12. Assignment of Proceeding

Michael R. Peevey is the assigned Commissioner, and Burton W. Mattson is the assigned ALJ in this proceeding.

Findings of Fact

1. Sustainable Conservation has satisfied all the procedural requirements necessary to claim compensation in this proceeding. Sustainable Conservation made a substantial contribution to D.07-07-027 as described and adjusted herein.

2. Sustainable Conservation requested hourly rates for its representatives that are reasonable when compared to the market rates for persons with similar training and experience.

3. The total of the reasonable compensation is $21,482.75.

4. The Appendix to this decision summarizes today's award.

Conclusions of Law

1. Sustainable Conservation has fulfilled the requirements of §§ 1801-1812, which govern awards of intervenor compensation, and is entitled to intervenor compensation for its claimed expenses, as adjusted herein, incurred in making substantial contributions to D.07-07-027.

2. Sustainable Conservation's amended claim filed on February 22, 2009, should be handled in R.08-08-009.

3. Sustainable Conservation should be awarded $21,482.75 for its contribution to D.07-07-027.

4. This order should be effective today so that Sustainable Conservation may be compensated without further delay.

5. This proceeding should be closed.

ORDER

IT IS ORDERED that:

1. Sustainable Conservation is awarded $21,482.75 as compensation for its substantial contributions to Decision 07-07-027.

2. Sustainable Conservation's amended claim filed on February 22, 2009 will be resolved by a decision in Rulemaking 08-08-009.

3. Within 30 days of the effective date of this decision, Pacific Gas and Electric Company, San Diego Gas & Electric Company, and Southern California Edison Company shall pay Sustainable Conservation their respective shares of the award. We direct the three utilities to allocate payment responsibility among them, based on their California-jurisdictional gas and electric revenues for the 2007 calendar year, to reflect the year in which the proceeding was primarily litigated. Payment of the award shall include interest at the rate earned on prime, three-month commercial paper as reported in Federal Reserve Statistical Release H.15, beginning December 29, 2008, the 75th day after the filing date of Sustainable Conservation's request for compensation, and continuing until full payment is made.

4. Rulemaking 06-05-027 is closed.

This order is effective today.

Dated September 24, 2009, at San Francisco, California.

APPENDIX

Compensation Decision Summary Information

Compensation Decision:

D0909045

Modifies Decision?

N

Contribution Decision(s):

D0707027

Proceeding(s):

R0605027

Author:

ALJ Division

Payer(s):

Pacific Gas and Electric Company, San Diego Gas & Electric Company, and Southern California Edison Company

Intervenor Information

Intervenor

Claim Date

Amount Requested

Amount Awarded

Multiplier?

Reason Change/Disallowance

Sustainable Conservation

10/15/08

$30,394.50

$21,482.75

No

Simple miscalculations, failing to make a substantial contribution, and duplication of efforts.

Advocate Information

First Name

Last Name

Type

Intervenor

Hourly Fee Requested

Year Hourly Fee Requested

Hourly Fee Adopted

Allen

Dusault

Expert

Sustainable Conservation

$220

2006

$220

Allen

Dusault

Expert

Sustainable Conservation

$220

2007

$220

Jody

London

Expert

Sustainable Conservation

$175

2006

$175

Jody

London

Expert

Sustainable Conservation

$180

2007

$180

(END OF APPENDIX)

Commissioner Bohn's Dissent on D.09-09-045

I dissent from this decision. We have gone to absurd lengths in this proceeding to assist Sustainable Conservation in its quest to be eligible for and receive intervenor compensation. The fact of the matter is, based on the information it provided to this Commission, Sustainable Conservation is not eligible for intervenor compensation for its work on D.07-07-027.

Let me be clear - I fully support the intervenor compensation program. I am mindful of the fact, however, that the Intervenor Compensation Statute is meant to address a particular problem, i.e., that the Commission may benefit from the participation of certain groups in its proceedings that (a) cannot afford to participate in our proceedings and (b) represent the interests of ratepayers. The Legislature, by including specific limitations in the Intervenor Compensation Statute about who should be eligible for and receive intervenor compensation, made its intent clear that the intervenor compensation program should be administered to further these goals. By voting out this decision, a majority of this Commission has chosen to not follow the language of the Statute and the Legislature's intent with regard to the intervenor compensation program.

I disagree with the outcome of this decision for three fundamental reasons: (1) Sustainable Conservation's request for intervenor compensation was not timely filed; (2) Sustainable Conservation did not meet the definition of a Category 3 customer when it participated in D.07-07-027; and (3) Sustainable conservation has not demonstrated significant financial hardship. I emphasize that all of these reasons are focused on process. I do not pass judgment on Sustainable Conservation's contribution to the decision at issue, D.07-07-027. In fact, based on my discussions with the assigned ALJ and others, Sustainable Conservation provided valuable input into this proceeding, and, I hope, will continue to do so in future proceedings.

Sustainable Conservation's request for intervenor compensation filed on October 10, 2008 is untimely because the request is for the same work on the same decision as a claim the Commission considered and rejected in a prior Commission decision, D.08-07-021. This decision appears to set the following novel precedent: if the Commission, in a final decision, rejects an intervenor's request for intervenor compensation on the grounds that it did not qualify as a particular class of customer, that intervenor may file another request for intervenor compensation claiming to be eligible as another class of customer.  This is an absurd result. It is a waste of Commission resources and it frustrates the intent of the Intervenor Compensation Statute.  Intervenors should not get a second bite of the apple by being given the opportunity to file repetitive or duplicative requests for intervenor compensation.  Moreover, Sustainable Conservation failed to avail itself of the appropriate procedural avenues, namely, to file an application for rehearing or a petition for modification of D.08-07-021.

