6. Assignment of Proceeding

The consolidated proceedings, Application (A.) 00-11-038, A.00-11-056, and A.00-10-028, are assigned to Commissioner Michael R. Peevey and ALJ Steven Kotz.

Findings of Fact

1. TURN has satisfied the various prerequisites for eligibility to receive an award for the work covered in the request for compensation that is resolved in today's decision.

2. Representation in federal trial and appellate litigation constitutes a distinct market for legal services, distinguishable from representation in administrative proceedings such as those at this Commission.

3. The hourly rate ranges that the Commission has approved are specific to intervenors' work at the Commission. Those ranges apply to both in-house and outside counsel.

4. The hourly rates approved today for TURN's outside counsel are specific to judicial appellate proceedings. These rates have no application to work performed in Commission proceedings.

5. The hourly rates approved today for TURN's outside counsel rely on the prior record in this proceeding and on supporting statements by the three electric utilities joining with TURN in a settlement of the hourly rate issue. Each utility states that the range of outside counsel rates incurred by TURN does not exceed corresponding rates incurred by the utility.

6. Although no comprehensive survey was performed of market rates for representation in judicial appellate proceedings, it is unlikely, in light of the statements by the settling utilities, that the survey would show any significant deviation from the hourly rates of TURN's outside counsel.

7. The proposed settlement is reasonable in light of the record taken as a whole, and is also in the public interest.

8. Under the settlement approved in today's decision, TURN is entitled to a further award of $51,613 in compensation for work of TURN's outside counsel. Under the settlement, TURN waives interest on this further award, which resolves all remaining issues regarding TURN's June 2004 request for compensation in this proceeding. The further award should be paid by SCE as the regulated utility directly involved in the judicial litigation from which the award derives.

9. Appendix B to this decision summarizes today's award.

Conclusions of Law

1. The record of this proceeding, as augmented by the statements of the settling utilities in support of the proposed settlement, suggests that the hourly rates of TURN's outside counsel reasonably approximate the "market" rate for judicial appellate litigation services, within the meaning of Public Utilities Code Section 1806.

2. SCE's participation in the proposed settlement should not affect SCE's entitlement, under Public Utilities Code Section 1807, to collect in rates the amount of the intervenor compensation awards pursuant to the proposed settlement or otherwise authorized in today's decision.

3. The proposed settlement is lawful, reasonable in light of the record as a whole, and in the public interest. Therefore, the proposed settlement should be approved.

4. Because today's decision results in part from a settlement, and because of other circumstances discussed in the foregoing Opinion and Findings of Fact, today's decision should be limited to its facts and is non-precedential.

5. Today's decision should not affect the hourly rate ranges that the Commission has approved for intervenors' work (whether performed by in-house staff or outside representatives) in Commission proceedings.

6. SCE should pay the award ordered in today's decision.

7. TURN is not entitled to interest on the award pursuant to the settlement.

8. To ensure that payment of the award in today's decision occurs without further delay, today's decision should be made effective immediately.

ORDER

IT IS ORDERED that:

1. The proposed settlement entered into by The Utility Reform Network and Pacific Gas and Electric Company, San Diego Gas & Electric Company, and Southern California Edison Company is approved.

2. As provided in the settlement approved in Ordering Paragraph 1, The Utility Reform Network is awarded $51,613 as additional compensation for fees of outside counsel used in obtaining judicial review.

3. Southern California Edison Company must pay the full amount of the award, $51,613, within 30 days of the effective date of this decision.

4. Application 00-11-038, Application 00-11-056, and Application 00-10-028 remain open for consideration of the request for compensation filed by The Utility Reform Network in February 2009.

This order is effective today.

Dated February 4, 2010, at San Francisco, California.

MICHAEL R. PEEVEY

President

DIAN M. GRUENEICH

JOHN A. BOHN

TIMOTHY ALAN SIMON

NANCY E. RYAN

Commissioners

APPENDIX A

Section A. - D.05-04-049

Background

These consolidated proceedings include the Post-Transition Ratemaking dockets (A.99-01-016 et al.) in which we addressed post-rate freeze recovery of rate freeze costs, and the Rate Stabilization Plan dockets (A.00-11-038 et al.) in which we addressed PG&E's and Edison's applications for emergency relief from the skyrocketing wholesale electricity prices in 2000. In the Post-Transition Ratemaking dockets, we determined that Pub. Util. Code § 368 bars utilities from recovering, through post-rate freeze rates, costs incurred during the rate freeze. (D.99-10-057, as modified by D.00-03-058.) (Subsequent statutory references are to the Public Utilities Code unless otherwise indicated.) In the Rate Stabilization Plan dockets, however, we ultimately authorized and implemented a rate increase of four cents/kWh in recognition of Edison's and PG&E's increased costs due to the extraordinary circumstances in California's wholesale power markets. (D.01-03-082.)

In November 2000, Edison and PG&E filed separate federal court actions challenging the Commission's jurisdiction to limit the utilities' recovery of their increased wholesale procurement costs.¹⁰ TURN intervened in those actions.

The two federal lawsuits followed different procedural paths. PG&E filed for bankruptcy in April 2001, and the Commission entered into a settlement of the bankruptcy in December 2003. (See D.03-12-035.) Pursuant to the terms of the bankruptcy settlement, PG&E's federal court action will be dismissed.¹¹

The Commission and Edison entered into a Joint Stipulation in settlement of Edison's federal lawsuit on October 2, 2001. TURN appealed the District Court's judgment affirming the settlement to the Ninth Circuit Court of Appeals. On September 23, 2002, the Ninth Circuit affirmed the District Court's judgment in part and certified several questions to the California Supreme Court regarding whether the agreement violated state law.¹² On August 21, 2003, the Supreme Court answered the Ninth Circuit, concluding that the Stipulated Judgment did not violate state law.¹³

As these events were unfolding, TURN in July 2001 filed a request for compensation for the costs, among others, of the first six months of its participation in Edison's and PG&E's federal court actions. The Commission granted TURN's request 11 months later in D.02-06-070, finding that TURN had made a substantial contribution to the various decisions affecting the utilities' ability to recover their costs of wholesale power during the energy crisis. Because the federal lawsuits sought to challenge the Commission's authority to make those decisions, the Commission found that the costs of TURN's federal court work were reasonably incurred in order to make its substantial contribution to the adopted decisions.

