electricity to the state.

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Speaker 1: And in this case, Hawaiian Electric has a market capitalization

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Speaker 1: of about two point three billion and the potential liability

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Speaker 1: could reach six billion. So successful lawsuits here could put

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Speaker 1: Hawaiian Electric into bankruptcy like PG and E exactly.

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Speaker 3: But it's interesting the bankruptcy court in PG and E

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Speaker 3: looked at California's law and went through it and affirmed

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Speaker 3: that that was the correct interpretation. But California had precedent.

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Speaker 3: Hawaii does not have precedent, So Hawaiian Electric Company is

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Speaker 3: in a different position than PG and E.

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Speaker 1: These class action lawsuits also alleged that Hawaiian Electric was negligent,

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Speaker 1: for example, failing to shut off the power line despite

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Speaker 1: warnings that high winds might blow those lines down and

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Speaker 1: spark wildfires. So if the inverse condemnation strategy doesn't work,

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Speaker 1: then they'll have to prove negligence on the part of

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Speaker 1: Hawaiian Electric. Will that be difficult for.

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Speaker 3: The plaintiffs in this case, I don't think so. I

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Speaker 3: don't know, but certainly there was negligence found with PG

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Speaker 3: and E, so it could be that the inverse condemnation

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Speaker 3: argument won't matter if they do prove negligence, which I

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Speaker 3: think from just things that I've heard that that might

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Speaker 3: not be too difficult to prove. In terms of the bankruptcy.

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Speaker 3: Certainly California went through this too, and so the governors

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Speaker 3: Jerry Brown at the time and then Newsom looked at

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Speaker 3: what it would take to keep them from going into

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Speaker 3: bankruptcy because we don't want that to happen to the utilities,

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Speaker 3: and the would be we just want to make sure

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Speaker 3: that as a society, and this is going to apply

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Speaker 3: no matter what disasters we're going to be based in

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Speaker 3: the future, all of the burdens should not fall on

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Speaker 3: individuals when the public should be taken care of it

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Speaker 3: because it's part of what we need to do to

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Speaker 3: continue adapting and surviving. So That's why I think it's

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Speaker 3: an attractive concept that doesn't require faults. All it requires

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Speaker 3: is we're trying to spread the cost.

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Speaker 1: And do other states besides Hawaiian California have these damaging clauses.

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Speaker 3: This idea of the damaging clause that's in the Hawaii

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Speaker 3: Constitution and in California and in about twenty seven different states.

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Speaker 3: This was first pointed out in an article by Marine

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Speaker 3: Brady in the Virginia Law Review in twenty eighteen. And

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Speaker 3: she is a historian who also does property law, and

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Speaker 3: she wrote this article and it said, this article recovers

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Speaker 3: the hidden history of the state damaging's closets. And the

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Speaker 3: reason those were put in was because when we were

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Speaker 3: doing infrastructure like the railroads, what was happening is that

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Speaker 3: the private railroads were given the power of eminent domain,

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Speaker 3: and if they took property to run the railroad track,

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Speaker 3: then that property owner was entitled to compensation. However, when

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Speaker 3: they ran the railroad track, in some cases they would

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Speaker 3: just leave properties with out any access because they dig

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Speaker 3: through a hill to lay the tracks, and so this

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Speaker 3: devalued other property. And so these damaging pauses were put

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Speaker 3: in in many cases in the eighteen hundreds the late

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Speaker 3: eighteen hundreds to account for this problem, and Hawaii originally,

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Speaker 3: and this comes out of Molly Brady's article, that Hawaii

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Speaker 3: first considered this language in nineteen fifty and they declined

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Speaker 3: to add the damaging language because they said the state

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Speaker 3: courts are not fully agreed on the meaning of it.

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Speaker 3: But then at the next constitutional convention in nineteen sixty eight,

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Speaker 3: they adopted it. And this again is from Molly Brady's research.

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Speaker 3: She said in Hawaii Delegate Peter Lewis lament how one

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Speaker 3: Honolulu resident had suffered as an elevated freeway passed feet

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Speaker 3: from his bedroom window, subjecting him to headlights and constant

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Speaker 3: traffic noise. So that was the idea of the damaging's clauses.

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Speaker 1: So this inverse condemnation strategy has worked in California cases,

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Speaker 1: has it worked elsewhere?

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Speaker 3: I've looked at all of the cases that involved this

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Speaker 3: idea of the damaging's clauses, which have been used not

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Speaker 3: just for flooding and wildfires, but it's also been used

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Speaker 3: for things like public work, so for sewers when that's

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Speaker 3: backed up and it's not being taken care of and

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Speaker 3: property is damaged It's also been asserted when the police

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Speaker 3: have to go after a criminal and they go into

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Speaker 3: somebody's store or house in pursuit of the criminal and

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Speaker 3: they damaged the property, and the question is that a

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Speaker 3: damaging under inverse condemnation? And there has been mixed law

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Speaker 3: on that.

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Speaker 1: Thanks so much for being on the show, Shelley. That's

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Speaker 1: Shelley Ross Saver, a law professor at pepper Down University.

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Speaker 1: And that's it for this edition of The Bloomberg Law Show.

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Speaker 1: Remember you can always get the latest legal news on

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Speaker 1: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

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Speaker 1: and at www dot Bloomberg dot com, slash podcast slash Law,

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Speaker 1: and remember to tune into The Bloomberg Law Show every

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Speaker 1: weeknight at ten pm Wall Street Time. I'm June Grosso

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Speaker 1: and you're listening to Bloomberg