2. Requirement for Awards of Compensation
The intervenor compensation program, which is set forth in Pub. Util. Code §§ 1801-1812,3 requires California jurisdictional utilities to pay the reasonable costs of an intervenor's participation if that party makes a substantial contribution to the Commission's proceedings. The statute provides that the utility may adjust its rates to collect the amount awarded from its ratepayers.
All of the following procedures and criteria must be satisfied for an intervenor to obtain a compensation award:
1. The intervenor must satisfy certain procedural requirements including the filing of a sufficient notice of intent (NOI) to claim compensation within 30 days of the PHC, pursuant to Rule 17.1 of the Commission's Rules of Practice and Procedure (Rules), or at another appropriate time that we specify. (§ 1804(a).)
2. The intervenor must be a customer or a participant representing consumers, customers, or subscribers of a utility subject to our jurisdiction. (§ 1802(b).)
3. The intervenor must file and serve a request for a compensation award within 60 days of our final order or decision in a hearing or proceeding. (§ 1804(c).)
4. The intervenor must demonstrate "significant financial hardship." (§§ 1802(g) and 1804(b)(1).)
5. The intervenor's presentation must have made a "substantial contribution" to the proceeding, through the adoption, in whole or in part, of the intervenor's contention or recommendations by a Commission order or decision or as otherwise found by the Commission. (§§ 1802(i) and 1803(a).)
6. The claimed fees and costs must be reasonable (§ 1801), necessary for and related to the substantial contribution (D.98-04-059), comparable to the market rates paid to others with comparable training and experience (§ 1806), and productive (D.98-04-059).
In the discussion below, the procedural issues in Items 1-4 above are combined and a separate discussion of Items 4-6 follows.
2.1. Preliminary Procedural Issues
Under § 1804(a)(1) and Rule 17.1(a)(1), a customer who intends to seek an award of intervenor compensation must file an NOI before certain dates. In a proceeding initiated by a petition for rulemaking, the intervenor must file its NOI between the date the petition was filed and 30 days after the time for filing responsive pleadings, e.g., protests, responses, answers, or comments. (Rule 17.1(a)(3).) This is a consolidated proceeding in which the rulemaking petition was filed July 10, 2008 and a pre-hearing conference was held for both the rulemaking and the application on July 18, 2008. Under Rule 17.1(a)(1) related to an application, the NOI could be filed up to 30 days after the pre-hearing conference, or August 17, 2008. Since this falls on a Sunday, NOIs would be timely through August 18, 2008. In the alternative, under Rule 17(a)(3) applicable to rulemaking, the NOI could be filed up to 30 days after the petition is filed, or August 9, 2008. Because the proceedings were consolidated, we refer to the later date of August 17, 2008 as the final date for a timely NOI to be filed.
Requests for Intervenor Compensation in this consolidated proceeding must be filed on or before November 18, 2008, within 60 days after the final decision issued September 19, 2008.
NRDC timely filed a NOI on August 15, 2008. It also meets the definition under § 1802(b)(C) of a Category 3 customer eligible to claim intervenor compensation as it is a formally organized group authorized pursuant to its bylaws to represent the interests of its members, more than 124,000 of whom are residential customers dispersed throughout California. The interest of NRDC's members is to preserve environmental quality while minimizing the societal costs of providing electric service through energy efficiency, renewable resources and other cost effective alternative energy resources as reflected in its Certificate of Incorporation. Furthermore, NRDC represents customers with a concern for the environment that distinguishes their interests from those represented by other consumer advocates that have intervened in this case.
NRDC meets the requirements of the financial hardship test in § 1802(g) because, as a Category 3 customer, it has shown the economic interest of individual NRDC members is small when compared to the costs of effective participation. For example, NRDC asserts an average residential member's annual electricity bill is likely to be less than one thousand dollars a year and savings achieved in this proceeding would be substantially less than this amount for an individual member. This sum is far exceeded by the $15,692.00 cost of participation claimed by NRDC in this case. NRDC timely filed its Request for Compensation (RFC) on November 18, 2008 and no party opposed the request.
