5. Substantial Contribution to Resolution of Issues

A party may make a substantial contribution to a decision in one of several ways.² It may offer a factual or legal contention upon which the Commission relied in making a decision,³ or it may advance a specific policy or procedural recommendation that the ALJ or Commission adopted.⁴ A substantial contribution includes evidence or argument that supports part of the decision

even if the Commission does not adopt a party's position in total.⁵

In D.02-01-031 the Commission dismissed Edison's application without prejudice after finding that "[c]ircumstances and assumptions underlying this application have changed since Edison filed it in January 2000," and that "[t]here is no need to proceed with this application at this time." (D.02-01-031, Findings of Fact, p. 4.) Earlier, in response to Edison's proposal that it withdraw the application or, in the alternative, that the application be dismissed without prejudice, TURN had recommended the latter of the two Edison-proposed alternatives. Thus, D.02-01-031 adopted TURN's procedural recommendation, and on this basis alone TURN contributed substantially to our decision to dismiss the application.

Notwithstanding this simple procedural contribution, TURN submits that we should also consider its request more broadly:

Where, as here, an intervenor eligible for compensation acted reasonably throughout its participation in a Commission proceeding, and the unusual outcome of that proceeding was determined by extenuating circumstances having nothing to do with the proceeding, the Commission should award the intervenor compensation for its reasonable advocate's fees, reasonable expert witness fees, and other reasonable cost of participation. (TURN Request, p. 4.)

D.02-01-031 does not discuss or resolve the substantive issues that TURN addressed in the proceeding. In fact, the decision was issued before any intervenor had an opportunity to address the substantive issues in this proceeding through testimony or briefs. It cannot be asserted that TURN's work on substantive issues substantially assisted the Commission in making its procedural decision. TURN appears to acknowledge this, but it goes on to note that the Commission has broad discretion under Section 1802(h) to determine whether an intervenor has substantially assisted the Commission in making its order or decision. TURN also points to the legislative intent, expressed in Section 1801.3(b), that the Commission should administer the intervenor compensation program so as to encourage the effective and efficient participation of all groups that have a stake in the public utility regulation process. TURN believes that the Commission should exercise this discretion and fulfill the legislative intent by finding that a substantial contribution has been made.

In lieu of the typical review, TURN suggests that we weigh several factors in considering whether a substantial contribution has been made:

· The circumstances that led to the proceeding's conclusion;

· The appropriateness of the intervenors' participation in the underlying proceeding;

· The reasonableness of the intervenor's participation in the underlying proceeding; and

· Where available, the intervenor's past record of demonstrating a substantial contribution to Commission decisions on similar subjects.

TURN's suggested review criteria have not been given a full airing, and we hesitate to adopt them as appropriate tests of substantial contribution in all proceedings before us. Nevertheless, we find it appropriate to apply them here. The circumstances that led to our dismissing Edison's application are largely associated with the California electricity crisis that began in 2000. Those circumstances could not have been foreseen or affected by TURN or any other party at the time that TURN commenced its participation in this proceeding. Until it was reasonably certain that processing of Edison's application would be discontinued, it was reasonable and appropriate for an intervenor such as TURN, having a long-established track record of effective participation in revenue allocation and rate design proceedings such as this, to commit resources and engage consultants to review the application, participate in the prehearing conference, conduct discovery, and begin preparation of testimony, all with a reasonable expectation that successful participation would eventually entitle it to receive an award of compensation.

Denying TURN any compensation in this proceeding simply because circumstances beyond its control led to dismissal of the application would be both unfair and inconsistent with the intent of the intervenor compensation statutes. Moreover, doing so could potentially discourage it from participating in future proceedings. We value the continued participation of intervenors like TURN as evidenced by our frequent decisions awarding it compensation for its assistance to our decisionmaking process. Finally, if we were to deny compensation here because there was no decision or order addressing the merits of TURN's substantive participation, we could create an inappropriate incentive for intervenors to argue for the continued processing of cases even where discontinuation of the proceeding is the better outcome.

The intervenor compensation program is not structured to provide an intervenor with full assurance of being reimbursed for its costs of participation. Each time an intervenor such as TURN decides to participate in a given proceeding, it assumes the risk that its costs of participation therein will not be fully reimbursed. That risk is a part of the intervenor compensation program and is appropriate to ensure that the intervenor's conduct is calculated to assist the Commission in carrying out its public duties. We see no reason to increase the intervenor's risk by denying any compensation in a proceeding that is prematurely terminated for reasons that are not reasonably foreseen and are beyond its control. Based on the fact that TURN's procedural recommendation to dismiss this application was adopted, and taking into account the circumstances that led to the dismissal, we find that TURN made a substantial contribution to the Commission's decision in this proceeding.