D. Substantial Contribution

In evaluating whether a customer made a substantial contribution, we look at several things. First, did the ALJ or Commission adopt one or more of the factual or legal contentions, or specific policy or procedural recommendations put forward by the customer? (See § 1802(i).) Second, if the customer's contentions or recommendations paralleled those of another party, did the customer's participation materially supplement, complement, or contribute to the presentation of the other party or to the development of a fuller record that assisted the Commission in making its decision? (See §§ 1802(i) and 1802.5.) As described in § 1802(h), the assessment of whether the customer made a substantial contribution requires the exercise of judgment.

In assessing whether the customer meets this standard, the Commission typically reviews the record, composed in part of pleadings of the customer and, in litigated matters, the hearing transcripts, and compares it to the findings, conclusions, and orders in the decision to which the customer asserts it contributed. It is then a matter of judgment as to whether the customer's presentation substantially assisted the Commission.⁷

Even where the Commission does not adopt any of the customer's recommendations, compensation may be awarded if, in the judgment of the Commission, the customer's participation substantially contributed to the decision or order. For example, if a customer provided a unique perspective that enriched the Commission's deliberations and the record, the Commission could find that the customer made a substantial contribution.⁸ With this guidance in mind, we turn to the claimed contributions TURN made to the proceeding.

1. Contribution to the Settlement with Edison

We previously found that TURN had substantially contributed to D.99-10-057 and D.00-03-058, our decisions in the Post-Transition Ratemaking proceedings in which we determined that PG&E and Edison could not recover post-rate freeze costs incurred during the rate freeze. (D.00-11-002.) We also found that TURN had substantially contributed to D.01-03-082, our decision in the Rate Stabilization Plan proceedings in which we partially granted PG&E's and Edison's requests for rate increases. (D.02-06-070.) We also determined that TURN's work in the federal lawsuits substantially contributed to its ability to make its substantial contribution to "the eventual decision in this matter." (D.03-04-034, Ordering Paragraph 1.d, specifically referring to D.01-03-082.) However, our earlier findings of substantial contribution do not dictate the disposition of TURN's further requests for compensation for its challenge of the settlement entered into by the Commission and Edison, and for its subsequent appeal of the federal district court judgment affirming the settlement.

Today's decision is the third in a line of recent compensation decisions in which the Commission has had to interpret the circumstances under which intervenor's fees and costs in a judicial forum may be awarded by the Commission pursuant to the "obtaining judicial review" provision of § 1802(a).⁹ In the first decision, we found the circumstances justified an award under the statute. (See D.02-06-070, modified and rehearing denied as modified in D.03-03-034.) In the second decision (D.05-01-029) and again today, we have found the circumstances do not justify an award under the statute. To explain these different outcomes, we begin by discussing how "substantial contribution" under the statute may (or may not) be linked to "obtaining judicial review."

Litigation in a judicial forum may take the form of an appeal of a Commission decision. The link here is clear. An intervenor may participate as appellant if it hopes ultimately to compel the Commission to accept positions or recommendations of the intervenor that the challenged decision had rejected. Alternatively, the intervenor may join the Commission in opposing the appeal of another party that threatens to overturn the decision regarding positions or recommendations of the intervenor that the decision had adopted. We have held that "an intervenor can obtain judicial review not just by succeeding when it initiates judicial review to challenge a Commission decision, but also when the intervenor successfully defends a Commission decision against a challenge." (D.03-04-034, mimeo., p.6.)

A closely related issue in D.03-04-034 arose because the utilities filed their federal court challenges while both the Post-Transition Ratemaking and Rate Stabilization Plan proceedings were on-going. TURN's substantial contributions come in various decisions, some before and some after the federal filings. In finding TURN's federal court work compensable, we rejected the utilities' contention that judicial review activities are only compensable if the Commission adopts in a subsequent decision the intervenor's arguments made during judicial review. We said:

If an intervenor successfully defends a... decision against judicial review, it is unreasonable to expect the Commission to issue another...noting that its previous decision was upheld and crediting the intervenor arguments before the reviewing court. [The Legislature] did not require this impractical and unlikely result, but rather that the work before the reviewing court be related to or necessary for the substantial contribution made in the Commission decision for which compensation is sought. (D.03-04-034, mimeo., p. 5, emphasis added.)

As noted earlier, D.03-04-034 was affirmed by the Second Appellate District of the California Court of Appeal. Edison, note 5 supra.

