Background
In Decision (D.) 01-05-059, the Commission granted PG&E's application for a certificate of public convenience and necessity (CPCN) to build a new 7.3 mile 230 kilovolt (kV) double-circuit transmission line, upgrade certain other transmission facilities, and construct a transmission/distribution substation to serve the Northeast San Jose area. The Commission found that PG&E had demonstrated the need for the project to maintain the reliability of its electric system.
The Commission chose the environmentally superior route for the project, as set forth in the Final Environmental Impact Report (FEIR). The decision adopted PG&E's proposed substation location at 1515 Alviso-Milpitas Road2 and rejected the alternate - and adjacent - location proposed by the intervenor US Dataport, Inc. Finally, PG&E was directed to prepare updated, and detailed, cost estimates for the route and substation location selected.
PG&E submitted its updated cost information on June 18, 2001. The new cost estimate exceeded by more than $100 million the original estimate PG&E furnished for the project. D.01-05-059 was thereafter stayed and further hearings were ordered on cost. On December 11, 2001, the Commission approved the project and established the project's cost cap at $147,542,555. (D.01-12-017.)
On March 25, 2002, Calpine filed a motion to compel PG&E to comply with § 625. In that motion, Calpine states that on or about March 1, 2002, PG&E filed an action to condemn the property and an ex parte application for prejudgment possession. The superior court issued an order granting possession of the property to PG&E.
Calpine contends that PG&E must obtain Commission authority under § 625 before it can continue with its eminent domain proceed to acquire property for its Los Esteros substation. Calpine further states that until PG&E requests such permission, and the Commission, pursuant to § 625, has made the requisite findings, PG&E has no lawful authority to commence or to maintain an action to acquire any of Calpine's property through condemnation. Calpine therefore requests an order compelling PG&E to comply with the requirements of § 625. Alternatively, Calpine requests that the Commission order a hearing to determine whether the proposed condemnation is subject to § 625 requirements.
Calpine's March 25 motion contends that there is a "high likelihood" that the property will be used, in part, for competitive telecommunications services. Calpine states that the transmission lines leading to and facilities to be located on the substation "could" carry and "likely" will include telecommunications facilities which PG&E itself will offer to be used on a competitive basis. In support, Calpine cites PG&E's increased project cost estimates for fiber optic facilities. Calpine adds that PG&E has engaged in other fiber optic leases using similar facilities.
On March 27, 2002, PG&E filed an opposition to Calpine's motion, in which PG&E maintains that § 625 is inapplicable because the property is not being acquired to provide competitive service. PG&E argues that § 625 does not apply unless and until it seeks to install facilities for competitive purposes. PG&E also argues that Calpine waived any right to raise a § 625 claim by not earlier making the claim. On April 2, 2002, Calpine filed a reply,3 stating, among other things, that its actions cannot deprive the Commission of subject matter jurisdiction to determine the applicability of § 625.
2 The subject property is owned by North San Jose Energy Center, LLC, an affiliate of the movant Calpine. 3 Administrative Law Judge (ALJ) Thomas granted Calpine leave to file a reply.
