4. 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 the claimed contributions Sustainable Conservation made to Resolution E-4137 and D.08-02-010.
4.1. Substantial Contributions to Resolution E-4137
Sustainable Conservation states that its contributions to Resolution E-4137 were numerous. The Resolution agreed with positions taken by Sustainable Conservation on the issues of requiring SCE to offer an excess sales option, restrictions on additional incentives, and the need to address the definition of green attributes. Additionally, the Resolution acknowledged the importance of other policy issues raised by Sustainable Conservation, even though the Resolution did not adopt those positions.
Excess Sales: Sustainable Conservation protested two components of the excess sales option. First, as discussed in the context of the application for rehearing, Sustainable Conservation advocated for SCE to offer the excess sales option, as required in D.07-07-020.6 Second, Sustainable Conservation protested the fact that SCE's tariff would have allowed SCE to obtain all the green attributes associated with the generating facility, instead of only those proportionate to electricity purchased from the facility. The Resolution agreed with Sustainable Conservation on both points:
Finding 6. No other purchase requirement or model was presented, so all tariffs should offer consistent "full buy/sell" or "excess sales" options. (E-4137 at 24.);
And
Absent a stated reason otherwise, the Commission-adopted "excess sales" approach is expected to be the same for all three IOUs. SCE is therefore ordered to come into compliance with the PG&E treatment. (E-4137 at 16.)
We find that Sustainable Conservation made a significant contribution on this matter.
Additional Incentives: Sustainable Conservation pointed out that the language in PG&E's tariff could be interpreted to prohibit a customer-generator from taking advantage of utility incentives not related to generating facilities, for example energy efficiency programs.7 The Resolution agrees: "This protest is upheld and PG&E is ordered to make the necessary changes in AL 3100-E and AL 3098-E." (E-4137 at 21.)
We find that Sustainable Conservation made a significant contribution on this matter.
Definition of Green Attributes: In its protest to the advice letters, as well as in focused filings in other related dockets, Sustainable Conservation pointed out problems with the definitions of renewable energy credits and green attributes. Specific to the Resolution, Sustainable Conservation identified in its protest and comments on the draft Resolution, problems with how those terms are used in practice in the tariff.8 Sustainable Conservation noted that these issues are being considered in another docket, R.06-02-012, and that the tariffs may need to be revised to accommodate any modifications in that proceeding. The Resolution finds: "The protest to change the definition of Green Attributes is denied here, with the caveat that the issue should be addressed in the appropriate venue" (Resolution E-4137 at 22) and "At this time, no accommodations are necessary, but the possibility is rightly noted in the Findings" (Resolution E-4137 at 23). Furthermore, Finding 10 states that: "Definitions of Green Attributes and the ownership of tradable GHG emission credits are outside the scope of this decision, but are considered by the Commission in R.06-02-012 and tariffs may need to be revised to accommodate any modifications ordered in this proceeding." (Emphasis added.)
Sustainable Conservation submits that it made a substantial contribution on this issue by raising concerns here that have kept the definitions of green attributes at the forefront for Commission consideration. Also, Sustainable Conservation asserts it has helped to facilitate the need to address these concerns in R.06-02-012, because the outcome in that proceeding affected the tariffs at issue here.
We disagree with this assessment because we addressed the matter in another proceeding. We find that Sustainable Conservation did not make a significant contribution on this matter in this proceeding.
Interconnection Procedures: Sustainable Conservation questioned PG&E's use of the Small Generator Interconnection Procedure (SGIP), governed by the Federal Energy Regulatory Commission, rather than the Commission's Rule 21 employed by other utilities in their tariffs.9 Sustainable Conservation's protest on this issue objected to the Federal Energy Regulatory Commission process as being more complex and burdensome for small generators whose primary business is farming, not energy generation, and as a violation of precedent that assigns the subject to State jurisdiction, rather than to the federal government. The Resolution declined to rule on legal arguments presented by Sustainable Conservation, instead finding that either process meets the "orderly and timely interconnection procedures and processes" requirement in D.07-07-027.10 The Resolution notes that the denial of the protest is "based on a narrow reading of D.07-07-027" (at 20).
Sustainable Conservation provided analysis on issues related to PG&E's proposed interconnection tariffs. Sustainable Conservation attempted to reach an agreement with PG&E on this issue, and filed a protest on this topic when efforts to reach an agreement were not successful. Nearly every utility subject to the Commission's jurisdiction, except PG&E, filed advice letters using Rule 21 as the right vehicle for interconnection. Sustainable Conservation successfully argued against PG&E's position that the federal SGIP process should be the only interconnection process available.
