Regulatory & Legal Proceedings
Regulatory & Legal Proceedings
Creating a local electric utility requires filings and activity within the court system and in front of energy regulatory bodies. For example, in order to acquire the physical assets necessary to provide electric service, the City of Boulder must either reach an agreement for purchase with Xcel Energy or pursue condemnation in a court of law.
The city is also involved in proceedings in front of the Colorado Public Utilities Commission (PUC) and the Federal Energy Regulatory Commission (FERC). These links provide publicly available filings--some legal information must remain confidential so that the city can best represent Boulder's interests.
City of Boulder voters were asked to consider municipalization, or related funding and issues, in 2010, 2011, 2013 and 2014. In all four elections, a majority of voters directed the city to pursue the creation of a local electric utility.
- 2010 Utility Occupation Tax , passed by Boulder voters.
- 2011 Ballot Measures 2B and 2C passed by voters to research and fund creation of a local electric utility.
- 2013 Ballot 2E was passed by voters, refined acquisition costs and specified representation for out-of-city customers. 310, an Xcel-backed 2013 measure that would have stopped Boulder from moving forward with a local electric utility was resoundingly defeated.
- 2014 Ballot Measure 2B passed by voters, allowing city council to hold private executive sessions to discuss legal advice for creation of a local electric utility.
In July 2014, the city filed a condemnation petition in Boulder District Court seeking to acquire portions of the electric system owned by Xcel Energy. These portions of the system are necessary to create a local electric utility that would serve customers within city limits. Under the Colorado Constitution, cities have the authority to condemn real and personal property inside and outside city limits in order to provide public power to residents and businesses. Property owners have the right to due process and just compensation for the taking of their property. In cases where the parties do not reach a negotiated settlement, a city may file a condemnation case in court.
On Feb. 13, 2015, Judge LaBuda dismissed the City’s Condemnation Petition without prejudice, citing her decision of Jan. 14, 2015 in the City’s Appeal of PUC Ruling to District Court.
Xcel Lawsuit Against Boulder and City Council
In April 2014, Boulder City Council passed an ordinance creating a local electric utility. Although the city has not yet made a final decision about whether to municipalize, if the city does decide to proceed and issue bonds, it will need to have an entity established that can do so. In June 2014, Xcel filed a lawsuit against the city, alleging that City Council's formation of a utility was "premature" and that Boulder failed to meet requirements laid out in the City Charter.
On June 25, 2015 Boulder District Court Judge Judith L. LaBuda upheld Boulder City Council’s 2014 decision to create an electric utility, finding that Xcel Energy failed to comply with the requirements of the Colorado Rules of Civil Procedure and dismissing a claim that the City Council decision was unlawful. She also expressly recognized that the Colorado Constitution grants home rule cities, like Boulder, the right to create a utility.
City's Appeal of PUC Ruling to District Court
In the Fall of 2013, the PUC issued two rulings that might negatively impact the city’s ability to acquire Xcel's assets. The city is contesting those rulings in order to protect several constitutional authorities that belong to local governments.
On Jan. 14, 2015, Boulder District Court Judge Judith LaBuda affirmed a Colorado Public Utilities Commission (PUC) ruling that would require the city to seek permission from the PUC before exercising its constitutional right to acquire portions of the electric system currently owned by Xcel Energy. Check out Judge LaBuda's ruling.
Murphy CORA Lawsuit for Release of Financial Model
In Dec. 2014, Patrick Murphy, a private resident, filed suit to obtain the city’s financial model under the Colorado Open Records Act (CORA). The case is Patrick Murphy v. City of Boulder, et al., and District Court Judge Judith L. LaBuda ruled from the bench on Jan. 6, 2015. You can read the written ruling here.
The court found that much of the information Mr. Murphy sought is not public record, and the city has already released what was required of it with regard to the modeling process. You can read a Jan. 7, 2015 statement about the court decision here.
On Dec. 18, 2014, the Federal Energy Regulatory Commission defined their role in reviewing the city's municipalization plans and affirmed Boulder’s right to move forward with condemnation.
Earlier in 2014, Public Service Company of Colorado (PSCo, the wholly owned subsidiary of Xcel Energy in Colorado) filed a petition for declaratory orders with the FERC that requested three specific rulings:
- That the City of Boulder cannot effectuate its condemnation of the 115 Kv transmission loop without prior FERC approval under section 203 of the Federal Power Act;
- In exercising its section 203 jurisdiction, FERC will apply the criteria that considers, among other things, the proposed transfer’s effect on rates, effect on regulation, and other relevant factors (including the effect on reliability); and
- That FERC’s exercise of jurisdiction under section 203 does not diminish the authority of the Colorado Public Utility Commission to review the transfer of facilities that are the subject of condemnation.
The City of Boulder intervened in this FERC proceeding. You can view FERC documents in our Records Archive.