5. Reasonableness of Requested Compensation

NRDC requests $15,692.50 for its participation in this proceeding, as follows:

Work on Proceeding

Attorney/Staff

Year

Hours

Hourly Rate

Total

Audrey Chang

2007

6.5

$150.00

$ 975.00

Audrey Chang

2008

6.5

$155.00

$ 1,007.50

Lara Ettenson

2007

20.5

$120.00

$ 2,460.00

Lara Ettenson

2008

87

$125.00

$10,875.00

Subtotal:

    

$15,317.50

Preparation of NOI and Compensation Request

Attorney/Staff

Year

Hours

Hourly Rate

Total

Lara Ettenson

2008

6

$62.50 (½ rate)

$ 375.00

Subtotal Hourly Compensation:

  

$15,692.50

Expenses

      

$ 0.00

Total Requested Compensation

$15,692.50

CEC requests $64,838.00 for its participation in this proceeding, as follows:

Work on D.08-07-047

Attorney/Staff

Year

Hours

Hourly Rate

Total12

Tam Hunt

2007

18.5

$270.00

$ 4,995.00

Tam Hunt

2008

29.7513

$300.00

$ 8,925.00

         
         
         

Tam Hunt-travel

2007

5.75

$135.00 (½ rate)

$ 776.25

Tam Hunt-travel

2008

6.25

$150.00 (½ rate)

$ 937.50

Total Requested Compensation

$15,634.0014

Work on D.08-09-040

Attorney/Staff

Year

Hours

Hourly Rate

Total15

Tam Hunt

2007

49.5

$270.00

$13,365.00

Tam Hunt

2008

84.5

$300.00

$25,350.00

Tam Hunt -travel

2008

6.0

$150.00 (½ rate)

$ 900.00

Tam Hunt -travel

2007

21.25

$135.00 (½ rate)

$ 2,868.75

Subtotal:

    

$42,483.75

Preparation of NOI and Compensation Request

Attorney/Staff

Year

Hours

Hourly Rate

Total

Tam Hunt

2008

9.5

$150.00 (½ rate)

$ 1,425.00

Subtotal Hourly Compensation:

  

$43,909.0016

Expenses

     

$7,920.10

Total Requested Compensation

      

$51,828.85

Total Requested Compensation both decisions

$64,838.0017

WEM requests $26,392.50 for its participation in this proceeding, as follows:

Work on Proceeding

Attorney/Staff

Year

Hours

Hourly Rate

Total

Barbara George

2007

68.7518

$170

$12,197.50

Barbara George

2008

71.75

$170

$12.197.50

Subtotal:

    

$24,395.00

Preparation of NOI and Compensation Request

Attorney/Staff

Year

Hours

Hourly Rate

Total

Barbara George

2008

23.5

$ 85.00

$ 1,997.50

Subtotal Hourly Compensation:

  

$ 1,997.50

Expenses

      

$ 0.00

Total Requested Compensation

$26,392.50

Greenlining requests $11,352.82 for its participation in this proceeding, as follows:

Work on Proceeding

Attorney/Staff

Year

Hours

Hourly Rate

Total

Robert Gnaizda

2008

1.5

$540.00

$ 810.00

Samuel Kang

2008

44.65

$235.00

$10,492.75

Subtotal:

    

$11,302.7519

Expenses

      

$ 50.07

Total Requested Compensation

$11,352.82

In general, the components of this request must constitute reasonable fees and costs of the customer's preparation for and participation in a proceeding that resulted in a substantial contribution. The issues we consider to determine reasonableness are discussed below.

We first assess whether the hours claimed for the customer's efforts that resulted in substantial contributions to Commission decisions are reasonable by determining to what degree the hours and costs are related to the work performed and necessary for the substantial contribution.

NRDC documented its claimed hours by presenting a daily breakdown of the hours of its attorneys, accompanied by a brief description of each activity. However, some hours included at full rate should have been claimed at half rate because they relate to travel and seeking intervenor compensation. The hourly breakdown reasonably supports the claim for total hours.

CEC documented its claimed hours by presenting a daily breakdown of the hours of its attorney segregated by decision, accompanied by a brief description of each activity. The travel time awarded at half rate is appropriate because CEC is based in Santa Barbara and represents residential and small commercial customers in that area. Thus, travel to San Francisco is not "routine" travel. Hunt attended some meetings and workshops by telephone conference, apparently limiting his travel to San Francisco and Sacramento for the times he had a presentation or it was otherwise significant for him to attend.

