IV. Substantial Contribution to Resolution of Issues

Under § 1804(c), an intervenor requesting compensation must provide "a detailed description of services and expenditures and a description of the customer's substantial contribution to the hearing or proceeding." Section 1802(h) states that "substantial contribution" means that,

in the judgment of the commission, the customer's presentation has substantially assisted the commission in the making of its order or decision because the order or decision has adopted in whole or in part one or more factual contentions, legal contentions, or specific policy or procedural recommendations presented by the customer. Where the customer's participation has resulted in a substantial contribution, even if the decision adopts that customer's contention or recommendations only in part, the commission may award the customer compensation for all reasonable advocate's fees, reasonable expert fees, and other reasonable costs incurred by the customer in preparing or presenting that contention or recommendation.

Section 1804(e) requires the Commission to issue a decision that determines whether the customer has made a substantial contribution and what amount of compensation to award. The level of compensation must take into account the market rate paid to people with comparable training and experience who offer similar services, consistent with § 1806.

As provided in § 1802(h), a party may make a substantial contribution to a decision in one of several ways. It may offer a factual or legal contention upon which the Commission relied in making a decision, or it may advance a specific policy or procedural recommendation that the ALJ or Commission adopted. A substantial contribution includes evidence or argument that supports part of the decision even if the Commission does not adopt a party's position in total.

None of SDG&E's arguments address SSRC's claim that it made a substantial contribution to D.03-05-038 and D.03-06-030, and we find that SSRC's contribution was indeed substantial. We discuss each decision in turn.

A. D.03-05-038 Re Applications for Rehearing

The Commission denied SDG&E's and the ISO's applications for rehearing. SSRC notes that because SSRC's counsel had obtained the expertise with regard to need issues in the evidentiary hearing and other proceedings below, SSRC's counsel took the lead, on behalf of the three intervenors (SSRC, the City of Temecula, and the Pechanga Development Corporation) in preparing responses to the rehearing applications and the petition for modification.

SSRC argues, and we agree, that the Commission's decision adopted nearly every position by SSRC in its briefing, as follows:

Deference issue: Did the Commission err in determining that it is not legally obligated to defer to the ISO's determination regarding need? See D.03-05-038, mimeo., at 3-12. SDG&E and the ISO advanced numerous arguments for why the Commission was obligated to and should defer to the ISO's need determination in this case. SSRC's briefing provided the Commission with comprehensive legal research and reasoning responding to each of those arguments. The Commission's decision adopted nearly all of the positions advocated by SSRC. Id. at 3-12. With regard to several of these issues, SSRC was the only party opposed to the rehearing that offered briefing.

Planning horizon issue: Did the Commission err by adopting a five- year planning horizon to assess project need in this case? See D.03-05-038, mimeo., at 12-13. The Commission's decision agreed with SSRC's position that: (1) there was sufficient evidence in the record to support adoption of the five-year planning horizon; and (2) the Commission's adoption of a five-year planning horizon in this case did not, as SDG&E and the ISO asserted, establish a new universally applicable policy. Id.

Official notice issue: Did the Commission err by declining to take official notice of documents regarding Duke Energy's South Bay Unit No. 4? See
D.03-05-038, mimeo., at 14, 19-20. SSRC argued in its brief, and the Commission concluded in its decision, that the Commission properly denied SDG&E's procedurally deficient request for official notice of those documents. Id. The Commission also concurred with SSRC that it was appropriate to count the output of Duke Energy's South Bay Units for purposes of the need assessment in this case. Id. at 16.

RAMCO contracts issue: Did the Commission err by considering the output of two existing generating units in San Diego owned by RAMCO? See
D.03-05-038, mimeo., at 15-16. The Commission concurred with SSRC that it had properly noted the conflicting evidence in the record on this issue and decided to count the output of the RAMCO units based on the weight of evidence presented. Id.

Otay Mesa issue: Did the Commission improperly include the output of the Otay Mesa power plant in the resource tally for its reliability analysis? See
D.03-05-038, mimeo., at 16-17. Citing SSRC's brief, the Commission concluded that there was substantial evidence in the record to support its conclusion in D.02-12-066 that Otay Mesa should be assumed to come online in 2005 as scheduled and as required by contract. Id. at 17 (citing SSRC Brief at 42-48).

