II. DISCUSSION

Before discussing the various allegations asserted by WEM and RESCUE we note that we have previously, in this proceeding, advised both parties of the requirements of Public Utilities Code section 1732 and Commission Rules of Practice and Procedure rule 86.1, which require applicants for rehearing to set forth their allegations of error with specificity.⁸ (D.04-01-032.) Section 1732 provides:

The application for a rehearing shall set forth specifically the ground or grounds on which the applicant considers the decision or order to be unlawful. No corporation or person shall in any court urge or rely on any ground not so set forth in the application.

Rule 86.1 provides:

Applications for rehearing shall set forth specifically the grounds on which applicant considers the order or decision of the Commission to be unlawful or erroneous. Applicants are cautioned that vague assertions as to the record or the law, without citation, may be accorded little attention. The purpose of an application for rehearing is to alert the Commission to an error, so that error may be corrected expeditiously by the Commission. (Emphasis added.)

The applications for rehearing of D.03-12-060 presented by WEM and RESCUE are filled with vague assertions without citation to the record or law. In many instances neither party actually asserts error. In D.04-01-032 we specifically advised WEM "... to carefully review the laws and rules concerning applications for rehearing and henceforth to abide by them." (D.04-01-032 at 13; see also, D.03-06-077.) Further failure of WEM to comply with relevant laws, rules and procedure may be viewed by us in the future as a refusal by WEM to abide by its obligation to treat the Commission respectfully and comply with relevant laws, rules and Commission directives. ⁹

A. WEM

1. D.03-12-030 did not illegally exclude Community Choice Aggregators from participating in the 2004-2005 solicitation.

WEM alleges that Community Choice Aggregators (CCAs) were illegally excluded from participating in the solicitation to administer in the 2004-2005 funding cycle. (WEM application for rehearing at 2.) It further argues that D.03-12-060 "illegally compounds earlier unlawful decision numbers 03-07-034 and 03-08-067...." (Id., at 3.) WEM's application for rehearing fails to provide sufficient detail with respect to these accusations. Essentially, WEM complains that by D.03-07-034, CCAs are treated as other non-public utility EE program applicants. It appears that WEM is attempting to attack D.03-07-034 and D.03-08-067 by its application for rehearing of D.03-12-060. This attack is untimely. (§ 1731, rule 85.)¹⁰ Further, WEM did file applications for rehearing of both decisions. WEM's application for rehearing of D.03-07-034 was denied by D.04-01-032. WEM applied for rehearing of D.03-08-067 in an untimely manner. However, we accepted that application as a petition for modification, which we addressed in D.04-02-059. (D.04-02-059 at 11, fn 6.)

In D.03-08-067 we clarified that CCAs can apply for PGC funds in the same manner as any other party and would not be granted preferences. (D.03-08-067 at 15.) WEM has not established that D.03-12-060 errs in allocating funds pursuant to our stated policy. This issue is without merit.

In addition, WEM claims to "know of CCAs that wanted to apply but could not...." WEM fails to provide any evidence in support of this allegation. Further, no CCAs have applied for rehearing of D.03-12-060, nor written in support of WEM's application. WEM is an intervenor in this proceeding. It has provided no information about its entitlement to assert the positions, rights or other interests of CCAs or other parties to this proceeding and its status as an intervenor does not in an of itself accords it any such rights. ¹¹ WEM has not established that the Commission acted unlawfully, and as noted, it cannot use this application in an untimely attempt to attack earlier decisions. (§ 1731, rule 85.)

2. The Commission has the discretionary authority to determine the allocation of PGC funding.

WEM contends that by D.03-08-067 the Commission indicated its intention to limit funding for non-public utility EE programs to 20% or less of the total PGC funding available, and that this action is illegal. In D.03-08-067 we stated:

... TURN, SESCO, Local Power and WEM object to the limiting of non-utility funding in any way, based in part on the fact that such limitations would conflict with AB 117.... In essence, these parties propose that the Commission should allow any party to apply for all of the PGC funds the utilities collect pursuant to Pub. Util. Code § 381. [¶] We cannot agree with this reading of AB 117.... There is nothing in this section that would eliminate or in any way limit the Commission's authority to determine the allocation of PGC funding, just as AB 117 does not preclude action by this Commission to establish a separate nongovernmental entity to administer EE funding. Nor does anything in this section require that non-utility entities be permitted to apply for the total amount of PGC energy efficiency funds without limitation. (D.03-08-067 at 12.)

