4. NRDC's Substantial Contributions
In evaluating whether a customer made a substantial contribution to a proceeding, we consider whether the Commission adopted one or more of the factual or legal contentions, or specific policy or procedural recommendations put forward by the customer. If the customer's contentions or recommendations paralleled those of another party, we consider whether the customer's participation materially supplemented, complemented, or contributed to the presentation of the other party or to the development of a fuller record that assisted the Commission in making its decision. The assessment of whether the customer made a substantial contribution requires the exercise of judgment.
Should the Commission 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. For example, if a customer provided a unique perspective that enriched the Commission's deliberations and the record, the Commission could find that the customer made a substantial contribution.
Section 1801.3(f) precludes compensation where an intervenor duplicates the work of similar interests otherwise adequately represented by another party, or work that is unnecessary for a fair determination of the proceeding. Section 1802.5, however, allows an intervenor to be eligible for full compensation if its participation materially supplements, complements, or contributes to that of another party if that participation makes a substantial contribution to the commission order.
NRDC's request for compensation includes three components:4 (1) contributions to D.07-10-032, (2) work on ongoing EM&V issues overseen by the Energy Division, and (3) participation in the Program Advisory Groups (PAG) and Peer Review Groups (PRG) during the compliance phase of the proceeding. NRDC's request includes an account of expenditures for each of these components separately, as well as a description of NRDC's substantial contribution to D.07-10-032. We address each issue area separately below.
4.1. Contributions to D.07-10-032
NRDC states it contributed substantially to many parts of the proceeding leading up to this decision, and several aspects of the final decision reflect NRDC's positions and incorporate its suggestions. For example, NRDC states it commented on the need to improve local government partnerships and count related energy savings towards utility energy efficiency saving goals, provide the utilities funding flexibility and needed consistency to carry-out longer term projects, and address the potential to count embedded energy savings in water conservation towards the utility goals. NRDC states it recommended that the Commission maintain the previously established 2009-2011 utility goals, the "counting" of 50% of pre-2006 and 100% of post-2006 codes and standards advocacy work towards the utilities' savings goals, and the current mid-cycle budget request process. NRDC further suggested extending the post-2013 goals out to 2020 to match the AB 32 timeline. In addition, NRDC states that several of its suggestions for changing the proposed decision were reflected in the final decision, such as provision of utility-specific workshops to receive input from stakeholders on the development of the utilities' 2009-2011 portfolios, clarification of the role of the PRGs going forward, and establishment of the due date for PRG assessment reports to be due 30 days after the utilities' 2009-2011 portfolio applications are filed.
NRDC did contribute to D.07-10-032. However, its contributions were mostly duplicative of the work of other parties and its written products were mostly perfunctory. NRDC did not present any unique analysis, insights or perspectives. NRDC's contributions in workshops were limited. While NRDC takes credit for influencing changes to the proposed decision, those changes were either of limited significance or advocated by other parties. We accept that some duplication may occur in our proceedings and have consistently compensated intervenors whose contributions somehow complemented or supplemented other work. However, we cannot justify ratepayer support for an intervenor that merely recommends ideas that are presented by several other parties and does not provide any new ideas or analysis.
While we wish to encourage participation of diverse consumer representatives, we are also mindful that intervenor compensation is funded through utility rates. Requests for intervenor compensation must demonstrate that the intervenor's participation was meaningful and in some way unique or complementary. NRDC's request for compensation does not make that case, instead merely asserting that a handful of its proposals were adopted, thereby placing the burden on the Commission to research the breadth and depth of NRDC's work in the proceeding.
We find that some of NRDC's work toward D.07-10-032 merits compensation. We discount the hours NRDC claims for work leading to D.07-10-032 and authorize compensation for one-fifth of the hours its claims. We value NRDC's participation in our proceedings. We hope NRDC's contributions in the future will provide more unique perspectives. In addition, its future requests for compensation should address the ways its contributions were unique or complementary and should provide more information about how the Commission's decision made use of those contributions.
4.2. Contributions to PRG/PAG Work
NRDC seeks compensation for its work in informal processes designed to oversee energy efficiency contracting and energy efficiency program development and delivery. It states its request is consistent with D.07-11-024, which clarified the criteria applicable to intervenor compensation for PRG and PAG work.
NRDC states it has attended almost every PAG and PRG meeting for each utility.5 As members of the PAGs, NRDC states it monitored the utilities' program and portfolio performance, and suggested ways to improve customer outreach, cost-effectiveness, and program design.
NRDC states it also played a "key role" in developing a report directed by D.05-01-055 and that was submitted to Energy Division on August 31, 2006. NRDC states it worked with other PRG members to select a contractor that would collect PAG member input, develop a questionnaire to be asked of the PAG members, and compile and edit the joint report to present independent views of PAG members. NRDC believes this report informed several parties' comments in this proceeding regarding the usefulness of the PAG and PRG, and therefore the record of D.07-10-032.
