Substantial Contribution

In evaluating whether a customer made a substantial contribution to a proceeding, we look at several things. First, did the ALJ or Commissioner adopt one or more of the factual or legal contentions, or specific policy or procedural recommendations put forward by the intervenor? (See Section 1802(h).) Second, if the customer's contentions or recommendations paralleled those of another party, did the customer's participation materially supplement, complement, or contribute to the presentation of the other party or to the development of a fuller record that assisted the Commission in making its decision? (See Sections 1802(h), 1802.5.) As described in Section 1802(h), 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

Even where the Commission does not adopt any of the customer's recommendations, compensation may be awarded, if, in the judgment of the Commission, the customer's participation substantially contributed to the decision or order.⁴ With this guidance in mind, we turn to the claimed contributions NRDC made to the proceeding. As discussed below, examination of D.04-12-016 readily confirms NRDC's claimed contributions.

NRDC Recommendation: Explore alternatives to Mohave continuing operation as a coal-burning plant. NRDC's alternative proposal consisted of three components: energy efficiency projects, renewable energy investments, and building an integrated gasification combined-cycle power plant (IGCC).

Commission Action: Ordering Paragraph (OP) 3 directs SCE to "explore alternatives to Mohave continuing operation as a coal-burning plant." By directing SCE to further study these proposals, we recognized the potential of these alternatives. In particular, we referenced our interest in NRDC's IGCC proposal and largely adopted NRDC's recommendations on alternatives, and on the IGCC concept.

NRDC Recommendation: Only allow SCE to recover its costs for keeping the "Mohave open" option alive. NRDC argued in the proceeding that only the costs associated with ongoing water studies, the coal washing study and environmental report, and the alternatives study should be recovered by SCE. With the uncertainties surrounding the water and coal issues still unresolved, NRDC urged the Commission to only allow SCE to move forward with critical path expenditures that would preserve the "Mohave open" option and to explore alternatives.

Commission Action: OP 1 authorized SCE to "spend necessary and appropriate funds on critical path investments at Mohave ... including the C-Aquifer studies and an alternatives feasibility study."

NRDC Recommendation: Only allow SCE to recover 56% of the costs associated with the critical path expenditures to reflect SCE's 56% ownership of Mohave.

Commission Action: OP 2 authorized SCE to recover 56% of the critical funding costs and 100% of the alternatives feasibility study.

NRDC Recommendation: NRDC suggested that periodic updates on progress on the water and coal issues, the alternatives feasibility study, the disposition of the other Mohave co-owners to the retrofit project and SCE's "Gantt" timeline for the retrofit be made by SCE.

Commission Action: We directed SCE to "file monthly reports with the Energy Division" covering the topics suggested by NRDC. (D.04-12-016, mimeo., p. 61.)

NRDC Recommendation: Even with the environmental retrofits required by the Consent Decree, Mohave will continue to emit carbon.

Commission Action: We directed SCE to report back on the status of carbon regulation " . . . when Edison files its application for full authorization to do the Mohave retrofits." (D.04-12-016, mimeo., p. 17.) This action tacitly accepts that concern over carbon emission is likely to continue.

NRDC Recommendation: The terms of the Consent Decree require shut-down of Mohave post 2005 and parties should not speculate that this date and/or other terms of the Consent Decree will change.

Commission Action: We advised that "[N]o matter what the ultimate fate of Mohave's future will be, it appears that pursuant to the terms of the Consent Decree, the plant will have to temporarily shut-down at the end of 2005." (D.04-12-016, mimeo., p. 62.) This finding implicitly accepts NRDC's recommendation.

NRDC Recommendation: Alternatives do not necessarily conflict with tribal economic concerns. NRDC presented testimony on the renewable potential on tribal lands.

Commission Action: We directed SCE to conduct the alternatives feasibility study. The NRDC recommendation provided support for this directive.

NRDC Recommendation: Once the retrofits are installed at Mohave, the plant should not be evaluated on a typical 30-year life cycle because Mohave's water supply for cooling purposes at the plant terminates in 2026. Therefore, when the Commission evaluates the cost of the plant, it should use a 17-20 year plant life, not a 30-year.

Commission Action: We stated that the cost estimate should be based on a plant life of 17-20 years. (D.04-12-016, mimeo., p. 9.)

NRDC Recommendation: The Commission should not issue a conditional certificate of public convenience and necessity (CPCN) as urged by Peabody, the Hopi Tribe and the Navajo Nation.

Commission Action: We rejected the concept of issuing a conditional CPCN, saying that one would "thwart, not facilitate, the parties' continued negotiations on the other unresolved issues - most importantly the cost of coal and water . . . "

NRDC Recommendation: The Commission should only place limited weight on a prior Mitigated Negative Declaration (MND). The Navajo Nation had asked the Commission to take official notice of a MND from 2000, but NRDC argued the MND was outdated.

Commission Action: We said "[W]e will allow notice to be taken of this MND with the caveat that the Commission is not making a finding in this decision whether or not further environmental review of the project may be necessary, and with the further specification that the MND from 2000 may be outdated by the time the project needs to be reviewed again." (D.04-12-016, mimeo., pp. 20-21.)

NRDC Recommendation: Do not prejudge the outcome of the alternatives study.

Commission Action: We stated " it is not prejudging the outcome of the alternatives study." (D.04-12-016, mimeo., p. 16.)

NRDC Recommendation: Intervenors should be eligible for follow-up work ordered in the decision.

Commission Action: We adopted NRDC's recommendation that intervenors be allowed to seek compensation for additional work resulting from the decision. (D.04-12-016, mimeo., p. 16.)

The Commission has awarded full compensation even where the intervenor's positions were not adopted in full, especially in proceedings with a broad scope.⁵ Here, however, NRDC achieved a high level of success on the issues it raised. The proceeding and the Commission's final decision benefited from NRDC's participation.

As described above, this proceeding took over 2 ½ years from its filing in May 2002 until the Commission's final decision on December 2, 2004. In addition, there were over 10 active parties to the proceeding. NRDC coordinated its efforts with other parties, especially the other public interest advocates such as WEC, TURN and ORA, so as to avoid duplication of effort. To this effect, NRDC focused on its expertise on energy and its impacts on the environment. NRDC produced evidence and testimony regarding the alternatives available to replace or supplement SCE's share of Mohave power - in the face of the imminent temporary or permanent shutdown of the plant. NRDC presented alternatives that were mindful of the competing priorities this case presented for the Commission that included concern over the prodigious amounts of water used for slurrying the coal to Mohave and then cooling at Mohave, the environmental impacts of a coal-burning plant in the region of the Grand Canyon, future mercury emission issues, and the economic health and future of the Navajo Nation and Hopi Tribe. In addition, NRDC urged the Commission not to commit SCE ratepayers to pay for the $1.2 billion in required environmental controls and related capital improvements until the water and coal issues are resolved and alternatives are studied. To the extent NRDC's positions were the same as or similar to those of other parties, we find that NRDC's showing supplemented, complemented, or contributed to the showing of the other parties.