IV. Substantial Contribution

In evaluating whether a customer made a substantial contribution to a proceeding, 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(h).) 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(h) 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.²

Should the Commission 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.³ With this guidance in mind, we turn to the claimed contributions CNUC made to the proceeding.

CNUC asserts that its substantial contribution to D.05-01-030 was in successfully blocking proposed changes to the Rule 35 "tree-trimming" rules in GO 95. These efforts, however, overlapped to some extent the work of several utilities and of the Commission's Consumer Protection and Safety Division (CPSD). In all of the Rule 35 changes proposed by William Adams, for example, those opposing the changes included eight utilities, one labor organization, two private organizations and CPSD, in addition to CNUC.

CNUC was cautioned at the time of its NOI that no compensation would be awarded for duplicative work, and it was asked to explain in subsequent filings how its efforts differed from those of other parties. In its supplemental NOI, CNUC sought to distinguish its efforts, stating:

CNUC provided the entire workshop group a formal presentation that covered the current state of [Utility Vegetation Management]-related laws in the U.S. and how changes in them can result in significant impacts on cost and the environment. This example of a non-duplicative effort will be supplemented in greater detail in our final Request for Compensation. (Supplemental Notice, at 3.)

In its request for compensation, CNUC states that it participated in all workshop sessions involving proposed changes to Rule 35. Because of their unique backgrounds as experienced arborists, CNUC's partners state their belief that they provided insights into vegetation management that helped persuade CPSD to withdraw some of the Rule 35 changes it had originally supported. Additionally, CNUC provided substantial assistance in helping craft definitions related to Rule 35, including the contested definitions of vegetation strain and abrasion. Other workshop participants, including CPSD, agree that CNUC provided facts and statistical calculations that helped shape consensus on Rule 35 and, ultimately, led to the Commission's adoption of the consensus position in this area.

We conclude that CNUC made a substantial contribution to the workshop product and the Commission decision, although we also conclude that a significant portion of CNUC's claimed contribution was merely cumulative and did not materially supplement, complement, or contribute to the presentation of other parties. We will adjust the amount awarded to CNUC accordingly. This adjustment is most easily effected by careful analysis of CNUC's claimed hours, which we examine in the next section.