Economic displacement issue: Did the Commission err by rejecting the SDG&E/ISO argument that construction of new generation in San Diego would lead inevitably to the retirement of existing generation? See D.03-05-038, mimeo., at 18. SSRC argued, and the Commission concluded, that D.02-12-066 properly considered and rejected the economic displacement argument based on standard industry practice and based on the fact that SDG&E and the ISO failed to introduce adequate evidence to support the argument. Id.

Economic benefits issue: Did the Commission commit legal error in its consideration of SDG&E's economic justifications for the Project? See
D.03-05-038, mimeo., at 18-19. SSRC argued, and the Commission agreed, that neither SDG&E nor the ISO introduced adequate, reliable evidence in support of an economic justification for the Project. Id.

SDG&E load forecast issue: Did the Commission err by failing to acknowledge the ISO's argument -- raised for the first time in its application for rehearing -- that SDG&E's load forecast might be too low? See D.03-05-038, mimeo., at 20. The Commission agreed with SSRC that there was no legal error because the ISO supported adoption of SDG&E's load forecast throughout the proceeding and introduced no evidence that the forecast was too low. Id. at 7.

Mexico issue: Did the Commission err by characterizing its reliability analysis as "conservative" based in part on the fact that it elected not to count on the potential availability of reliability support from Mexico? See D.03-05-038, mimeo., at 21. Both the Commission and SSRC concluded that the record contains sufficient evidence to support the Commission's characterization of its analysis as "conservative." Id.

Based on the foregoing list of issues, it is clear that SSRC made a substantial contribution to D.03-05-038.

B. D.03-06-030 Re Petition for Modification

SSRC also claims that it made a substantial contribution to the Commission's consideration of SDG&E's petition for modification, as shown below, and we agree.

Procedural issues: SSRC argued that SDG&E's petition for modification was procedurally improper because, among other things, it asked the Commission to rely on SDG&E's allegedly new evidence without first providing other parties the opportunity to contradict and/or test that evidence. SSRC also argued the petition contravened clear direction in D.02-12-066 that SDG&E should file a new CPCN application if it believed that it had new evidence of need. See D.02-12-066, mimeo., at 71. The Commission's decision acknowledged and rejected SDG&E's petition for modification based on these procedural arguments. D.03-06-030, mimeo., at 2-4.

Substantive issues: SDG&E's petition cited allegedly new evidence relating to the status of (1) the Otay Mesa power plant, (2) Duke's South Bay Unit No. 4, and (3) its reliability-must-run costs. Commissioner Peevey's draft decision proposed to grant SDG&E's petition for modification based on an assessment that those substantive arguments were new and potentially meritorious. SSRC's opposition to the petition and its comments on Commissioner Peevey's draft decision provided significant legal and factual arguments to support its position that SDG&E's evidence was not actually new and that its arguments based on the evidence lacked merit.

Request for clarification issue: SSRC noted that SDG&E's filings had mischaracterized D.02-12-066 as concluding that the Project would be needed in 2008. Counsel for SSRC filed a request asking the Commission to make clear that D.02-12-066 actually contained no such conclusion. See Community Intervenors' Request for Clarification (February 24, 2003). The Commission's decision denying SDG&E's petition for modification resolves the request for clarification by noting that D.02-12-066 "does not conclude when SDG&E will experience a capacity deficiency after the adopted five-year planning horizon ends." See
D.03-06-030, mimeo., at 1.

Thus, we find that SSRC made a substantial contribution to D.03-06-030.

C. Division of Labor With Other Parties

As it did in SSRC's prior request for compensation, SDG&E asserts that it was unjust for SSRC to bear the lion's share of the workload given that it partnered with the City of Temecula and the Pechanga Development Corporation, entities that were ineligible for compensation. D.03-10-056 concluded that no new rule governing allocations of work between parties eligible for intervenor compensation and those with similar positions who are not eligible should be adopted. We do not disturb that finding today.

Thus, we make no reduction to SSRC's award based on the claim that it should have allocated more of the work to other parties.