4. Substantial Contribution to Resolution of Issues

Under § 1802(h), a party may make a substantial contribution to a decision in one of several ways. It may offer a factual or legal contention upon which the Commission relied in making a decision, or it may advance a specific policy or procedural recommendation that the ALJ or Commission adopted. A substantial contribution includes evidence or argument that supports part of the decision even if the Commission does not adopt a party's position in total.⁴

D.02-01-037 and D.02-01-039, with a few exceptions, do not reference the positions taken by parties. However, TURN asserts (and we agree) that by comparing its filings with the decisions, we can determine that TURN made a substantial contribution to the proceeding. In its filings, TURN argued that the Commission possessed the authority to issue the conditions for holding companies, including the ability to enforce those conditions on the holding companies. TURN also argued that the original acceptance of these conditions by the holding companies presumed that they were enforceable at the Commission. TURN also contested the arguments of the holding companies that the conditions imposed by the Commission represented a contractual relationship between the Commission and the holding companies. Both of these positions were adopted by D.02-01-037. TURN's filings made a substantial contribution to resolution of these issues.

In D.02-01-039, we addressed the meaning of the first priority condition. TURN's filings argued that the original conditions adopted in the holding company decisions failed to adopt the Respondents' narrow definition of capital. TURN also argued that the obligation to serve extends beyond maintaining infrastructure, and includes procurement of power. We noted TURN's arguments, as well as those of other parties, and adopted both of these positions in D.02-01-039. TURN's arguments and analysis on these issues made a substantial contribution to this decision.

TURN was most helpful in advocating the importance of applying a ratepayer indifference standard to the consequences of the holding company formations. As TURN noted in its brief, holding companies cannot insist on a one-way flow of capital from utilities to holding companies if this flow would impair the obligation to serve. We agreed with this position in D.02-01-039, and concluded (id., p. 32) that holding companies infuse resources into the utility subsidiaries "to rebalance the scales and make ratepayers indifferent to the continuing asset transfers that formation of the holding company system would require."

TURN also made substantial contributions on the issues of the authority of the Commission over holding companies, the definition of capital, the breadth of the first priority condition and the meaning of the ratepayer indifference standard. Consistent with TURN's arguments, we adopted these positions in D.02-01-037 and D.02-01-039. Taken as a whole, we agree with TURN that its filings and arguments made substantial contributions to D.02-01-037 and D.02-01-039.