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.3

With this guidance in mind, we turn to the claimed contributions TURN and UCS made to the proceeding.

TURN identifies three areas of substantial contribution: reporting and compliance issues; use of short-term contracts; and use of unbundled RECs. TURN made a number of contributions in these areas.

With respect to reporting and compliance issues, the decision adopted several of TURN's positions.4 The decision agreed with TURN's argument that penalties for noncompliance with RPS procurement obligations should be the same for all RPS-obligated LSEs. The decision also adopted TURN's view that ESPs and CCAs should use the same flexible compliance and confidentiality rules as other LSEs, and be subject to the same potential penalties. TURN's contribution on these issues was substantial.

With respect to the use of short-term contracts, TURN sponsored testimony that provided valuable information about contracting for renewable power in other states. TURN's arguments about the importance of long-term contracts to support development of renewable generation in California and the need for further work on the legal prerequisites to the use of short-term contracts were adopted by the decision.

With respect to unbundled RECs, TURN's argument that use of unbundled RECs would not, in itself, solve the problems facing development of new renewable resources contributed to our decision not to authorize unbundled REC transactions in D.06-10-019, though several parties argued in favor of unbundled RECs. This contribution was substantial.

In response to the enactment of SB 107 (Simitian), Stats. 2006, ch. 464, the Commission sought comments from parties on the appropriate implementation of newly modified Section 399.14(b). This section requires the Commission to establish certain minimum requirements in order to authorize the eligibility of short-term contracts for RPS compliance. TURN made a number of contributions toward setting minimum requirements.

With respect to minimum requirements, the decision adopted many of TURN's positions. The decision agreed with TURN's argument that the requirement should be a single minimum quantity of either contracts with new resources or long-term contracts with existing resources. The decision also adopted TURN's view that it would be inappropriate to adopt a 0% standard under Section 399.14(b). TURN's arguments about the minimum requirements applying equally to all RPS-obligated retail sellers was adopted and the decision rejected exceptions based on the individual circumstances of certain retail sellers. The decision agreed with TURN's proposal that Energy Division should have access to any underlying contracts that involve "repackaged" renewable resources and adopted TURN's position that short-term contracts executed prior to the effective date of the order should not be grandfathered. TURN's contribution on these issues was substantial.

With respect to targets for long-term contracts or short-term contracts with new facilities and penalties for noncompliance, we benefited from TURN's analysis and discussion of all of the issues which it raised.

Like TURN, UCS made a number of contributions. The decision adopted a number of UCS' arguments including that minimum long-term contracting requirement should be significantly greater than zero and applied annually, that actual delivered energy should remain the ultimate basis for meeting RPS requirements, and that energy deliveries from any short-term contracts with existing facilities signed in that year may count toward RPS obligations in any year. UCS' contributions on these issues was substantial.

In its Application for Rehearing of D.07-05-028 filed on June 4, 2007, TURN joined with the Green Power Institute (GPI) and UCS to assert that the adopted treatment of confidential information submitted by non-utility retail sellers was inconsistent with the broader confidentiality rules adopted in R.05-06-040. In D.07-07-044, the Commission made modifications to D.07-05-028 to make the treatment of confidential information consistent with the rules adopted in R.05-06-040. TURN made a substantial contribution to D.07-07-044. We do not address in this decision the contributions of GPI or UCS to D.07-07-044.

3 D.98-04-059, 79 CPUC2d 628 at 653.

4 Some of these arguments were made in comments filed jointly with UCS. UCS received an award of intervenor compensation for its contribution to D.06-10-019 in D.07-06-032. We refer only to TURN in the text.

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