6. Comments on Draft Decision

Comments and reply comments on the draft decision were filed by TURN and SCE.

Findings of Fact

1. TURN has made a timely request for compensation for its contribution to D.01-01-018, D.01-03-029, D.01-03-081, D.01-03-082, D.01-04-005, and D.01-05-064 in this proceeding.

2. TURN has made a showing of significant financial hardship by reference to a previous determination.

3. TURN contributed substantially to D.01-01-018, D.01-03-029, D.01-03-081, D.01-03-082, D.01-04-005, and D.01-05-064.

4. TURN has requested hourly rates for attorneys, as modified above, and experts are no greater than the market rates for individuals with comparable training and experience.

5. The miscellaneous costs incurred by TURN are reasonable.

Conclusions of Law

1. TURN has fulfilled the requirements of Sections 1801-1812, which govern awards of intervenor compensation.

2. TURN should be awarded $573,335.70 for its substantial contribution to D.01-01-018, D.01-03-029, D.01-03-081, D.01-03-082, D.01-04-005, and D.01-05-064.

3. This order should be effective today so that TURN may be compensated without unnecessary delay.

ORDER

IT IS ORDERED that:

1. The Utility Reform Network (TURN) is awarded $573,335.70 in compensation for its substantial contribution to Decision (D.) 01-01-018, D.01-03-029, D.01-03-081, D.01-03-082, D.01-04-005, and D.01-05-064.

2. Pacific Gas and Electric Company (PG&E) and Southern California Edison Company (Edison) shall each pay TURN $286,667.85, within 30 days of the effective date of this order. PG&E and Edison shall also pay interest on the award at the rate earned on prime, three-month commercial paper, as reported in

Federal Reserve Statistical Release G.13, with interest, beginning July 16, 2001 and continuing until full payment is made.

This order is effective today.

Dated June 27, 2002, at San Francisco, California.

I will file a dissent.

/s/ HENRY M. DUQUE

Commissioner Henry M. Duque, dissenting:

I must respectfully dissent from the majority decision. There should be two straightforward questions answered in the majority decision. The first question is whether intervenor compensation may be awarded for participation in outside proceedings, such as the state or federal courts. I agree with the majority decision that the answer to the first question is "yes." The statute defines compensation to include the costs for "obtaining judicial review" of a Commission decision. As pointed out by TURN, judicial review must necessarily come from entity other than the Commission.

It is not so much a different answer to the second question but the failure to answer which I find troubling about the majority decision. A fair argument was made by TURN that it indirectly sought review of past Commission decisions and was therefore entitled to compensation. For reasons unknown, TURN's argument is not adopted in the majority decision

The majority decision instead employs a tortured and indefensible legal analysis to reach the desired outcome. The majority decision makes up a definition for the term "hearing" in the statute. "Hearing" is defined to include federal court hearings. This would appear reasonable except for the other statutory language requiring that we adopt an order or decision in the hearing for which compensation is sought. (Pub. Util. Code § 1803(a)) Obviously, the Commission does not adopt its orders or decisions in federal court lawsuits. Hearing in this statutory context can only mean hearings before the Commission. The majority decision goes on to rely on an entirely different attorney fee statute, a statute inapplicable to utility proceedings, to fashion new guidelines for awarding compensation.

Yet the Commission does not have authority to expand, beyond the limitations of Section 1801, et seq., the proceedings or participation for which intervenor compensation can be awarded. In Consumers Lobby Against Monopolies v. Public Utilities Com. (1979) 25 Cal.3d 891, the California Supreme Court held that "the commission lacked both equitable and regulatory power under the existing statutory scheme to award such fees in quasi-legislative proceedings. Any such authority, CLAM ruled, must come expressly from the Legislature. . .Section 701 implies no regulatory authority to award fees and participation costs. If any doubt remained on that score, the Legislature, by adopting explicit, limited fee rules for the period beginning January 1, 1985, has foreclosed the notion that an additional implied authority also exists." (Southern Cal. Gas Co. v. Public Utilities Com. (1985) 38 Cal.3d 64,66,68.)

Finally, the majority decision makes no mention of the following decisions denying compensation for federal court proceedings. Most recently, in D.99-04-052, the Commission denied a request for compensation for the failure to comply with the notice requirements of Section 1804(a). The Commission went on to address the compensation requested for a federal writ of review:

"The federal lawsuit did not directly challenge a decision in this proceeding. Accordingly, work on the lawsuit does not qualify for compensation, consistent with our policy expressed in Decision No. 98-12-048 and Decision No. 97-05-040." (D.99-04-052, mimeo, p. 4.)

"We will not compensate TURN for the preparation of FERC intervention, for that activity is not compensable under the statute. (See § 1802(f) and (h))" (D.98-10-030, mimeo, p. 23.)

The Commission repeated this policy in D.97-06-062. The Commission stated:

"[C]ustomer advocates cannot qualify, under existing California statutes (PU Code § 1801 et seq.), for intervenor compensation following their successful participation in federal proceedings even though their efforts may benefit California customers."

(D.97-06-062, mimeo, p. 2.)

And finally, in D.98-11-014, TURN even voluntarily omitted attorney hours and costs associated with its participation in federal court cases. TURN originally sought compensation for its contributions to the PG&E Gas Accord Settlement and for intervention in a federal lawsuit. In the federal lawsuit, PG&E challenged the Commission's authority to disallow recovery of purchase costs for natural gas. Parties objected to compensation for the federal proceedings for the reason that no contribution was made to a Commission decision. TURN later omitted the requested compensation because it claimed no contribution to a Commission decision for those hours. This resulted in an approximately $20,000 reduction to its intervenor compensation request. (D.98-11-014, mimeo, p. 11.)

I have not been cited any Commission decisions awarding compensation for participation in federal court proceedings. While we have awarded compensation for comments filed at the Commission which led to the Commission making its own FERC filings, that is clearly distinguishable. The compensated participation occurred in a Commission proceeding and not at the FERC. There is no dispute that the statute allows compensation for participation in Commission proceedings.

For all of these reasons, I must dissent from the majority decision.

/s/ HENRY M. DUQUE

Commissioner

June 27, 2002

San Francisco, California

Previous PageTop Of PageGo To First Page