3. 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, if the customer's contentions or recommendations paralleled those of another party, we look at whether the customer's participation unnecessarily duplicated or materially supplemented, complemented, or contributed to the presentation of the other party. (§§ 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.4
With this guidance in mind, we turn to the claimed contributions The Utility Reform Network made to the proceeding.
3.1. Contributions to D.08-07-047
D.08-07-047 sets interim energy efficiency savings goals for 2012 through 2020 for electricity and natural gas on a total market gross basis. For 2009 through 2011, the decision clarifies that our currently adopted energy efficiency savings goals will be defined as "gross"- inclusive of free riders - in order to better reflect changes in underlying energy efficiency calculations since 2004 and to assist utilities in developing portfolios consistent with the upcoming long-term Energy Efficiency Strategic Plan and D.07-10-032.5 NRDC actively participated on these issues.
In its comments on the Assigned Commissioner Ruling of March 25, 2008, NRDC states its support to the Energy Division's recommendations on the energy efficiency savings goals through 2020, but does not provide unique reasoning or present any independent research or in-depth analysis of the related issues.6 Similarly, in its reply comments on the March 25, 2008 ruling,7 NRDC supports other parties' positions without providing additional expert analysis and argument or factual information, except for NRDC's opposition to the Division of Ratepayer Advocates' (DRA) comment on updating goals from 2012 through 2020. As a result, NRDC's substantive comments on specific issues are limited in these filings.
Comments on the proposed decision leading to D.08-07-047 contained more substantive material. However, NRDC's reply comments simply stated support or opposition to other parties' recommendations and did not meet the requirements of Rule 14.3(d) of the Commission Rules of Practice and Procedure to limit the scope of the comments to identifying misrepresentations of law, fact or condition of the record contained in the comments of other parties.
The time NRDC spent on most of the comments is not commensurate with the comments' substantive contents. While we find that NRDC substantially contributed to D.08-07-047, the time NRDC spent on its comments is excessive in comparison to their contents. To reflect the fact that NRDC's comments lacked NRDC's own independent argument, research, in-depth analysis or justification in support of its position, we reduce the time spent towards that decision by 10% (NRDC does not allocate its time by issues and we can only adjust the time by an across-the-board reduction). We allow the rest of the time (adjusted), to reflect the fact that NRDC substantially contributed to D.08-07-047, as described in more detail below.
Total-Market-Gross Goals for 2012 through 2020. NRDC supported Energy Division's recommendations of creating a hybrid total-market-gross (TMG) and investor-owned utilities specific goals structure,8 as well as all other recommendations of the Energy Division.9 Although we note that NRDC's comments lacked in-depth or unique analysis or research which would make NRDC's position distinctive, NRDC did contribute by arguing against opponents to the Energy Division's recommendations and by supporting these recommendations, which were ultimately adopted in the decision.
Use of TMG Goals in Procurement Planning. The final decision requires that 100% of the interim TMG goals adopted in this decision shall be used in future Long-Term Procurement Plan proceedings,10 as consistently recommended by NRDC11 as well as other parties. We note, however, that NRDC's comments lack in-depth or unique analysis and/or research.
Gross Goals for 2009 through 2011. Parties did not reach consensus on whether to use gross or net goals for 2009-2011: four utilities and NRDC12 supported use of gross goals for 2009-2011 while the DRA, CE Council, Women's Energy Matters, and City and County of San Francisco supported the continued use of net goals. NRDC argued that if the 2009-2011 goals were defined as net, the goals would be set at such a high level that the utilities would not realistically be able to meet them and therefore, gross goals would continue to represent stretch goals that are aggressive, achievable, and exceed historical levels of savings. D.08-07-047 adopted the use of gross goals for 2009-2011.13 We find that NRDC contributed to this issue by opposing the use of gross goals.
Updating Goals for 2012 Through 2020. The majority of parties, including NRDC, agreed that setting I would name "the goals or delete the goals for 2012-2020 would benefit from the results of 2006-2008 Impact Evaluation studies, scheduled to be completed in March, 2010.