Sustainable Conservation should be compensated for the time it spent on this issue. The organization's persistence on this issue has highlighted the importance of interconnection for small renewable generators. It has further alerted the Commission that it should be ready to address any interconnection problems that may arise on a case-by-case basis.
Although we did not adopt Sustainable Conservation's specific tariff-related recommendations, we acknowledge that they helped contribute to a more thorough analysis and made a substantial contribution on this matter.
Departing Load Charges: Sustainable Conservation protested SCE's provision that could allow for departing load charges to be applied under this tariff, in direct contravention of SCE's departing load tariff. Sustainable Conservation requested that the departing load provisions be deleted from the tariff. 11 The Resolution declined to make this change, but agreed that the provision is extraneous in light of SCE's departing load tariff: "While agreeing with the protestants that this type of generation is exempt from Departing Load tariffs, CPUC staff finds that there is no compelling reason to remove § 6.6 of SCE's filing." (Resolution E-4137 at 17.)
We do not find that Sustainable Conservation made a significant contribution on this issue because departing load charges are not applicable to this tariff.
In summary, we find that Sustainable Conservation made a substantial contribution to Resolution E-4137 in 3 out of 5 areas they supported and should be compensated proportionately for these efforts.
4.2. Substantial Contributions to D.08-02-010
Applications for rehearing of D.07-07-027 were filed by SCE and CEERT. SCE objected to the requirement in D.07-07-027 for utilities to offer eligible generators an option of "full buy/sell" or "excess sales" contracts. SCE also argued that the Commission did not have the authority to expand application of the tariff beyond public water and wastewater agencies.
Sustainable Conservation filed a response to SCE's application for rehearing and explained how D.07-07-027 was correctly based on the record and the law.12 D.08-02-010 agreed with Sustainable Conservation that the excess sales option is legal:
Absent any language SCE erroneously reads into § 399.20, there is no conflict between the excess sales approach we set forth in D.07-07-027 and § 399.20. The excess sales option we set forth in D.07-07-027 therefore represents a reasonable interpretation that is consistent with the plain language of § 399.20.13
and
... by providing both the "full" and "excess" sales options in D.07-07-027, we are acting in a manner consistent with the plain language of § 399.02 and in furtherance of the broader scheme of which § 399.20 is a part.14
D.08-02-010 also agreed with Sustainable Conservation that the Commission has broad constitutional and statutory authority and can lawfully expand the program. D.08-02-010, at 9, cited the exact case law presented in Sustainable Conservation's Response to the application for rehearing.
Sustainable Conservation supported the application for rehearing from CEERT, agreeing with CEERT that the Commission must determine the Market Price Referent (MPR) in the renewables portfolio standard program as a method for allocating costs between regular energy charges and public goods charges. Sustainable Conservation urged the Commission to make clear that the MPR used to establish the tariff rate does not reflect the value of renewable power alone. D.08-02-010 modified Finding of Fact in D.07-07-027 to note that the MPR "... is not intended to serve as either the floor or ceiling price paid for renewables procurement generally." (Ordering Paragraph 1.)
We find that Sustainable Conservation made a significant contribution to D.08-02-010 as outlined above and should receive full compensation for its participation subject to our examination of its reasonableness of hours and productivity.
5 D.98-04-059, 79 CPUC2d 628 at 653.
6 Protest of Sustainable Conservation, California Farm Bureau Federation and Western United Dairymen to SCE Advice Letter 2148-E, August 22, 2207 at 2-3, and Reply Comments of Sustainable Conservation and California Farm Bureau on Draft Resolution E-4137, December 12, 2007.
7 Protest of California Farm Bureau Federation, Sustainable Conservation and Western United Dairymen to Pacific Gas and Electric Company Advice Letter 3100-E, August 23, 2007 at 3-4.
8 See August 23, 2007 Protest to PG&E Advice Letter at 4-5; August 22, 2007 Protest to SCE Advice Letter at 3-4; December 7, 2005 Comments on Draft Resolution E-4137.
9 August 23, 2007 Protest to PG&E Advice Letter; September 6, 2007 Protest to PG&E Advice Letter.
10 D.07-07-027 at 41 and 56.
11 Protest of Sustainable Conservation, California Farm Bureau Federation and Western United Dairymen to SCE Advice Letter 2148-E, August 22, 2007 at 5.
12 Response of Sustainable Conservation to Application for Rehearing of Decision 07-07-027 at 2-5, September 10, 2007.
13 D.08-02-010 at 6.
14 Ibid. at 8.
