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(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(i), 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.3
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. With this guidance in mind, we turn to the claimed contribution NRDC made to D.05-09-043 in this proceeding.
A. Contribution as an Individual Intervenor
In D.05-09-043, the Commission authorized the 2006-2008 energy efficiency portfolio plans and funding levels for the utilities. As an individual intervenor, NRDC filed five rounds of comments: opening and reply comments on the utilities' June 1 applications; comments on the utilities' joint submittal on energy savings for codes and standards work; and opening and reply comments on the draft decision.
NRDC states that it contributed substantially to many parts of the proceeding leading up to D.05-09-043, and that several aspects of the final decision reflect NRDC's positions and incorporate its suggestions. We have reviewed NRDC's filings in this proceeding and compensation request, and concur with this assessment.
In particular, NRDC presented statewide summary tables with consolidated information about cost-effectiveness, energy savings, and environmental benefits across all the utilities, and supplied preliminary estimates of anticipated carbon dioxide emissions that would be avoided.4 We note that the draft and final decisions incorporated tables that were largely based on the tables presented in NRDC's initial comments.5
As directed by the ALJ, several Case Management Statement (CMS) meetings were held to discuss the various positions of all the parties regarding the utilities' applications and to try to reach consensus on as many issues as possible. NRDC was a full participant in all of these meetings, which were successful in achieving agreement in most areas. After the CMS meetings, one remaining unresolved issue among the parties was whether the utilities' portfolios needed rebalancing with a greater emphasis on peak savings. In its reply comments, NRDC argued for the need for base load as well as peak savings.6 The final decision supported NRDC's position, stating, "We agree with NRDC that the Commission should continue to require that efficiency programs target both peak and base load savings" (p. 105).
In comments on the draft decision, NRDC noted that the bill impacts of the IOUs' energy efficiency portfolios would in fact be long-term reductions, instead of the slight increases mentioned (a short-term effect).7 Consistent with NRDC's recommendation, the final decision emphasizes that the energy efficiency programs will result in an overall decrease in customer bills (p. 50).
In addition, NRDC encouraged the Commission to develop protocols and allow for "counting" the embedded energy in water efficiency measures so that the state may achieve even greater energy savings.8 Although the Commission did not adopt this recommendation in the final decision, it did recognize the potential importance of the matter and directed the Assigned Commissioner of R.01-08-028 to examine the issue further.9
B. Contribution as PAG and PRG Members
NRDC points out that it attended almost every one of the multitude of PAG and PRG meetings for each utility, as well as many of the "optional" subgroups of the PAGs (known as "PAGettes"). NRDC states that its participation played a substantial role in the PAG and PRG process that led to D.05-09-043 in numerous ways, including the following:
· By actively contributing program ideas of new measures and approaches for the utilities to consider.10
· By working as a PRG member with Energy Division to help create the summary table templates the utilities submitted in their applications as Appendices I and II, which then facilitated the development of statewide figures included in the decision.
· By providing input as a member of the PRGs on numerous aspects of the utility applications as they were being developed, including the bid evaluation criteria and fund-shifting rules.
· By working closely with each of the PRGs to write the PRG assessment reports required by the Commission to be submitted along with each of the utilities application submissions.
As discussed in D.05-01-055, the advisory group and PRG members "all burned the midnight oil for many weeks to develop and analyze portfolio plans that were responsive to the new energy efficiency rules adopted in April, 2005." We also noted that "the advisory group process established by D.05-01-055 was constructive and collaborative." Based on the submittals in this proceeding, we concluded that the process "has served the Commission well" in reaching our determinations in D.05-09-043.11 We agree with NRDC's assessment that it played a substantial role in the PAG and PRG process, and that the input from these advisory groups in turn substantially shaped the utilities' applications and the Commission's final decision on those applications.
In sum, we find that NRDC contributed substantially to D.05-09-043 as an individual intervenor as well as through its active participation in the utilities' advisory groups. Having established substantial contribution, we next consider whether the compensation that NRDC requests is reasonable.
3 D.98-04-059, 79 CPUC 2d, 628 at 653.
4 Comments of the Natural Resources Defense Council (NRDC) on Pacific Gas and Electric Company, Southern California Gas Company, Southern California Edison Company, and San Diego Gas and Electric Company's Applications for Approval of Their 2006-2008 Energy Efficiency Programs and Budgets, June 30, 2005, Figures 1 and 2, pp. 3-4.
5 See Tables 1 and 2 in D.05-09-043.
6 Reply Comments of the Natural Resources Defense Council (NRDC) on Pacific Gas and Electric Company, Southern California Gas Company, Southern California Edison Company, and San Diego Gas and Electric Company's Applications for Approval of their 2006-2008 Energy Efficiency Programs and Budgets, July 21, 2005, pp. 4-5.
7 Comments of the Natural Resources Defense Council (NRDC) on the Draft "Interim Opinion: Energy Efficiency Portfolio Plans and Program Funding Levels For 2006-2008 - Phase 1 Issues," September 6, 2005, p. 5.
8 See Comments of the Natural Resources Defense Council (NRDC) on Pacific Gas and Electric Company, Southern California Gas Company, Southern California Edison Company, and San Diego Gas and Electric Company's Applications for Approval of Their 2006-2008 Energy Efficiency Programs and Budgets, June 30, 2005, p. 7-8; and Comments of the Natural Resources Defense Council (NRDC) on the Draft "Interim Opinion: Energy Efficiency Portfolio Plans and Program Funding Levels For 2006-2008 - Phase 1 Issues," September 6, 2005, pp. 4-5.
9 D.05-09-043, pp. 170-171 and Ordering Paragraph 24.
10 As an example, NRDC refers to "NRDC Energy Efficiency Program Ideas," March 29, 2005, available at: http://www.californiaenergyefficiency.com/pagdocs/WP_NRDCEEREcommendations.doc.
11 D.05-09-043, mimeo., p. 93.
