4. 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.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. With this guidance in mind, we turn to the claimed contributions Greenlining and CFC made to the proceeding.
Greenlining: Greenlining alleges that as the key, lead advocate in this rulemaking for amendments to GO 77-L, it developed, refined and advanced its position through research, the hiring of an expert, written comments, participation at the public workshop and at oral argument, and meetings with the utility Respondents. Greenlining states it was the first to raise each of the six major GO 77 amendments adopted by D.06-12-029 and points to decision text that explicitly acknowledges Greenlining's contribution on several of them.
We agree that Greenlining achieved a high level of success on most of the issues it pursued in this rulemaking. The issues on which it prevailed relate most directly to amendment of GO 77-L to provide more meaningful disclosure of executive compensation, consistent with the scope of the amended OIR. Greenlining did not prevail on several other issues beyond that scope (its proposal to study whether any energy utilities issued backdated option grants; its proposal to study whether shareholder payment of "excessive" CEO compensation influences ratepayer-financed middle management salaries and labor contracts for union employees; its proposal to limit severance pay for top executives; its attempt to obtain discovery on the billing rates for utility lawyers, etc.). The amended OIR observed that some of these issues fell, at least arguably, outside the Commission's jurisdiction.
We cannot claim to have benefited from Greenlining's discovery efforts on billing rates for utility lawyers - a subject unrelated to the scope of this rulemaking. Likewise its subsequent motion to compel that discovery3 and its correspondence to the ALJ regarding the standards Greenlining believes the Commission should use in calculating intervenor compensation, did not substantially contribute to our decision. (The latter issue is properly raised in our annual review of intervenor compensation rates, not in individual proceedings.) Therefore, the time spent on these endeavors is not compensable.
In other areas where Greenlining did not prevail, however, we make no additional adjustment to reduce its compensable time. We recognize that Greenlining's efforts helped to "push the envelope" for thinking about the proper scope of this rulemaking. Furthermore, Greenlining's development of those ideas, given the nature of the proceeding, occurred in the several rounds of filed comments, rather than in extensive prepared testimony or hearings.
CFC: CFC became a party to this proceeding to advocate for much stronger rules on affiliate transactions and reporting than we ultimately adopted. CFC's comments included its review of holding company abuses in the 1920s that led to the enactment of the now-repealed Public Utilities Holding Company Act (PUHCA), the results of its research on current trends in the electric and natural gas industries, including mergers, etc., and its report on actions regulators in some other states have taken in response to the repeal of PUHCA. D.06-12-029 does not expressly attribute any specific rule revisions to CFC's efforts, but as CFC points out, revisions that strengthen the prior rules are consistent with CFC's overall position. We did not adopt CFC's suggestions that we impose complete separation and eliminate all shared services, but we did strengthen the rules in this area. We find that CFC's efforts made a substantial contribution to D.06-12-029.
A. 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.
Greenlining: As previously noted, Greenlining took the lead in advocating for amendments to GO 77-L. Division of Ratepayer Advocates (DRA), the only other aligned party on these issues, played a much smaller role and through its own comments essentially contributed to Greenlining's effort, rather that than other way around.
CFC: In the area of revision of the affiliate transaction rules, CFC was most closely aligned with the DRA. The Utility Reform Network (TURN) addressed a narrow issue, ring-fencing, late in the proceeding. CFC and DRA provided sufficiently different perspectives that we find their efforts were complimentary but not duplicative.
2 D.98-04-059, 79 CPUC2d, 628 at 653.
3 See Ruling of Assigned Commissioner and Administrative Law Judge Denying Motion to Compel Discovery, December 12, 2006.
