4. 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, we look at whether the customer's contentions or recommendations paralleled those of another party, and whether the customer's participation unnecessarily duplicated or 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. (§§ 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.5
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. With this guidance in mind, we turn to the claimed contributions the Mackintoshes made to the proceeding.
The Mackintoshes describe their substantial contribution in table form, which we reproduce in part here.
Mackintoshes' Recommendation (As presented in briefs and comments) |
Commission Action / Finding (As adopted in decisions and rulings) |
The Southern Portion of the proposed project is subject to controversy, and requires detailed consideration. |
The Southern Portion of the proposed project is subject to controversy, and requires detailed consideration. (Interim Opinion Granting Application in Part, D.06-10-047, at 2.) |
The Mitigated Negative Declaration (MND) is inadequate for approval of the Southern Portion; an EIR must be prepared. |
The MND is inadequate for approval of the Southern Portion; an EIR must be prepared. (D.07-03-043, at 1, 17-18.) |
Approval of the Northern Portion of the project does not preclude preparation of an EIR for the Southern Portion. |
Approval of the Northern Portion of the project does not preclude preparation of an EIR for the Southern Portion. (Id. at 9, 17; D.07-07-021, at 4.) |
Alternative configurations could be constructed in the existing right-of-way. |
There is at least one alternative configuration along the existing right-of-way that would not require widening the right-of-way. (D.07-03-043 at 2, 17.) |
The alleged need to rush is entirely due to PacifiCorp's own conduct. |
The alleged need to rush is entirely due to PacifiCorp's own conduct. (Id. at 2, 13-14, 17.) |
PacifiCorp would not be able to secure new rights-of-way in time for a June 2007 completion. |
PacifiCorp will have trouble securing new rights-of-way; Commission "seriously questions" whether in light of this trouble, PacifiCorp could complete the project by June 2007. (Id. at 3, 17.) |
PacifiCorp's request for rehearing on the Commission's decision to require an EIR should be denied. |
PacifiCorp's request for rehearing is denied. (D.07-07-021.) |
Even under the standard expressed in Public Resources Code § 21166, requiring an EIR for the Southern Portion was appropriate. |
Even under the standard expressed in Public Resources Code § 21166, requiring an EIR for the Southern Portion was appropriate. (Id. at 4.) |
Commission did not err in determining that PacifiCorp can avoid curtailment of local load by discriminatorily curtailing its firm transmission. |
Commission did not err in determining that PacifiCorp can avoid curtailment of local load by discriminatorily curtailing its firm transmission. (Id. at 7.) |
Commission should adopt a finding of fact that there was no opportunity to consider testimony from evidentiary hearings at the time the Final MND (FMND) was adopted. |
Finding of fact adopted. (Id. at 10.) |
Commission should adopt a finding of fact that new information that became available after adoption of the FMND indicates that the Southern Portion of the proposed project may have new and significant impacts not considered in the FMND, as well as more severe impacts than those disclosed in the FMND. |
Finding of fact adopted. (Id.) |
Commission should adopt a conclusion of law that new information that became available after adoption of the FMND necessitated preparation of an EIR. |
Conclusion of law adopted. (Id.) |
In its response, PacifiCorp focuses less on whether the Mackintoshes made a substantial contribution than on whether the amount of its compensation request is reasonable, which we discuss below.
We are satisfied that the Mackintoshes made a substantial contribution to this proceeding. From the start, their desire was to achieve further environmental analysis of the proposed line, and to see it rerouted out of the Hoy Valley. In both of these endeavors-which were the key issues discussed in both decisions for which the Mackintoshes seek compensation-they were successful. While the EIR did not select their first choice of alternative routes for technical reasons, the physical path found to be environmentally superior in the EIR is the same path the Mackintoshes proposed. The difference is in the infrastructure used. Thus, we find that the Mackintoshes made a substantial contribution to the outcome of D.07-03-043 and D.06-10-047.
5 D.98-04-059, 79 CPUC2d 628 at 653.