Its work in the PRG included observing the utilities' ongoing competitive solicitation processes and advised the utilities as to the fairness and transparency of the processes. NRDC states it reviewed the utilities' scoring and ranking of third-party proposals, encouraged the utilities to better define "innovation," and ensured open communication by the utilities with third-parties throughout the solicitation and contracting process.
NRDC states that although its participation in the PAGs and PRGs did not result in contributions to a Commission decision, NRDC assisted with the implementation activities of the PAGs and PRGs as described in D.05-01-055 and D.05-09-043.
We appreciate the work of NRDC in the ongoing implementation of energy efficiency programs. We have stated our intent to reimburse intervenors for their participation in PAGs and PRGs and have provided compensation for that work in the past. However, we have concerns that some of NRDC's work as it is described in NRDC's subject compensation request is not consumer representation for which compensation is authorized under Section 1801-1812 and not the type of activities we stated would be eligible for compensation in D.05-01-055. Nevertheless, we give NRDC the benefit of the doubt and compensate most of NRDC's work on the PRGs and PAGs because our orders have not until very recently addressed the type of work that might not be compensable. We expect its future work with PRGs and PAGs will be limited to advocating positions on behalf of ratepayers.
We do not compensate one type of activity; namely, work on a report D.05-01-055 directed our staff to conduct. D.07-10-032 clarified that the Commission may not compensate work that is appropriately the work of Commission staff. Doing so could be considered an infringement on state contracting laws or labor laws. Moreover, California ratepayers already pay for the reasonable costs of energy efficiency program staffing and management and should not have to pay for them twice.
NRDC claims it had a "key role" and seeks compensation for 15 hours of work on a report that D.05-01-055 assigned to Energy Division staff and that would assess the usefulness of the PRGs and PAG. D.05-01-055 states:
We also require Energy Division to provide the Assigned Commissioner with a written assessment of the effectiveness of the advisory group structure we establish in this proceeding, on an annual basis. Energy Division may conduct this assessment itself or hire an independent contractor for this purpose, whose costs will be paid for out of energy efficiency program funds.6
It also stated:
Energy Division shall provide the Assigned Commissioner and assigned ALJ with a written assessment of the effectiveness of the advisory group structure on an annual basis. Energy Division may conduct this assessment itself or hire an independent contractor for this purpose, whose costs will be paid for out of energy efficiency program funds. The first Energy Division assessment shall be due 14 months from the effective date of this decision, and every year thereafter unless otherwise directed by the Assigned Commissioner. The Assigned Commissioner may direct the assigned ALJ to serve the Energy Division assessments on the parties, issue them for comment, or take other steps as appropriate with this information.7
We assigned this report to staff or its consultants and did not delegate this work to intervenors. NRDC was not authorized to work on the report and should have had no expectation of remuneration. To compensate NRDC for this work, which is appropriately the work of staff or its consultants, could represent a violation of state contracting law and labor law. Moreover, we would not have assigned a PRG/PAG member the task of supervising the creation of report on its own performance. Doing so could arguably create a conflict of interest or an appearance of conflict.
We herein find that NRDC made substantial contributions to the PRG and PAG processes. We authorize compensation for NRDC's work on PAGs and PRGs except that we disallow compensation for 15.5 hours of work on the report required by Ordering Paragraph 10 of D.05-01-055.
4.3. Contributions to EM&V Protocols
NRDC states it worked on the development of the EM&V protocols for the 2006-2008 program cycle that was overseen by Energy Division. It states it provided Energy Division comments on the draft EM&V protocols and annual reporting requirements, attended workshops, and informally consulted with Energy Division staff and consultants. NRDC explains that these contributions were not recognized in a Commission decision, NRDC's contributions were recognized in the EM&V protocols, "California Energy Efficiency Evaluation Protocols: Technical, Methodological, and Reporting Requirements for Evaluation Professionals," approved by ALJ ruling on April 25, 2006.
D.05-04-051 directed staff to develop EM&V protocols and to do so using an expedited review process whereby staff would submit draft protocols to the assigned ALJ. The final protocols would be approved by ALJ ruling in consultation with the assigned Commissioner after soliciting and considering written comments from interested parties.8 The Commission specifically directed staff to hold public workshops to obtain and incorporate feedback from interested parties into the staff proposal before submitting the draft protocols to the ALJ.9
NRDC's work on EM&V protocols is reasonable and NRDC made a substantial contribution to the EM&V protocols, consistent with D.05-04-051.
4 NRDC describes its request as including two components by including its informal work with Energy Division staff on EM&V protocols as work that contributed to D.07-10-032. The two types of work are not related in any meaningful way for purposes of NRDC's intervenor compensation request, and we therefore address them separately here.
5 D.07-04-008 awarded NRDC intervenor compensation for its substantial contribution as members of the utilities' PAGs and PRGs through April 13, 2006.
6 D.05-01-055, p. 99.
7 D.05-01-055, Ordering Paragraph 10.
8 D.05-04-051, p. 67.
9 This process is distinguished from the EM&V ad hoc technical review committees convened by Energy Division staff pursuant to D.05-01-055. D.07-10-032 found that intervenor work on these committees would not be eligible for compensation.
