4. Contributions of Other Parties
Section 1801.3(f) requires an intervenor to avoid participation that duplicates that of similar interests otherwise adequately represented by another party, or participation unnecessary for a fair determination of the proceeding. Section 1802.5, however, allows an intervenor to be eligible for full compensation where its participation materially supplements, complements, or contributes to the presentation of another party if that participation makes a substantial contribution to the Commission order.
Regarding contributions by other parties, we note that in a proceeding involving multiple participants, it is virtually impossible to completely avoid some duplication of the work of other parties. WEM states that it took all reasonable steps to keep duplication to a minimum and to ensure that its work served to complement and assist the showings of other parties where there was overlap.
PG&E disputes WEM's assertion and explicitly and implicitly alleges that there was an unnecessary duplication of efforts. PG&E's explicit arguments include the claim that parties other than WEM contributed to the planning reserve margin and 1 in 2 year demand forecast requirement. However, WEM identifies eight distinct arguments it made on this issue. Similarly, PG&E asserts that the Center for Energy Efficiency and Renewable Technologies (CEERT) and NRDC addressed GHG issues in their briefs, and that it was the work of these parties, rather than WEM, that contributed to D.07-12-052. WEM points out that it went further then CEERT or NRDC by identifying errors in PG&E's rebuttal to NRDC and in PG&E's reply brief on this issue. Thus, in both instances above, rather than being duplicative, WEM's work supplemented and/or complimented the work done by the other parties.
PG&E also argues that WEM should not be allowed to claim fees for work done by Local Power because Local Power was acting as a separate party and was itself required to comply with the statutory requirements above in order to receive compensation. PG&E's claim that Local Power was acting as a separate party is rooted in three events. First, PG&E claims that Local Power requested and was granted party status on behalf of Local Power at the June 4, 2007 hearing. Second, some witnesses were cross-examined by both Robert Freehling and WEM's Barbra George; PG&E asserts that this evidences Local Power's participation as a separate entity.7 Finally, PG&E notes that Local Power and WEM submitted joint briefs that had separate sections for WEM and Local Power with each entity separately addressing identical issues from the master briefing outline. In its response to these claims, WEM notes that it asked the Commission's process office to add Freehling as an appearance on behalf of WEM in advance of the June 4, 2007 hearing, on May 21, 2007. This request was forwarded to PG&E and all other parties on the service list.8 Moreover, when asked by the Administrative Law Judge (ALJ) about his appearance prior to his first cross-examination, Freehling noted that he was working with both Local Power and WEM. WEM argues that PG&E was obliged to raise any objection to, or seek clarification of Freehling's status well in advance of the request for compensation. Having failed to do so, WEM asserts that PG&E's present claim should be deemed waived.
While we see no reason why PG&E waited until the request for compensation was filed to question Local Power's status as a consultant and/or party, we do not think it appropriate to deem PG&E's claim waived. Instead, we reiterate the finding above, that WEM is a customer within the meaning of § 1801. Pub. Util. Code §§ 1801 et seq. affords customers the ability to compensate experts that assist them. As set forth therein:
The purpose of this article is to provide compensation for reasonable advocate's fees, reasonable expert witness fees, and other reasonable costs to public utility customers of participation or intervention in any proceeding of the commission. (Pub. Util. Code § 1801.)
Similarly, Pub. Util. Code § 1802(c) defines expert witness fees to mean "recorded or billed costs incurred by a customer for an expert witness." Nothing in §§ 1801 et seq. precludes a customer from using the director of another organization as an expert witness. Moreover, PG&E's concern that allowing WEM to use Local Power as a consultant would afford parties an opportunity to do an end-run around intervenor compensation statutes ignores the statutory requirement that the claimed fees must be reasonable. We consider the efficiency of WEM's work and the reasonableness of its costs, including those incurred by Local Power on WEM's behalf, below.
Finally, PG&E implies that WEM's work was duplicative where it claims that "Local Power and WEM separately addressed identical issues from the master briefing outline."9 We disagree with PG&E's assertion.10 PG&E's claim goes to only two of the thirty-two pages in the brief submitted by WEM/Local Power. On the pages PG&E cites, WEM argues that PG&E opposed Community Choice Aggregation (CCA), whereas Local Power argues that decisions made in the Community Choice Proceeding should allow the Long Term Procurement Proceeding decision to be adjusted to facilitate development of CCA. These arguments are complimentary and neither duplicative nor wasteful.
7 Freehling is the Director of Local Power Research.
8 The official service list for the proceeding lists Freehling as having party status for WEM/Local Power.
9 While PG&E also asserts that WEM and Local Power cross-examined the same witness, it does not claim that this questioning was duplicative or redundant.
10 We do however caution intervenors against mixing time claims for eligible and non-eligible participants in billing requests.
