5. 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 §§1801.3(f) 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.1
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 contributions TURN made to the proceeding.
TURN contends that its participation in this proceeding made a variety of substantial contributions to both D.06-04-033 and D.06-12-031. In phase one, TURN recommended that rolled-in ratemaking treatment not be allowed for the cost of expanding the receipt point capacity at Otay Mesa. TURN was also able to obtain the agreement of potential Otay Mesa shippers in the phase one Joint Recommendation, and in the phase two Joint Proposal, that the first 700 million cubic feet per day of takeaway capacity at Otay Mesa would be funded on an incremental basis rather than being rolled into rates. The Joint Recommendation and the Joint Proposal provided that in return for the shippers funding the incremental cost of expansion, these shippers would receive a scheduling right for the new capacity. TURN contends that although D.06-04-033 did not adopt the Joint Recommendation in phase one, most of the essential features of the Joint Proposal, as a result of TURN's earlier efforts in phase one as well as in phase two, were incorporated into the system of firm access rights adopted in the phase two decision, D.06-12-031. TURN also contends that D.06-04-033 agreed with TURN's position that system integration should be implemented by advice letter, and that the implementation take effect when the liquefied natural gas (LNG) actually begins to flow through the new Otay Mesa receipt point.
We acknowledged in D.06-04-033 that the Joint Recommendation "provides that the party who expands capacity on an incremental basis should have a priority in scheduling," and that the "recommendation makes sense from the point of view that one who makes the investment should receive something in return." (D.06-04-033, p. 48.) However, we did not adopt the Joint Recommendation in phase one for the following reasons:
Although the recommendations [in the Joint Recommendation] may have merit, the parties to this proceeding were not informed of the Joint Recommendation until the opening briefs were filed after the close of hearings in the system integration phase. The parties were not provided with notice or an opportunity to be heard regarding the Joint Recommendation. In addition, several of the recommendations resolve firm access rights issues, which are supposed to be resolved in the firm access rights phase of this proceeding. Due to these procedural problems, we decline to adopt the Joint Recommendation. (D.06-04-033, pp. 62-63.)
The groundwork in the Joint Recommendation that TURN undertook in phase one, provided the foundation for the Joint Proposal in phase two. In D.06-12-031, we adopted several features of the Joint Proposal, including the funding of new receipt point capacity or expansion of existing receipt point capacity on an incremental cost basis, and providing the funding shipper with the right to use that capacity. We stated in D.06-12-031 that:
The adoption of these key features from the Joint Proposal, and their incorporation into the FAR system will provide certainty to potential gas suppliers that their gas supplies will be able to access the southern California gas market. At the same time, the adopted features provide a set-aside capacity incentive for those parties who are willing to fund the cost of new or expanded capacity on an incremental cost basis, and assurance to ratepayers that the cost of this capacity will not be recovered in their rates. (D.06-12-031, pp. 75-76.)
As part of the Joint Recommendation, TURN and the other parties, agreed that the "adopted cost allocation and rate design methodology for integrated transmission rates shall be placed into effect when Baja LNG supplies begin to flow through the Otay Mesa receipt point." (D.06-04-033, p. 8.) In adopting the system integration proposal, we ordered that the "integrated transmission rates shall go into effect on the first day of the month in which regasified LNG is expected to flow through Otay Mesa." (D.06-04-033, pp. 64, 71.)
The Commission has awarded full compensation even where the intervenor's positions were not adopted in full, especially in proceedings with a broad scope. (See D.98-04-028, 79 CPUC2d 570, 573-574.) In the phase one decision, although we did not adopt the Joint Recommendation, we agreed with TURN that the integrated transmission rates should go into effect when the LNG begins to flow through Otay Mesa. In addition, because many of the issues in the Joint Recommendation were to be addressed in phase two rather than phase one, and because the Joint Recommendation in phase one formed the basis for the Joint Proposal in phase two, it is appropriate to award compensation in D.06-04-033 for TURN's work on the Joint Recommendation, which resulted in the adoption of several of the elements of the Joint Proposal in D.06-12-031.
In addition to TURN's efforts regarding the Joint Proposal in phase two, TURN also advocated for the retention of SoCalGas' peaking rate, opposed the utilities' proposal to retain 25% of the interruptible off-system delivery revenues, and advocated to reduce the cost of implementing the citygate pooling service. We adopted TURN's views in D.06-12-031 on the peaking rate, the reduction in the costs of the citygate pooling service, and went a step further than TURN had recommended on how much of the interruptible off-system delivery revenues should be retained by SoCalGas' shareholders.
5.1. Contributions of Other Parties
Section 1801.3(f) requires an intervenor to avoid unnecessary participation that duplicates that of similar interests otherwise adequately represented by another party, or unnecessary for a fair determination of the proceeding. Section 1802.5, however, allows an intervenor to be eligible for full compensation if their participation materially supplements, complements, or contributes to that of another party if that participation makes a substantial contribution to the commission order.
TURN notes in its request for compensation that the Division of Ratepayer Advocates (DRA) and TURN were the only parties representing small consumer interests. However, TURN and DRA generally advocated different positions on the issues in phase one and phase two. As a result, TURN asserts that its work was unique and did not duplicate the participation of DRA or of any other parties.
TURN also acknowledges that it actively cooperated with a number of other parties in both phases, which resulted in a substantial reduction in the number of hours devoted to this proceeding. In phase two, TURN, SDG&E and SoCalGas presented joint testimony on the peaking rate issue and on the Joint Proposal.
Based on the differences between the positions of DRA and TURN in both phases of this proceeding, and TURN's cooperation with other parties in sponsoring joint testimony on various issues, we find that TURN did not duplicate the efforts of DRA or of other parties in this proceeding.
Based on TURN's activities in this proceeding, as reflected in D.06-04-033 and D.06-12-031 as discussed above, we conclude that TURN made a substantial contribution to both decisions.
1 D.98-04-059, 79 CPUC2d 628 at 653.