WEM has not established that our analysis of AB 117 errs. As discussed above, it is too late for WEM to challenge D.03-08-067. (§ 1731, rule 85.) Further, the allocation of portions of the PGC funds among the public utilities and non-public utility parties has been an on-going Commission policy. By D.01-11-066, the Commission:

... set aside $100 million of the Public Goods Charge (PGC) gas and electric funds available in 2002 and 2003 for non-utility programs. This constitutes approximately 20% of the overall 2002 budget for energy efficiency programs, and approximately 65% of the funding for local programs. In addition, third parties (but not utilities) may apply for a second year of funding - during PY 2003 - for programs they wish to run until December 31, 2003. (D.01-11-066 at 66.)

WEM has not established that the Commission's policy is prohibited by AB 117 or otherwise unlawful or that D.03-12-060 otherwise errs on this issue.

WEM further argues that D.03-12-060 encourages preferential treatment for utility programs and partnerships between utilities and other entities. WEM argues that: "all EE funds from the Public Goods Charge should have been available for any party to apply for ...." This is the same argument it already presented to us in comments prior to the issuance of D.03-08-067 and in its application for rehearing of D.03-07-034.¹² We addressed WEM's application for rehearing of D.03-08-067¹³ in D.04-02-059.¹⁴ With respect to the current allegation, aside from asserting that AB 117 should not be interpreted as the Commission has interpreted it, WEM has not established any evidence supporting its contention. The issue is without merit.

3. There is no evidence supporting WEM's allegation that the staff failed to follow the adopted criteria in choosing EE proposals.

WEM asserts that the staff failed to award funds according to the adopted criteria and requests "an investigation of who directed the staff to take actions to award funds to some applicants who did not meet minimum criteria and deny awards to others...." (WEM application for rehearing at 5.)¹⁵ The allegation is unfounded.

In D.01-11-066 we adopted criteria for evaluation and selection of EE proposals. (D.01-11-066 at 5-7; see also, D.02-05-046 at 13-15.) We assigned numerical scores to each of seven initial criteria. At that time we announced:

The goals and objectives of the Commission's energy efficiency programs are listed below, in order of importance. The Commission will select a portfolio of programs consistent with these policy goals and objectives, while ensuring that the portfolio is cost-effective, provides comprehensive market coverage, and falls within specified budget parameters. The Commission will develop this portfolio for PY 2002 by a combination of utility and non-utility programs to be selected according to the process described in this decision. When evaluating program proposals for 2002 and future years, the Commission will determine how well each utility and non-utility program proposal meets these goals and objectives. In doing so, the Commission will use the point values listed beside each objective to rank each proposal. The point values next to each objective represent the maximum possible score for each objective. A perfect score would be 100 points. (D.01-11-066 at 4.)

By D.03-08-067 we "redefine[d] the process for awarding funding to various types of entities to implement 2004-05 EE programs funded by the "Public Goods Charge" on customer[s'] bills." (D.03-08-067 at 7.) D.03-08-067 established primary and secondary criteria and allocated points to both criteria. (D.03-08-067 at 24-26.) By D.03-08-067 we instructed our staff to evaluate statewide and local EE proposals pursuant to that decision's directives and to provide a recommended portfolio design for our ultimate approval. (Id., at 25-26.)

WEM contests the selection method actually employed by the staff, and challenges its lawfulness. By D.04-02-059 we stated that D.03-12-060 may have inadvertently caused some confusion regarding the scoring/evaluation process actually employed and we clarified the process actually used. (D.04-02-059 at 6-10.) As we stated in D.04-02-059, in Conclusion of Law No. 10:

D.03-08-067 did not establish numerical scores as a minimum threshold for approval or denial of program proposals. D.03-08-067 employed a two-phased evaluation process that applies numerical scoring in the primary phase, which varies in each funding cycle based upon the number of applicants and the amount of funding available, and a certain level of discretion in the second phase to ensure the Commission's directives are met to achieve a balanced portfolio of energy efficiency programs. (D.04-02-059 at 17.)