With its Comments on the Proposed Decision, CEC provided documentation for $3,605.10 in travel expenses. However, there are errors and omissions in the presentation of the claim as follows:

· The itemized 2008 full-rate hours for D.08-07-047 total 21 not 29.75 as claimed in the compensation section;

· The total amounts claimed per decision do not match the hours and rates identified for both decisions;

· 27 hours related to drafting, discussing, editing, and reviewing Comments on "EE goals" and drafting and finalizing Reply Comments, and reviewing other's reply Comments from April 16 to May 5, 2008 are incorrectly identified as related to D.08-09-040 when they are related to D.08-07-047;

· No supporting documentation or verification for $4,315.00 claimed for Westlaw research, its relationship to a particular issue in a particular decision. In Comments on the Proposed Decision, CEC states the claim is for 14 months of its flat rate fee to access Westlaw between November 2007 and December 2008.

We have reviewed the record and make the following changes to CEC's claim:

· For D.08-07-047 we correct the total 2008 full-rate hours to 21;

· Move 27 hours related to Comments and Reply Comments on energy efficiency long term goals from D.08-09-040 to D.08-07-047 where the comments were filed;

· Deny $4,315.00 in Westlaw research expenses because they are ordinary overhead expense.

Otherwise, the hourly breakdown reasonably supports the claim for total hours.

WEM documented its claimed hours by presenting a daily breakdown of the hours of its expert, accompanied by a brief description of each activity. The claim has a calculation error and is excessive. The calculation error is the erroneous total of 68.75 hours for 2007, when the actual total is 71.75. The total amount claimed at full rate for 2008 is 71.75 hours. WEM claims a total of 143.5 hours at full rate and 23.5 hours at half rate.

The claim is excessive in two ways. First, as discussed above, WEM may only seek compensation in this proceeding for activities related to long-term strategic planning that occurred after October 18, 2007, the date D.07-10-032 was issued. Therefore, we deny compensation for 65.25 hours claimed prior to that date and note that some of the identified activities during that period related to issues considered under the broad scope and multiple phases of R.06-04-010, and beyond the scope of D.08-09-040 (e.g., reporting and review requirements for existing IOU energy efficiency programs.)

For strategic planning activities from November 5, 2007 through September 4, 2008, WEM claim 6 hours in 2007 related to the ME&O workshop and the balance in 2008. Before the IOUs applied for approval of the CEESP on June 2, 2008, George's timesheets identify:

· 13.75 hours related to ME&O;

· 21.25 hours attending a strategic plan workshop, and reviewing and discussing the IOU draft; and

· 17.25 hours drafting WEM's March 25, 2008 Comments and getting them filed.

The March 25, 2008 Comments, filed in R.06-04-010, are slim. Despite 35 hours of background work and 17.75 hours to draft and file them (along with short motions to allow their filing), the Comments contained only about two pages of issue discussion primarily focused on process rather than the particulars of the IOU draft. On the other hand, the IOU draft acknowledged WEM input on several points, some of which were incorporated into the CEESP, and others that were not. Even so, the time claimed prior to filing of the CEESP is excessive given the few identified points of substantial contribution. We reduce the 35 hours of background time by 10% to 31.5 hours to account for activities that did not substantially contribute to the IOU draft and CEESP (e.g., attacks on planning process, opinion, undisputed facts, etc.). We also reduce the 14.75 hours claimed to draft the comments and motions by 1.5 hours, about 10%, to 13.25 hours because the comments were short, often general, and not directed at the particulars of the IOU draft. Furthermore, we disallow three hours claimed to straighten out filing problems with the Docket Office. Thus, after a reduction of eight hours, we allow 44.25 hours related to strategic planning after D.07-10-032 and before commencement of this proceeding.

After this proceeding opened on June 2, 2008, WEM claimed work that substantially contributed to D.08-09-040 and 23.5 hours related to seeking intervenor compensation. WEM claims to have spent 13 hours drafting Comments filed on July 31, 2008 regarding the Commission draft, yet according to the Commission Docket Office, WEM did not file any comments, briefs or motions in this proceeding, only the NOI and Request for Compensation.20 Therefore, we deny compensation for 13 hours between July 29 and July 31 related to drafting comments that were not filed and one additional hour claimed on September 2, 2008 for "review Docket rejection of 7/31 filing; refile" because it is a party's responsibility to make correct filings, there is no evidence the comments were filed, and the claimed activity did not make a substantial contribution to D.08-09-040. To summarize, the 143.5 hours claimed by WEM at full rate are reduced 65.25 hours for activity in R.06-04-010 prior to D.07-10-032, by eight hours for pre A.08-06-004 activity that did not make a substantial contribution, and by 14 hours related to unfiled comments resulting in 56.25 hours which are approved at full rate.

