Outage Attitude

A reporter called me about electricity outages in an eastern state.  The utility blamed trees:  The width of the easements was less than the height of the trees, so that when trees fell they fell on the wires.  Nothing they could do.  They even gave him a tour of the easements.

It sounded like a tour of excuses.

Two legal principles solve this equation.  First, a utility has an obligation to serve.  That obligation is defined by its commission's standards for continuity of service.  It is not likely that the commission-approved standards vary with the width of the easement.  Second, a utility has power of eminent domain—the government-granted power to take private property (paying the owner just compensation) when that property is necessary to serve the public.  That's how the utility obtained the existing (too narrow) easement:  by exercising its power of eminent domain.

What's the problem with this picture?  Blaming the easement's narrowness for the outages has things backwards.  The width of the easement does not determine the obligation to serve; the obligation to serve determines the width of the easement.  Probably the utility got the easement when the trees were short.  But trees grow.  Time to expand the easement, by using the power of eminent domain—as required by the obligation to serve.

Caveat:  I have none of the facts specific to the locations at issue, or to the practicality and desirability of easement expansion and tree removal.  My focus here is on demonstrating the legal responsibilities that weigh against a "can't fix it" attitude.

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