Local Government Approval of Transmission Infrastructure

Second Regular Session Seventy-fifth General Assembly STATE OF COLORADO INTRODUCED LLS NO. 26-0106.01 Christopher McMichael x4775 HOUSE BILL 26-1278 HOUSE SPONSORSHIP Richardson, Brooks, Caldwell, Garcia, Goldstein, Hartsook, Johnson, Mauro, Paschal, Soper, Titone, Winter T., Woog SENATE SPONSORSHIP Pelton R. and Snyder, Cutter, Frizell, Hinrichsen, Marchman House Committees Senate Committees Energy & Environment A BILL FOR AN ACT CONCERNING THE PRESERVATION OF LOCAL LAND USE AUTHORITY BY REQUIRING LOCAL GOVERNMENT APPROVAL BEFORE AN INVESTOR-OWNED ELECTRIC UTILITY MAY COMMENCE A C O N D EMNATION TRANSMISSION INFRASTRUCTURE.

PROCEEDING FOR H IG H - V O L T A G E Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://leg.colorado.gov.) The bill requires that an investor-owned electric utility receive a certificate of public convenience and necessity (certificate) from the Shading denotes HOUSE amendment. Double underlining denotes SENATE amendment.

Capital letters or bold & italic numbers indicate new material to be added to existing law. Dashes through the words or numbers indicate deletions from existing law.

public utilities commission and obtain all necessary local government land use approvals and permits prior to initiating any condemnation proceedings related to a high-voltage transmission infrastructure project requiring the certificate. The bill does not change existing application and review processes related to the development of transmission projects that have been established by the public utilities commission or a relevant local government.

Be it enacted by the General Assembly of the State of Colorado: SECTION 1. Legislative declaration. (1) The general assembly finds and declares that:

(a) Projects built by public utilities fulfill an essential public need, supporting the health, safety, economic prosperity, and welfare of Coloradans by ensuring access to electricity, gas, water, and telecommunications services;

(b) Individual property rights are fundamental to our constitutional order, protected by the fifth amendment of the United States constitution and section 15 of article II of the state constitution, which states that "[p]rivate property shall not be taken or damaged, for public or private use, without just compensation";

(c) These constitutional provisions prohibit the taking of private property for speculative or undefined public uses, ensuring that condemnations are necessary, justified, and executed with due process;

(d) Under Colorado law, investor-owned electric utilities that hold a certificate of public convenience and necessity issued by the public utilities commission may initiate condemnation proceedings prior to obtaining all required local government land use permits and approvals, which creates circumstances in which private property is condemned without certainty that the property is necessary for a final, approved project;

(e) Speculative acquisitions of property via condemnation undermine constitutional protections, burden landowners, and erode public trust in both government and utility providers;

(f) Local governments exercise their land use powers to regulate development in harmony with local needs, environmental stewardship, and community priorities. Preserving these powers ensures that investor-owned electric utility projects are implemented with full consideration of local impacts while serving statewide and regional public needs.

(g) Therefore, it is the intent of the general assembly to protect private property rights, uphold constitutional takings standards, and reinforce local government land use authority by clarifying that no condemnation action taken by an investor-owned electric utility may occur until final approval of the project, including local government authorization, has been granted.

SECTION 2. In Colorado Revised Statutes, add 40-5-101.3 as follows: 40-5-101.3.

Construction of electric transmission infrastructure - certificate of public convenience and necessity - eminent domain - approval by local government - definitions.

(1) AS USED IN THIS SECTION, UNLESS THE CONTEXT OTHERWISE REQUIRES:

(a) "INVESTOR-OWNED ELECTRIC UTILITY" OR "UTILITY" MEANS AN INVESTOR-OWNED UTILITY THAT PROVIDES RETAIL ELECTRIC SERVICE AND IS REGULATED BY THE COMMISSION.

(b) "LOCAL GOVERNMENT" MEANS A COUNTY, HOME RULE OR STATUTORY CITY, TOWN, TERRITORIAL CHARTER CITY, OR CITY AND COUNTY.

(c) "TRANSMISSION INFRASTRUCTURE" MEANS HIGH-VOLTAGE TRANSMISSION KILOVOLTS AND IS OWNED AND OPERATED BY AN INVESTOR-OWNED ELECTRIC UTILITY.

INFRASTRUCTURE THAT EXCEEDS ONE HUNDRED

(2) A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY ISSUED BY THE COMMISSION PURSUANT TO THIS ARTICLE 5 DOES NOT CONFER THE POWER OF EMINENT DOMAIN UPON AN INVESTOR-OWNED ELECTRIC UTILITY UNLESS AND UNTIL:

(a) ALL LOCAL GOVERNMENT LAND USE PERMITS AND APPROVALS REQUIRED FOR THE TRANSMISSION INFRASTRUCTURE HAVE BEEN ISSUED BY THE RELEVANT ENTITIES OF THE LOCAL GOVERNMENT WHERE THE TRANSMISSION INFRASTRUCTURE WILL BE LOCATED; AND

(b) ANY TAKING OR DAMAGING OF PRIVATE PROPERTY FOR THE TRANSMISSION INFRASTRUCTURE IS CONDUCTED CONSISTENT WITH

SECTION 15 OF ARTICLE II OF THE STATE CONSTITUTION TO ENSURE JUST COMPENSATION AND PROHIBIT SPECULATIVE TAKING OF PRIVATE PROPERTY.