CEC is a regional membership organization, based in Santa Barbara with over 2,000 members, representing solely the interests of residential and small commercial electricity and natural gas customers in the Central Coast region of California. It filed its NOI late on August 21, 2008 with the permission of ALJ Gamson. In the NOI, CEC asserted it is a "Category 1 customer" and incorrectly stated the Commission had supported this determination in several cited proceedings. However, this claim is in error. In R.03-10-003, I.05-09-005, R.06-04-009, and R.06-04-010, the Commission instead found CEC to be a Category 3 customer. (§ 1802(b)(C).) We agree with that characterization.
As for "significant financial hardship," CEC attempts to rely on a finding in D.08-06-018 (R.06-04-010) that it had shown "significant financial hardship" in order to establish a rebuttable presumption of eligibility pursuant to § 1804(b)(1) in this proceeding. This argument fails. Although the decision was issued within one year of the commencement of these proceedings, we note that the finding was based on June 28, 2006 ruling in that proceeding which itself was based on a March 2006 ruling in I.05-09-005, yet another proceeding, which also was based on a prior ruling to establish the presumption. This continuous bootstrapping of one showing many years ago is not what is contemplated by the rebuttable presumption provisions in § 1804(b)(1). Thus, we re-examine here the question of "significant financial hardship."
Similar to the analysis above for NRDC, we find that CEC meets the requirements of the financial hardship test in § 1802(g) because, as a Category 3 customer, the economic interest of individual CEC residential members is small when compared to the costs of effective participation. The savings achieved for its members in this proceeding would be substantially less than the $64,838.00 cost of participation claimed by CEC in this case. CEC timely filed its RFC on October 17, 2008 and no party opposed the request.
WEM timely filed its NOI on August 18, 2008 in which it claimed it would take "an active role in this proceeding," had already attended the PHC and filed Comments on July 31, 2008, would file additional Comments, and that it would claim about 60 hours of time for Barbara George at her 2008 rate of $175 per hour for a total of $10,500. (WEM RFC at 3.) WEM also said it might need to hire an expert and might incur additional costs depending on the future course of the proceeding. (WEM RFC at 3.) WEM meets the definition under § 1802(b) of a Category 3 customer eligible to claim intervenor compensation as it is a formally organized group authorized by its bylaws to represent the interests of consumers in administrative and judicial proceedings concerning public utilities matters. In its NOI, WEM claimed it would be one of a very few parties representing the interests of residential and small commercial customers (particularly women and low-income customers), which it contends comprise the vast majority of utility customers, and the interests of customers located in the territories of "Community Choice Aggregators" in California.
WEM satisfies the criteria for a finding of "significant financial hardship" pursuant to § 1802(g), through a rebuttable presumption of eligibility, pursuant to § 1804(b)(1), because the assigned ALJ found WEM satisfied this condition in A.07-02-032 (D.08-01-017) within one year of the commencement of this proceeding.4 WEM timely filed its Request for Compensation on October 20, 2008. On November 19, 2008, SCE filed a Response to WEM's request disputing that WEM made a substantial contribution to the proceeding. This matter will be discussed below.
Greenlining timely filed its NOI on August 14, 2008. It also meets the definition under § 1802(b) of a Category 3 customer eligible to claim intervenor compensation as it is a formally organized group authorized by its bylaws to represent, among others, low-income communities and residential ratepayers before regulatory agencies and courts. The interests that Greenlining represents, specifically low-income, minority and limited-English speaking communities, have often been underrepresented in Commission proceedings.
Greenlining meets the requirements of the financial hardship test in § 1802(g) because, as a Category 3 customer, the economic interest of individual members is small when compared to the costs of effective participation. Furthermore, it is entitled to a presumption based on a finding in another proceeding within one year of the commencement of this proceeding.5 Greenlining timely filed its request for Compensation on November 18, 2008 and no party opposed the request.
3 All subsequent statutory references are to the Public Utilities Code unless otherwise indicated.
4 D.08-01-017 was issued January 11, 2008.
5 Ruling on Notices of Intent to Claim Compensation issued September 8, 2008 in A.08-03-015.
