Citing what the company calls "numerous fatal defects" in Boulder's case, Xcel Energy asked a Boulder District Court judge on Tuesday to dismiss the condemnation request filed by the city last month.
Boulder wants to force the sale of Xcel's local distribution system, all or part of nine substations that serve the city and the 115kV transmission loop that serves the city so that Boulder can use that infrastructure for a new municipal energy utility that will get more of its power from renewable sources. On July 17, Boulder filed a legal petition in Boulder District Court to obtain the system through eminent domain.
Boulder made its filing despite a ruling from the Colorado Public Utilities Commission last year that the city should go through the PUC first to determine which facilities it could obtain, how the systems would be separated and how out-of-city customers in the Gunbarrel area and unincorporated enclaves in north Boulder would be treated. Boulder is appealing that decision, but no ruling has been made.
That issue alone is enough to dismiss Boulder's condemnation case, lawyers for Xcel argued.
"On the eve of the appeal being resolved, Boulder has inexplicably disregarded the binding PUC orders and the role of the court in resolving that appeal, and prematurely filed this action seeking to condemn Public Service's electric system and business," Xcel's response said, using the legal name for the utility.
"It does so without even acknowledging the existence of the PUC orders in its petition in condemnation or explaining how this action can possibly comply with them."
Boulder spokeswoman Sarah Huntley said the city is still reviewing the filing but disagrees with the main thrust of Xcel's argument.
"We have just received the motion, and our attorneys are still evaluating it," she said in an email. "However, the city disagrees with the company's perspective on the PUC's jurisdiction. In addition, the assertions that Xcel Energy has made in today's filing are inconsistent with the company's prior testimony. We look forward to a robust discovery process."
In a prepared statement on the filing, Xcel Energy spokeswoman Michelle Aguayo said the PUC ruling is legally binding on the city.
"The PUC order is clear — before Boulder files a condemnation case, the PUC must evaluate the city's plans to ensure that they will not harm non-Boulder customers and the state-wide electric system as it relates to safety and reliability," she said in an email.
"Although Boulder is challenging the PUC's decision, it is still the law and the judge in Boulder's challenge has not yet issued her order. We were surprised to see Boulder take such an aggressive, unlawful step by filing the condemnation lawsuit and believe our motion outlines the legal reasons why the case should be dismissed."
The court does not need to consider all the other problems with Boulder's filing, Xcel said in its filing, because the "lack of subject matter jurisdiction" is enough reason to toss the case.
"This court does not have jurisdiction to consider and protect the rights of disenfranchised non-residents, the public utilities laws or the safety and reliability of the statewide electric grid," Xcel said. "That duty and expertise belongs to the Commission and, under the Commission's binding PUC orders, it must fulfill that duty before this action can proceed."
Boulder has always maintained that its broad condemnation powers as a home rule city derive directly from the Colorado constitution and cannot be abridged by the PUC, which has a regulatory role in managing the separation but cannot tell Boulder what it can and cannot obtain.
Boulder officials also said that they would allow Xcel to continue to serve county customers over the lines it would now own and is not seeking to obtain Xcel's certificate of public convenience and necessity, which gives it the sole right to serve those customers.
But in Tuesday's filing, Xcel said that the facilities Boulder seeks to obtain are used by Xcel to provide power throughout the region and would have significant impact on the company's ability to serve its customers. Xcel said Boulder had also been unclear about exactly what portions of substations it sought to obtain.
These are the very kinds of issues the PUC has the jurisdiction and expertise to address, Xcel said, and the city's lawsuit must be dismissed until the PUC case has been resolved.
Contact Camera Staff Writer Erica Meltzer at 303-473-1355 or firstname.lastname@example.org