We also examine the claim of 4.5 hours to prepare the NOI which is excessive given that less than two pages contained useful information about WEM's anticipated participation and it failed to notify the assigned Commissioner that WEM would try to seek compensation in this proceeding for work done on a variety of issues in R.06-04-010, prior to issuance of D.07-10-032. The 4.5 hours claimed are reduced by one-third to 3.0 hours resulting in 22 hours for compensation related matters.

Finally, regarding SCE's objections, we previously discussed that some of the comments made by WEM were outside the scope of the Commission's long-term strategic plan and some comments were rhetorical and not useful to the Commission in drafting its decision. The preceding reductions account for that portion of WEM's participation which did not make a substantial contribution to D.08-09-040.

Greenlining documented its claimed hours by presenting a daily breakdown of the hours of its attorneys, accompanied by a brief description of each activity. However, the claim erroneously requests full rate compensation for Kang's strategic planning activities "including travel time" in 2008, as follows: 2.7 hours on July 18; 1.3 hours on July 22; and 3.7 hours on August for a total of 7.7 hours. Routine commuting to participate in Commission proceedings is generally not compensated because "[a]n intervenor's fees are assumed to cover such overhead costs [routine commuting], just as they cover administrative costs." (D.07-04-010 at 12.) It is the burden of the intervenor, as the requesting party and the party with access to the relevant information, to demonstrate the reasonableness of its travel expenses, and whether these costs go beyond those compensated in hourly rates. (Decision 07-10-014 at 5.) Greenlining has presented no such evidence to justify compensation for what otherwise appears to be routine travel in the Bay Area from its Berkeley office to San Francisco. Absent an actual breakdown of the travel time we find it reasonable to evenly split the time and allow 3.85 hours at full rate and disallow 3.85 hours attributable to routine travel.

In addition, time claimed by an attorney for time related to preparation of documents seeking compensation is also compensated at half rate. Greenlining requested full rate compensation for Kang's time preparing the NOI and request, as follow: 1.5 hours on August 14; 3.7 hours on November 1; and 1.2 hours on November 14 for a total of 4.9 hours and .25 of Gnaizda's time on August 14 which should only be compensated at half their hourly rates.

Therefore, Greenlining's claim of 44.65 hours at Kang's full hourly rate is reduced by 3.85 hours disallowed for routine travel, and 4.9 hours related to the compensation claim which will be allowed at half Kang's rate. Gnaizda's full rate claim of 1.5 hours is reduced by 0.25 hours to 1.25 hours. The deduction is compensable at half Gnaizda's approved hourly rates. Greenlining's claim for $50.07 in postage costs is reasonable.

We next take into consideration whether the claimed fees and costs are comparable to the market rates paid to experts and advocates having comparable training and experience and offering similar services.

NRDC has extensive experience participating in Commission proceedings for over 25 years, particularly promoting cost-effective energy efficiency, resource diversity, and other measures to increase the sustainability and mitigate environmental and economic impacts of electricity production and use. It contends the rates requested are purposely conservative, and not only reflect rates far below market for expertise at similar levels, but also far below other requests received by the Commission.

Audrey Chang is an energy expert with over seven years of experience. NRDC seeks an hourly rate of $150 for Chang's work performed in 2007. The Commission previously awarded Chang a 2007 hourly rate of $150 in D.08-10-011 in R.06-02-013. NRDC requests a 2008 hourly rate for Chang of $155.00, which reflects a 3% cost of living adjustment to her previously awarded rate for 2007, rounded to the nearest $5 as directed by D.08-04-010. These requested rates are at the low end of the 2007 and 2008 rates adopted by D.08-04-010 for experts with 7-12 years of experience. There is adequate basis to support the 2007 hourly rate of $150 for Chang's work in 2007 and an hourly rate of $155 for her work in 2008 and they are approved.