However, DRA asserted that the update should wait until the Commission's evaluation of the utility risk/reward incentive mechanism is complete and the 2011 minimum performance standard is established (both in February 2011). NRDC presented a well articulated opposition to DRA's recommendation to move the update after February 2011. NRDC explained that implementing DRA's recommendation will not provide adequate time for Investor-owned Utilities (IOU) program planning to occur.14 The Commission discussed both positions:
We agree with DRA that the schedule for updating the 2012-2020 goals should incorporate information from the 2006-2008 Impact Evaluation studies and resulting DEER updates. However, waiting until early 2011 to begin the goals update and establish utility-specific goals would necessarily delay planning and implementation of 2012-2014 energy efficiency portfolios . . . . We also agree with NRDC and the IOUs that the establishment of final goals for 2012-2020 must be completed with adequate time for 2012-2014 portfolio planning to occur. We find that the update must be completed by October, 2010 for adequate portfolio planning lead time.15
We find that NRDC provided substantial contributions to this issue.
Findings of Fact and Conclusions of Law. In order to continue the regular updating of the long-term goals established in D.04-09-060 Finding of Fact 28, NRDC recommended16 including an additional Finding of Fact that refers to updating the energy savings goals on a regular basis. The Commission adopted this recommendation.17 We find that NRDC contributed to this point.
3.2. Contributions to PRGs
NRDC was a member of both the statewide PRG and the individual IOUs' PRGs during the period of time from October 24, 2007, through July 23, 2008. NRDC asserts that it contributed to the process by reviewing the ongoing implementation of the utilities' portfolios as laid out by D.05-01-055 and D.05-09-043, and by actively participating in the development of criteria for the third-party programs and local government partnerships (LGP) as directed by D.07-10-032.
In particular, NRDC played a role in the continued observation of new solicitations and related activities for the 2006-2008 program cycle and the 2009-2011 solicitation process to ensure that public benefits funds were being used as effectively as possible.
For the 2009-2011 cycle, NRDC reviewed all four utilities' scoring and ranking of third-party proposals to ensure fairness and consistency, encouraged the utilities to better define "innovation," which was directed to be one of the purposes of third-party programs by D.05-01-055. NRDC states its role in the PRG third-party solicitation process as ensuring that the resulting third-party portion of the utility portfolio represented the most effective energy efficiency programs that would directly benefit consumers by saving them money on their utility bills, reducing global pollution, and advocating for a review to determine if utilities are able to provide a single statewide bid for appropriate third-party programs as directed by D.05-09-043.
NRDC also met with utilities and other PRG members to establish criteria for the LGP as directed by D.07-10-032. NRDC reviewed all aspects of the local government program development including the initial abstracts, program implementation plans, and ultimately the partnership programs as filed by the utilities on July 21, 2008. NRDC offered recommendations to ensure that the development of LGP programs were consistent with Commission direction as indicated throughout the strategic planning process, that the process was fair and transparent, and that the resulting partnerships would yield the most effective programs to saving consumers money on their energy bills and reduce global pollution.
NRDC also played a significant role in developing and writing the PRG Report on the 2009-2011 Energy Efficiency Applications that was ordered by D.07-10-032 and filed with the Commission on September 12, 2008, in the utilities 2009-2001 energy efficiency program plans A.08-07-021 et al. As NRDC and DRA were the two main contributors to the report, NRDC's role in this effort was substantial.
4 D.98-04-059, 79 CPUC2d 628 at 653.
5 Interim Opinion on Issues Relating to Future Savings Goals and Program Planning for 2009-2011 Energy Efficiency and Beyond.
6 See, NRDC's April 25, 2008 Comments on the energy efficiency savings goals.
7 NRDC's reply comments of May 5, 2008.
8 NRDC Comments of April 25, 2008, at 2.
9 See D.08-07-047, tables at 17.
10 D.08-07-047, at 25-26.
11 NRDC Comments of April 25, 2008, at 5-6.
12 D.08-07-047, at 26-27; NRDC's Comments of May 5, p. 1, June 11, 2008, at 3.
13 D.08-07-047, at 28.
14 NRDC's Comments of May 5, 2008, at 4.
15 D.08-07-047, at 34-35.
16 NRDC's Comments of July 21, 2008, at 10.
17 D.08-07-047, at 37.
