3. Substantial Contribution
In evaluating whether a customer made a substantial contribution to a proceeding, we look at several things. First, we look at whether the Commission adopted one or more of the factual or legal contentions, or specific policy or
procedural recommendations put forward by the customer. (§ 1802(i).) Second, if the customer's contentions or recommendations paralleled those of another party, we look at whether the customer's participation unnecessarily duplicated or materially supplemented, complemented, or contributed to the presentation of the other party. (§§ 1801.3(f) and 1802.5.)
As described in § 1802(i), the assessment of whether the customer made a substantial contribution requires the exercise of judgment.
In assessing whether the customer meets this standard, the Commission typically reviews the record, composed in part of pleadings of the customer and, in litigated matters, the hearing transcripts, and compares it to the findings, conclusions, and orders in the decision to which the customer asserts it contributed. It is then a matter of judgment as to whether the customer's presentation substantially assisted the Commission.5
With this guidance in mind, we turn to contributions CARE made to the proceeding.
SCE filed an application seeking Commission approval of two PPA selected in SCE's Fast Track RFO. CARE was concerned because the contract with Blythe did not address the impact on the community living next to the power plant.
CARE also questioned whether the energy from Blythe was needed. Based on CARE's analysis of SCE's data, CARE claimed that SCE had failed to present any practical basis for its assumptions about plant retirements, and therefore CARE argued that SCE had no evidentiary record to support building new facilities. CARE's primary concern, however, was whether the Blythe facility's production of greenhouse gas emissions had adequately been considered and addressed. CARE argued that the Blythe location is very far from the electric load centers and the transmission line losses are significant. According to CARE, the current governmental effort to reduce greenhouse gas emissions is offset by approving a long-term contract with long transmission lines for providing electricity to distant load centers. CARE states that these concerns were recognized by the Decision even though CARE's recommendations were not adopted.
CARE provided additional information to the Commission in its comments6 and rehearing request7. In support of its concerns, CARE believed that a recent decision of the United States Supreme Court questioned the validity of the contract that the Commission was considering approving. The Commission did not follow CARE's recommendation to delay acting on the application until the contract's validity was determined but the Commission addressed the issue in its decision8 as well as in the decision denying CARE's rehearing request. CARE has filed a complaint9 with the Federal Energy Regulatory Commission (FERC) and appealed10 to the United States Court of Appeals for the Ninth Circuit to address these contract issues, but the proceeding is stayed by the court and parties to the case have been admonished not to file a motion to remove the stay.
CARE contends that its analyses and recommendations on this broader range of issues also made significant contributions to the Commission's deliberations in the Decision. CARE emphasizes that although it has spent considerable resources with the FERC complaint and the appeal to the US Court of Appeals, that they are not seeking any compensation for these efforts at this time. CARE asserts that it has attached an hourly record of these efforts simply to notify the Commission of its pursuit of judicial review of CARE's recommendations that the Commission declined to adopt. CARE will continue to devote its resources to this issue.
In summary, although CARE's recommendations were not adopted by the Commission, its participation served as a catalyst to organize the concerns of the community surrounding the power plant location to ensure that the residents of Blythe and Mesa Verde were aware of the issues that could affect them from any further construction of additional power plants. While the siting of the Blythe plant under consideration by the Commission was not within the scope of the proceeding, the residents of the surrounding area were made aware of the possibility that additional units might be built at the Blythe location and that they should make their voice heard before those plants were built. SCE ratepayers benefit when the Commission has a fully developed record, addressing subjects such as GHG emissions, line-losses when electricity is transported from remote locations to load centers, and use of fresh water for cooling in dry settings. All of these topics were further developed at the PPH and made part of the record for the proceeding. CARE was instrumental in encouraging the Commission to schedule the PPH and organizing the community to attend the PPH.
In this manner, we affirm that CARE's advocacy made a substantial contribution in this proceeding.
5 D.98-04-059, 79 CPUC2d 628 at 653.
6 CARE's Opening Brief, filed on June 20, 2007 and CARE's Comments on Proposed Decision, filed on April 24, 2008.
7 CARE's Rehearing Request of D.08-05-028, filed on June 27, 2008.
8 D.08-10-039.
9 EL07-50.
10 CAE No. 08-70010.