Lara Ettenson is an energy expert with over three years of experience. NRDC seeks an hourly rate of $120.00 for Ettenson work performed in 2007 and an hourly rate of $125.00 for work performed in 2008. These rates are at the lowest end of the 2007 and 2008 ranges adopted by D.08-04-010 for experts with 0-6 years of experience. There is adequate basis to support the 2007 hourly rate of $120.00 for Ettenson's work in 2007 and an hourly rate of $125.00 for her work in 2008 and they are approved.

CEC is a non-profit environmental group with a long history in environmental issues, and a recent shift in focus to renewable energy and energy efficiency policy. Tam Hunt is an attorney who, as of 2007, had five years experience working in the areas of energy efficiency, long-term procurement, Community Choice Aggregation, climate change and in renewable energy. CEC seeks for Tam an hourly rate of $270 for 2007 and an hourly rate of $300 for 2008. The Commission previously approved an hourly rate of $270 for work performed by Hunt in 2007 in D.08-06-018.

As of 2008, Hunt is an attorney with six years' experience, much of it working with the Commission on various issues and proceedings. D.08-04-010 provides that lawyers with five to seven years' experience should be compensated between $280 and $300 per hour for work performed in 2008. Although CEC argues Hunt is entitled to the top end of compensation for a five to seven-year attorney, Hunt's practice with the Commission is more limited, and $300 represents an 11% increase over 2007. We find that if the 3% COLA and 5% "step increase were applied to the 2007 rate, it would result in a 2008 rate of $290. There is adequate basis to support the 2007 hourly rate of $270.00 for Hunt's work in 2007 and an hourly rate of $290.00 for his work in 2008 and they are approved.

WEM was actively involved in the process and substance of strategic planning process, regardless of its procedural problems in properly claiming compensation. Barbara George is an expert with eight years experience in Commission proceedings, particularly working on energy efficiency and electricity system design. WEM seek an hourly rate of $170 for both 2007 and 2008. There is adequate basis to support that rate for both years claimed.

Greenlining has a long history working with the Commission on behalf of underserved communities. Robert Gnaizda is an attorney with over 20 years' experience before the Commission and Greenlining states the Commission has previously awarded him an hourly rate of $540, but offered no supporting citation for such an award. We find the requested hourly rate for 2008 to be excessive. The Commission previously awarded Gnaizda an hourly rate of $505.00 for work performed in 2006. (D.07-11-009.) D.08-04-010 sets forth ranges of hourly rates and establishes the maximum attorney rate for 2008 is $535 which we award to Gnaizda for work in 2008.

Greenlining seeks an hourly rate of $235 for Kang, the top of the range for an attorney with three years' experience, which we find excessive. We note that Kang has previously been awarded intervenor compensation as a paralegal at a rate of $110.00 in 200521 and $115.00 in 2006,22 thus, confirming his past experience working on Commission matters. Kang was admitted to the bar in December 2007 and thus became eligible for compensation at attorney rates.

We acknowledge that Kang has three years of experience with Commission proceedings based his internship at the Commission and our own records of intervenor compensation awards. Further, his pre-attorney experience can be taken into account when determining a reasonable compensation rate for a new attorney.23 However, we find that $180 per hour is a more reasonable rate than that claimed as it represents the middle of the range for attorneys with 0-2 years of experience. (D.08-04-010 at 5.)

12 CEC failed to include a breakdown of Total hourly rate calculations by decision in its request and the combined Sub-Total matches neither the actual nor the erroneous hours claimed. (See FN12.) We have supplied the calculations for the benefit of the reader.

13 CEC's total is incorrect. The actual number of itemized hours claimed is 21.

14 This subtotal is wrong. If the total hours were corrected the total would be $15,633.75 but the total hours are incorrect. (See fn. 12.)

15 CEC failed to include Total hourly rate calculations by decision in its request and we have supplied them for the benefit of the reader.

16 The correct subtotal is $43,908.75.

17 CEC's Total is incorrect. Using CEC's hours and rates claimed, the actual claim would be $67,462.85, the total of $15,634.00 + $51,828.85.

18 WEM's total hours are wrong. The actual number of 2007 hours claimed by WEM is 71.75 and the Total of $12,197.50 is correct.

19 This Subtotal is in error because it includes unsegregated time spent on travel and preparation of this Request for Compensation.

20 WEM also did not file any Comments on July 31, 2008 in R.06-04-010.

21 D.06-10-013.

22 D.07-07-017.

23 D.04-05-048 at 18.

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