D.05-01-059 interpreted the phrase "related to or necessary for the substantial contribution" from D.03-04-034. In the later decision, an intervenor had joined the Commission in opposing an appeal by a utility of D.01-09-058, where we found certain practices of the utility violated statutes or Commission orders. We ordered a variety of remedies, one of which was enjoined by the reviewing court. We denied the intervenor's request for compensation for its work in defending that remedy. We noted that the intervenor, as to the enjoined remedy, did not prevail before the court, although we also noted Edison, note 5 supra, did not require that an intervenor prevail in its judicial review work as a condition precedent to receiving compensation for its costs of obtaining judicial review. Instead, we analyzed the intervenor's work that we found had substantially contributed to D.01-09-058. Although there were several contributions, they did not relate to the remedy enjoined by the court or the practice that prompted it. Thus, we found that the intervenor's work on judicial review regarding this remedy did not relate to its substantial contributions and were not compensable.

In today's decision, we confront yet a different set of circumstances. Specifically, we must decide whether and to what extent an intervenor that contributed substantially to decisions at one phase of a Commission proceeding may recover its costs in seeking judicial review if the Commission at a later point in the proceeding takes an action that the intervenor opposes. In the context of these consolidated applications, may TURN recover its costs in challenging the Commission's settlement with Edison, predicated not on any claimed substantial contribution to the settlement but rather to decisions that preceded the settlement (D.99-10-057, D.00-03-058, and D.01-03082)? We conclude that under a correct reading of the statutes, as construed in our decisions and affirmed in Edison, note 5 supra, the answer is no.

We acknowledge that TURN substantially contributed to D.99-10-057, D.00-03-058, and D.01-03-082, and we have previously awarded TURN compensation for those contributions. The large majority of Commission proceedings, fortunately, do not require us to distinguish among an intervenor's contributions (or lack of contribution) depending on timing. Some proceedings, however, may extend over many years and involve multiple decisions The practical reality in these kinds of proceedings is that the Commission may take actions at the end of the proceedings that differ from those taken earlier. To the extent an intervenor seeks compensation for judicial litigation related to the later Commission action, the statute requires us to determine whether the intervenor has substantially contributed to the later actions.

Here, we find that TURN did not substantially contribute to either the settlement with Edison or to any further action by the Commission on remand. TURN opposed the settlement and sought in federal and state courts to obtain an order finding the settlement in violation of law. Had TURN persuaded the courts, the matter likely would have been remanded to us for further consideration, during which TURN could have advanced positions and made recommendations, and possibly have established a basis for a new claim of substantial contribution. In this scenario, TURN could have claimed compensation for the new contribution and, consistent with Edison, note 5 supra, for its costs of obtaining the judicial review that led to the remand. But TURN failed to persuade the courts, and having failed, TURN can point to no substantial contribution pertinent to the settlement with Edison.

From the foregoing discussion, it can be seen that in some situations, an intervenor must actually persuade a court to adopt the intervenor's position in whole or part for the work in obtaining judicial review to be compensable. We can generalize about those situations as follows: An intervenor's work in obtaining judicial review of a Commission order or decision to which the intervenor had not substantially contributed may be compensated only to the extent that the intervenor, through judicial review, is successful in requiring further Commission consideration of the challenged order or decision. Carefully considered, this generalization simply elaborates and applies, in the situation we are discussing, the governing principle we announced in D.02-06-070 and D.03-04-034, namely, that to be compensable, an intevernor's work before the reviewing court must be related to or necessary for the intervenor's substantial contribution for which compensation is sought.

TURN's arguments err in relying on its substantial contributions that preceded the Commission's settlement with Edison, and in maintaining that success in court is always irrelevant. In fact the judicial review costs, to be compensable here, must relate to or be necessary for a substantial contribution either to the settlement itself or, alternatively, by way of forcing further Commission consideration of the settlement as a result of success in court.

Edison, note 5 supra, approving our "related to or necessary for" test for compensability, is consistent with our holding today. The court's opinion says that, "once a customer makes [a substantial] contribution to a PUC proceeding, that customer may obtain compensation for the fees and costs of obtaining judicial review, regardless whether that judicial review work made a substantial contribution to the PUC proceeding." Edison, note 5 supra, 117 Cal. App.4^th at 1052-53, emphasis added. The quoted sentence rejects the argument by Edison that TURN's federal court work could not have made a substantial contribution to the Commission decisions because that work was performed after the Commission issued those decisions. All the court in Edison, note 5 supra, had to decide was whether TURN, having successfully resisted the utilities' federal court challenge to a Commission jurisdiction, and thus preserved TURN's substantial contribution, could recover the reasonable costs of the successful effort. We of course follow the court's holding, and indeed are faithfully applying it now in a situation where an intervenor had not made a substantial contribution to Commission action and had failed in its efforts in state and federal courts to challenge that action.

2. Contribution to the Commission's Decisions
on TURN's Initial Compensation Request

We find that TURN substantially contributed to D.02-06-070, our decision granting its initial compensation request, and to D.03-04-034, our decision denying rehearing of D.02-06-070. Likewise, TURN's successful defense of those decisions on appeal to the California Court of Appeal is compensable.