BOULDER COUNTY, Colo. (KDVR) — There are a few things to consider when thinking about any future lawsuit against Xcel Energy for its part in the Marshall Fire.

One is their defense: A major utility company like Xcel will have a team of attorneys at their service. The other is how much responsibility they actually have.

That’s where FOX31 legal analyst Christopher Decker said it could get tricky.

“There is insufficient evidence to establish criminal negligence or criminal recklessness,” Decker said.


No crime was committed by Xcel or the Twelve Tribes religious group in connection with Marshall Fire, according to the investigation by Boulder County Sheriff’s Office.

Yet there is still blame to give for the worst fire in state history.

“It certainly puts Xcel Energy squarely in the middle of that liability claim,” Decker said.

How could Xcel defend itself?

That claim could face a challenge by Xcel, Decker said — first, with how much they are to be blamed for.

“Xcel Energy could turn and say, ‘Well, we started an itty-bitty fire, and it really wasn’t a main part of it,” Decker said.

In a statement, Xcel said its powerlines did not contribute to helping the fire spread, as the investigation claims. On the other hand, Xcel said it agrees the fire from the Twelve Tribes property was the main cause.

“What this provides,” Decker said, “is wiggle room or blame game for those two defendants to point the finger at one another.”

Xcel could argue two points in court, according to Decker. First, that the investigation is outright wrong, and second, that their role in it was minimal compared to the other determined cause.

None of this, Decker said, should keep homeowners from pursuing legal action.

“I would tell those homeowners they should feel good that a thorough investigation has revealed that Xcel Energy was, in part, responsible for this terrible fire,” Decker said.

Utilities have paid out for fires before

In California, a utility provider, PG&E, shelled out billions after being found negligent for a 2018 wildfire. Residents there saw rate hikes following a number of lawsuits against the company.

“There’s precedence in homeowners suing utilities for a fire that is initiated partly, or exclusively by powerlines,” Decker said.

Decker said companies like Xcel are either insured or have their own funds to cover damages and settlements. Depending how much they have or how much their insurance policy covers could determine if they need to pay a difference.

It’s possible that difference could be paid for by passing the cost on to customers. Plenty has yet to be determined.