5. Reasonableness; Productivity

After we determine that an eligible intervenor has made a substantial contribution to a Commission decision or order, we analyze the hours worked by the intervenor to determine their reasonableness and productivity. These are similar but distinct concepts.

Reasonableness concerns the relation between the number of hours and the tasks (doing research, preparing testimony, writing briefs, etc.) that the intervenor performed. If an intervenor made a substantial contribution but consumed an inordinate amount of hours in doing so, the Commission will compensate the intervenor only for that number of hours which is reasonable for the tasks performed. Our disallowance (in section 3.4 above) of 40% of TURN's hours in the "General" category was prompted in part by our finding that the hours in this category were excessive. In all other respects, TURN has well documented and justified its hours in terms of the task performed, the date, and the person performing the task. Except as noted, we find that TURN's hours, in relation to the tasks performed, were reasonable.

Productivity concerns the relation between the number of hours and the benefits ratepayers derive from the intervenor's substantial contribution. If the benefits are slight in comparison with the hours expended to achieve them, the Commission may disallow hours to the extent they are found to be unproductive. Sometimes, this comparison is fairly simple, as when the intervenor's substantial contribution results in lower rates or conservation of resources. The comparison is more difficult where, as here, the benefits are intangible. In such situations, we consider the policy goals that the intervenor furthered through its substantial contribution.

Here, the statutory intent is to encourage vigorous intervention in our proceedings by diverse consumer groups. See, e.g., Section 1801.3(b). TURN, through its substantial contribution, has clarified how the Commission should determine hourly rates if the intervenor uses outside counsel in obtaining judicial review. This clarification promotes intervention under the statutory program by reducing the risk that the intervenor's work will not be compensated reasonably. The benefit of this clarification accrues, not only to intervenors, but also to the Commission, and ultimately to ratepayers, in that intervenors contribute to the Commission's factual and legal determinations. In short, we find that TURN's substantial contribution was beneficial, and that the time it expended was productive.