By adopting this decision, the Commission has chosen to leave the door wide open for potential future abuse of the Commission's intervenor compensation program. Parties who are found to be ineligible because they do not qualify for intervenor compensation by Commission decision may simply refile requests, perhaps intending to wear down the Commission with multiple requests or waiting for the terms of Commissioners to expire with the hope that new appointees will give them a more favorable result.

Sustainable Conservation also does not qualify as a Category 3 customer. Sustainable Conservation was on notice as of October 30, 2006, that its Bylaws were deficient.  Because Sustainable Conservation's Bylaws do not meet the statutory requirements of Public Utilities Code section 1802(b)(1)(C), it does not qualify as a Category 3 customer. In reaching this determination, I did not consider Sustainable Conservation's Revised Bylaws of October 2, 2008 in determining whether it qualifies as a Category 3 customer as they were revised fifteen months after the decision upon which Sustainable Conservation's claim for intervenor compensation is based. This Commission cannot, as a matter of process, grant intervenor compensation to a party that is not eligible during the time period for which it is requesting intervenor compensation. 

Lastly, Sustainable Conservation has not demonstrated significant financial hardship as required by the Intervenor Compensation Statute.  The purpose of the significant financial hardship requirement is that the Commission has a duty to ensure that residential and small commercial customers only pay for intervenor compensation or groups that meet the statutory requirements.  There are many groups out there that do good work in worthwhile areas, but this Commission is only supposed to provide intervenor compensation to groups that meet the statutory requirements, and at this time, Sustainable Conservation does not qualify.

Sustainable Conservation provided very limited information on financial hardship in its most recent request for intervenor compensation despite the fact that this Commission informed Sustainable Conservation D.08-07-021 that it had not made a sufficient showing in its Original and Amended Claims to allow the Commission "to determine whether Sustainable Conservation has the type of financial interest in the outcome of this proceeding that may render it ineligible for intervenor compensation. . ." (D.08-07-021, Appendix B, p. 7.) We encouraged Sustainable Conservation to, in the future, "further explain whether any donors or members of its Board of Directors have a financial interest in a proceeding in which Sustainable Conservation is seeking intervenor compensation should it pursue eligibility as either a Category 1 or 3 customer." (D.08-07-021, Appendix B, pp. 7-8.). Sustainable Conservation did not provide any additional information in its most recent Claim, and has not made an adequate showing of significant financial hardship for its work on D.07-07-027.

I do not conclude that Sustainable Conservation cannot demonstrate significant financial hardship, but rather, that it simply has not provided sufficient information in order to make a finding of significant financial hardship at this time. I note that the Commission must be careful in determining who is eligible for intervenor compensation. This decision seems to stand for the proposition that it does not matter if a request for intervenor compensation is timely filed, if an intervenor meets the statutory definition of "customer", or if an intervenor has established significant financial hardship. Under this decision, groups that may profit from their advocacy in our proceedings may also be found eligible for, and indeed awarded, intervenor compensation. The Legislature did not intend for this Commission to award intervenor compensation to groups that have a financial interest in the outcome of a decision or a proceeding, and I do not think that this Commission should be opening the door to this possibility.

For the aforementioned reasons, I dissent from this decision.

John A. Bohn

Concurrence of Commissioner Rachelle Chong

Decision Granting Intervenor Compensation to

Sustainable Conservation - Item 33

September 24, 2009

I believe that Sustainable Conservation has met the burden of proving that it is a Category 3 customer.

Sustainable Conservation's bylaws (prior to amendment) generally noted that its mission was to "represent interests related to the Corporation's conservation activities in regulatory, judicial and legislative proceedings." Commissioner Bohn's Alternate takes issue with the group's bylaws, because they do not include explicit language that the group's purpose was to represent residential and/or small commercial customers. However, I was persuaded by the Proposed Decision and evidence that we have many other participants that have been deemed eligible Category 3 customers, whose bylaws do not contain the explicit language in Pub. Util. Code Section 1801(b)(1)(C).

I understand, for example, that the bylaws of the National Resources Defense Council (NRDC0 contain language very similar to Sustainable Conservation's bylaws. The NRDC has been an eligible I Comp participant at the CPUC for 20 years.

Further, I am persuaded that the legislative intent was for us to administer these provisions in a manner that encourages "effective and efficient participation of all groups that have a stake" in our process.

I understand that the Alternate finds it improper that Sustainable Conservation is seeking to "revisit" the issue of its eligibility. However, even though the CPUC voted earlier that Sustainable Conservation is not eligible under Category 1, we had not voted on the prior ALJ ruling that Sustainable Conservation is not a Category 3 customer.

The current item on whether Sustainable Conservation meets Category 3 status is the first time the Commission is considering this issue. Because of some of the unique factors in this case and because I believe that initial ALJ ruling was incorrect, I do not agree that it is improper that we consider Sustainable Conservation's claim as a Category 3 customer at this time.

The remainder of the item outlines that Sustainable Conservation has met the other prongs of the test to demonstrate that it is an eligible Category 3 customer, and that it has made a substantial contribution.

Dated September 24, 2009, at San Francisco, California.

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