The overall evaluation method employed by D.03-12-060 was quite similar to that employed in D.02-05-046 and D.01-11-066. (Although D.03-12-060 awarded PGC funding to non-public utility entities' local and statewide EE proposals, whereas both D.02-05-046 and D.01-11-066 awarded PGC funding to non-public utility local EE programs only.) WEM has not shown that D.03-12-060 is unlawful on this point, or that an investigation is warranted. The issue is without merit.

4. WEM Has Not Demonstrated That The Scoring Process Was Erroneous.

WEM argues that we failed to make the scoring process fully transparent; however, it does not actually allege error. WEM complains that EE proposal applicants received a "form letter with their overall scores rather than scores on individual criteria, making it impossible to determine what the Commission saw as a problem with their proposals, and therefore impossible to correct." (WEM application for rehearing at 6.) WEM fails to state whether it received any such letter and whether it has been harmed by such. WEM references text from a motion filed by SESCO on January 14, 2004 demanding, among other things, release of scores, but provides no other information concerning that motion, including whether WEM supports SESCO's motion and if so, why. (Id.)¹⁶ Thus, it is unknown whether WEM is raising a policy issue or whether it is alleging D.03-12-060 errs on this point. WEM's argument is so vague and unspecific that it is not at all clear that WEM is alleging error. WEM has not demonstrated error.

5. WEM's request for the imposition of a "remedy" if the circumstances change is without merit.

WEM claims that at the time D.03-12-060¹⁷ issued¹⁸ its application for rehearing of D.03-07-034 was pending and thus, if the Commission adopted its arguments, or a court did at a later date, "Community Choice cities should still have an opportunity to apply for funds and administer a program in the 2004-2005 cycle." (WEM application for rehearing at 6.) The Commission issued D.04-01-032, the decision denying WEM's application for rehearing of D.03-07-034, on January 8, 2004. WEM filed its application for rehearing of D.03-12-060 on January 20, 2004--twelve days after the Commission denied its application for rehearing of D.03-07-034. WEM knew, or should have known at the time it filed its application for rehearing of D.03-12-060, that its application for rehearing of D.03-07-034 was denied and to that extent, its argument is disingenuous. In any event, its request is not an allegation of error (§ 1732; rule 86.1) and aside from WEM's assertion that it is a proposed remedy, is another instance of WEM raising a policy issue. Further, as discussed herein, by D.03-08-067 we stated that CCAs would not be treated differently in this cycle. (D.03-08-067 at 15.) WEM has not established error and its argument is without merit.

6. WEM's renewal of its December 2002 motion and its underlying argument are without merit.

⁹ Rule 1 provides: "Any person who signs a pleading or brief, enters an appearance at a hearing, or transacts business with the Commission, by such act represents that he or she is authorized to do so and agrees to comply with the laws of this State; to maintain the respect due to the Commission, members of the Commission and its Administrative Law Judges; and never to mislead the Commission or its staff by an artifice or false statement of fact or law."

¹⁰ Section 1731(b) provides in pertinent part: "...No cause of action arising out of any order or decision of the commission shall accrue in any court to any corporation or person unless the corporation or person has filed an application to the commission for a rehearing within 30 days after the date of issuance ...."

Rule 85 provides: "Application for rehearing of a Commission order or decision shall be served on all parties and accompanied by a certificate of service. The application shall be filed within 30 days after the date of issuance, or within 10 days of issuance in the case of an order relating to security transactions and the transfer or encumbrance of utility property. For purposes of this rule, `date of issuance' means the date when the Commission mails the order or decision to the parties to the action or proceeding."

¹⁷ Although WEM actually references D.03-13-060 in its application, we treat the reference as a typographical error.

¹⁸ We approved D.03-12-060 at our meeting of December 18, 2003 and mailed it on December 22, 2003.