Edison and PG&E each applied for rehearing of D.02-06-070 on the issue of compensation for TURN's federal district court work. We denied rehearing of our order, as modified. (See D.03-04-034.) Edison petitioned the Second Appellate District of the California Court of Appeal for writ of review of those orders. On October 8, 2003, the court issued the writ granting review. The court ultimately rejected Edison's appeal on April 19, 2004.¹⁴ Sixty days after the court's decision upholding D.02-06-070 and D.03-04-034,¹⁵ TURN filed this request for compensation. Edison opposes TURN's request only insofar as TURN seeks an award enhancement, full compensation for time spent preparing this request, and compensation for time spent on media and outside lobbying. TURN has replied to Edison's opposition.

(END OF APPENDIX A)

APPENDIX B

Compensation Decision Summary Information

Compensation Decision:		Modifies Decision? Yes, D0504049, D0703017
Contribution Decision(s):	D9910057, D0003058, D0103082, D0206070, and D0304034
Proceeding(s):	A0011038, A0011056, A0010028, A9901016, A9901019, A9901034
Author:	ALJ Kotz
Payer(s):	Southern California Edison Company

Intervenor Information

Intervenor	Claim Date	Amount Requested	Amount Awarded	Multiplier?	Reason Change / Disallowance
The Utility Reform Network	6/21/2004	Court remand	$51,613	No

Advocate Information

NOTE: The hourly fees shown below are approved pursuant to settlement. See Section 3.6 of today's decision.

First Name	Last Name	Type	Intervenor	Hourly Fee Requested	Year Hourly Fee Requested	Amended or Adopted hourly fees
Michael	Strumwasser	Attorney	The Utility Reform Network	$425	2000	$425
Michael	Strumwasser	Attorney	The Utility Reform Network	$459	2001	$459
Michael	Strumwasser	Attorney	The Utility Reform Network	$482	2002	$482
Michael	Strumwasser	Attorney	The Utility Reform Network	$513	2003	$513
Michael	Strumwasser	Attorney	The Utility Reform Network	$550	2004	$550
Fredric	Woocher	Attorney	The Utility Reform Network	$425	2000	$425
Fredric	Woocher	Attorney	The Utility Reform Network	$459	2001	$459
Fredric	Woocher	Attorney	The Utility Reform Network	$482	2002	$482
Fredric	Woocher	Attorney	The Utility Reform Network	$550	2004	$550
Johanna	Shargel	Attorney	The Utility Reform Network	$333	2001	$333
Johanna	Shargel	Attorney	The Utility Reform Network	$350	2002	$350
Johanna	Shargel	Attorney	The Utility Reform Network	$375	2003	$375
Daniel	Sharfstein	Attorney	The Utility Reform Network	$225	2001	$225
Daniel	Sharfstein	Attorney	The Utility Reform Network	$225	2002	$225
Lea	Rappaport-Geller	Attorney	The Utility Reform Network	$225	2001	$225
Lea	Rappaport-Geller	Attorney	The Utility Reform Network	$225	2002	$225
Lea	Rappaport-Geller	Attorney	The Utility Reform Network	$255	2003	$255
Lea	Rappaport-Geller	Attorney	The Utility Reform Network	$295	2004	$295
Lamar	Baker	Attorney	The Utility Reform Network	$225	2002	$225
Lamar	Baker	Attorney	The Utility Reform Network	$225	2003	$225
Becky	Monroe	Attorney	The Utility Reform Network	$255	2003	$255
Becky	Monroe	Attorney	The Utility Reform Network	$295	2004	$295
Joshua	Lee	Analyst	The Utility Reform Network	$140	2002	$140
Joshua	Lee	Analyst	The Utility Reform Network	$140	2003	$140

(END OF APPENDIX B)

¹⁰ Edison v. Lynch et al., Case No. 00-12056-RSWL (Mcx), United States District Court for the Central District of California (Western Division) (filed November 13, 2000), and PG&E v. Lynch, et al., Case No. CV 00-4128 (SBA), United States District Court for the Northern District of California (filed November 8, 2000).

¹¹ PG&E v. Lynch remains an open docket, pending resolution of an appeal of the Commission's decision approving the settlement (D.03-12-035) and of the confirmation order approving the settlement in bankruptcy court (In re Pacific Gas and Electric Company, Debtor, United States Bankruptcy Court, Northern District of California, San Francisco Division, Case No. 01-30923 DM, Confirmation Order, dated December 22, 2003).

¹² Edison v. Lynch, 308 F.3d 794 (9th Cir. 2002).

¹³ Edison v. Peevey (2003) 31 Cal.4th 781. The Ninth Circuit entered final judgment in Edison v. Lynch on December 19, 2003, bringing Edison's federal lawsuit to a close. (See 353 F.3d 648.)

¹⁴ Edison v. CPUC (2004) 117 Cal. App. 4th 1039.

¹⁵ On November 22, 2002, TURN filed a request for intervenor compensation for its work in the federal lawsuits from mid-2001 through September 2002. The Commission denied the request without prejudice because the Commission wanted to await final determinations on the federal lawsuits before evaluating it. (See D.03-12-044.)