3. Legal Authority
The Commission has clearly stated how it decides whether to grant a motion to dismiss:
By assuming that the facts as alleged in the application are true for the purposes of deciding whether to grant a motion to dismiss, we assume that the applicant will be able to prove everything the applicant alleged in its application to the Commission in order to gain a CPCN. We do not accept as true the ultimate facts, or conclusions, that Applicant alleges, for instance, that granting the CPCN would be in the public interest. After accepting the facts as stated, the Commission then merely looks to its own law and policy. The question becomes whether the Commission and the parties would be squandering their resources by proceeding to an evidentiary hearing when the outcome is a foregone conclusion under the current law and policy of the Commission.34
In Decision (D.) 07-12-052, the Commission articulated its policy "that all long-term procurement should occur via competitive procurements, rather than through pre-emptive actions by the [investor-owned utility] IOU, except in truly extraordinary circumstances."35 In addition, "if an IOU proposes a UOG [Utility owned generation] outside of a competitive request for offer (RFO), the IOU must make a showing that holding a competitive RFO is infeasible."36 The Commission divided the "unique circumstances warranting some form of utility ownership into five categories."37
34 Application of Western Gas Resources-California, Inc., for a Certificate of Public Convenience and Necessity to Provide Public Utility Gas Transmission and Distribution Services Through the Use of Certain Existing Facilities and to Construct Additional Interconnection Facilities, D.99-11-023, 1999 Cal. PUC LEXIS 856, 10-11 (Cal. PUC 1999), footnotes omitted.
35 Opinion Adopting Pacific Gas and Electric Company's, Southern California Edison Company's, and San Diego Gas & Electric Company's Long-Term Procurement Plans, D.07-12-052 at 209, emphasis in original.
36 Id. at 211.
37 Id. at 210.