(3) (a) AN INVESTOR-OWNED ELECTRIC UTILITY THAT HAS RECEIVED A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY FROM THE COMMISSION FOR TRANSMISSION INFRASTRUCTURE SHALL NOT INITIATE CONDEMNATION PROCEEDINGS FOR ANY PROPERTY RELATED TO THE INFRASTRUCTURE UNLESS AND UNTIL THE INVESTOR-OWNED ELECTRIC UTILITY OBTAINS:

(I) ALL LOCAL GOVERNMENT LAND USE PERMITS AND APPROVALS ISSUED BY THE LOCAL GOVERNMENT WHERE THE TRANSMISSION INFRASTRUCTURE WILL BE LOCATED; AND

(II) CONFIRMATION OF THE FINAL APPROVED PROJECT DESIGN FROM THE LOCAL GOVERNMENT SUCH THAT THE SPECIFIC PROPERTY REQUIRED FOR THE TRANSMISSION INFRASTRUCTURE IS IDENTIFIED AND ANY TAKING OR DAMAGING OF PRIVATE PROPERTY REQUIRED FOR THE TRANSMISSION INFRASTRUCTURE IS CONDUCTED CONSISTENT WITH

SECTION 15 OF ARTICLE II OF THE STATE CONSTITUTION.

(b) IF THE TRANSMISSION INFRASTRUCTURE WILL BE LOCATED WITHIN THE JURISDICTION OF MULTIPLE LOCAL GOVERNMENTS, THE INVESTOR-OWNED ELECTRIC UTILITY SHALL MEET THE REQUIREMENTS OF SUBSECTION (2) OF THIS SECTION AND THIS SUBSECTION (3) FOR EACH SPECIFIC LOCAL GOVERNMENT JURISDICTION WHERE THE TRANSMISSION INFRASTRUCTURE WILL BE LOCATED BEFORE INITIATING A CONDEMNATION PROCEEDING RELATED TO THE TRANSMISSION INFRASTRUCTURE WITHIN A SPECIFIC LOCAL GOVERNMENT JURISDICTION THAT HAS NOT YET APPROVED THE TRANSMISSION INFRASTRUCTURE.

(4) THE ISSUANCE OF A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY BY THE COMMISSION PURSUANT TO THIS ARTICLE 5 DOES NOT RELIEVE AN INVESTOR-OWNED ELECTRIC UTILITY FROM THE UTILITY'S OBLIGATION TO OBTAIN ALL NECESSARY LOCAL GOVERNMENT LAND USE PERMITS AND APPROVALS PRIOR TO EXERCISING THE UTILITY'S EMINENT DOMAIN AUTHORITY.

THIS SECTION SHALL NOT IMPACT OR DELAY EXISTING APPLICATION REVIEW PROCESSES OR TIMELINES ESTABLISHED BY THE COMMISSION OR A RELEVANT LOCAL GOVERNMENT.

SECTION 3. In Colorado Revised Statutes, 29-20-108, add (8) as follows:

Local government regulation - location, construction, or improvement of major electrical or natural gas facilities - powerline trail notification - expedited review for certain transmission line projects - transmission infrastructure exception - legislative declaration - definitions.

(8) (a) THIS SECTION DOES NOT APPLY TO LOCAL GOVERNMENT LAND USE PERMITS AND APPROVALS REQUIRED FOR INVESTOR-OWNED ELECTRIC UTILITIES' TRANSMISSION INFRASTRUCTURE, AS GOVERNED BY

SECTION 40-5-101.3.

(b) AS USED IN THIS SUBSECTION (8):

(I) "INVESTOR-OWNED ELECTRIC UTILITY" HAS THE MEANING SET FORTH IN SECTION 40-5-101.3 (1)(a).

(II) "TRANSMISSION INFRASTRUCTURE" HAS THE MEANING SET FORTH IN SECTION 40-5-101.3 (1)(c).

SECTION 4.

Act subject to petition - effective date - applicability. (1) This act takes effect January 1, 2027; except that, if a referendum petition is filed pursuant to section 1 (3) of article V of the state constitution against this act or an item, section, or part of this act within the ninety-day period after final adjournment of the general assembly, then the act, item, section, or part will not take effect unless approved by the people at the general election to be held in November 2026 and, in such case, will take effect January 1, 2027, or on the date of the official declaration of the vote thereon by the governor, whichever is later.

(2) This act applies to condemnation proceedings initiated on or after the applicable effective date of this act.