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.⁶

With this guidance in mind, we turn to the claimed contributions Aglet made to the proceeding.

Aglet alleges that its involvement was extensive and included participation in 20 Commission-sponsored mediation sessions, preparation of an energy auction proposal and comments on the proposed decision, and participation in a workshop. Normally we expect an intervenor to demonstrate a direct connection between the positions it took during a proceeding and either an ALJ's proposed decision or the decision adopted by the Commission. In this case, Aglet failed to provide this direct connection because Aglet believed it was barred by Rule 12.6 which prohibits parties from disclosing the detail of negotiations that led to the adopted settlement. We agree with Aglet that given the unique circumstances of this request, we cannot expect Aglet to demonstrate a direct connection. However, we can conclude from Aglet's request, it did substantially contribute to the settlement. Specifically, in its contribution request, Aglet identified 13 issues that were part of the settlement agreement upon which Aglet claims to have made a substantial contribution. None of the utilities, who will have to pay this contribution request if approved, have objected. Given the confidential nature of settlement discussions and no objections by participants in the settlement discussions to Aglet's claim of substantial contribution, we conclude that Aglet made a substantial contribution to D.07-09-044 through its participation in settlement discussions.

⁶ D.98-04-059, 79 CPUC2d 628 at 653.