4. Substantial Contribution
In evaluating whether a customer made a substantial contribution to a proceeding, we look at several things. First, we look at whether the Commission adopted one or more of the factual or legal contentions, or specific policy or procedural recommendations put forward by the customer. (§ 1802(i).) Second, if the customer's contentions or recommendations paralleled those of another party, we look at whether the customer's participation unnecessarily duplicated or materially supplemented, complemented, or contributed to the presentation of the other party. (§§ 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.9
With this guidance in mind, we turn to the claimed contributions DisabRA, Greenlining, and A W.I.S.H., respectively, made to the proceeding.
4.1. DisabRA's Claim of Substantial Contribution
DisabRA claims that its participation was active and substantial throughout the proceeding resulting in D.07-12-051. Given the importance of this proceeding in shaping the future of this LIEE program and given that persons with disabilities are disproportionately low income, DisabRA contends that it intervened in the proceeding and ultimately helped ensure that, in expanding and improving the LIEE program, the needs, concerns and issues faced by this unique customer constituency, persons with disabilities, were not overlooked.
Throughout the proceeding and in its comments, DisabRA analyzed and informed the Commission and highlighted the factual findings of the KEMA Report regarding persons with disabilities and made specific policy recommendations in response to those findings. DisabRA asserted that a disproportionate number of persons with disabilities rely on programs such as LIEE. Pointing to the KEMA Report findings, DisabRA underscored the statistic which showed that one in four low income households have a member with a disability, and in 20% of all low-income households, the responsibility for making energy payments on behalf of the household lies with a disabled household member.10 DisabRA also demonstrated how persons with disabilities are also highly dependent on energy, and thus on programs providing affordable access to energy, making DisabRA's participation all the more crucial.
DisabRA also pointed to KEMA Report finding, in its comment, that 56% of low-income households with a disabled member spend more than 5% of their total household income on energy.11 This dependence on energy stems from several facts, including the fact that many persons with disabilities spend more time at home than their non-disabled counterparts,12 that electricity powers much of the assistive technology which allows persons with disabilities to live independently in the community, and that some disabilities cause an individual to be particularly sensitive to extreme temperatures, thus requiring greater energy use for heating and/or cooling.
Throughout this proceeding, during the workshops and in its comments, DisabRA also offered a number of recommendations aimed at ensuring that the interests of persons with disabilities would be met by the LIEE program. These recommendations included: (1) prioritization of socio-economic objectives and goals of the LIEE program in order for the LIEE program to better serve the unique needs of persons with disabilities, including health and safety considerations of persons with disabilities, at the household level; (2) support for the Commission's staff proposed program delivery model; and (3) the provision of targeted and accessible outreach for persons with disabilities, including possible auto-enrollment into the LIEE program for those households receiving Social Security Disability Insurance (SSDI).
DisabRA contends that its efforts resulted in a substantial contribution to the proceeding. The record shows that Commission's final decision addresses the issues raised by DisabRA. Specifically, the Commission's final decision adopts DisabRA's recommendations: (1) for continued commitment to "ensuring the LIEE programs add to the participant's quality of life, which implicates equity, energy affordability, bill savings, and safety and comfort;"13 (2) for support of the Commission's staff-proposed program delivery model;14 and (3) for accessible outreach to persons with disabilities, including consideration of auto-enrollment for households receiving SSDI. Therefore, the Commission finds DisabRA's contributions substantial.
4.2. Greenlining's Claim of Substantial Contribution
Greenlining claims that it actively participated in this consolidated proceeding resulting in D.07-12-051. Greenlining contends that it and its individual coalition members represent the interests of those who have traditionally been marginalized or otherwise excluded from the public utility process: minority, low-income, inner city, and other vulnerable and underserved communities. Furthermore, Greenlining claims to represent customer interests that would otherwise be unrepresented or underrepresented before this Commission. Greenlining therefore posits that its role in this proceeding is unique in that it brings to the table the perspectives, experiences, and interests of minority, low-income, inner city, and other vulnerable and underserved communities.
Greenlining claims that it made a substantial contribution D.07-12-051 by promoting two central arguments towards better service and improved quality of life for underserved communities, low-income, and minority Californians: (1) the promotion of increased energy savings through access to clean technology and energy efficiency is the way to concurrently reduce the financial burdens on low-income and minority Californians and improve the quality of life for these underserved communities; and (2) the promotion of increased eligibility for and the penetration rates of the LIEE program.
Greenlining submits, and we find, its contribution is well reflected in the Commission's decision which provides Greenlining's contribution:
Today we clarify that the complementary objectives of LIEE programs are to provide an energy resource for California, consistent with our "loading order" that establishes energy efficiency as our first priority, while reducing low-income customers' bills and improving their quality of life. We commit to expand LIEE programs by making them available to more customers, improving their cost effectiveness and designing them in ways to make them a reliable energy resource.15
As reflected in the record for this proceeding, during workshops and in its comments throughout the proceeding, Greenlining substantially contributed and actively participated by: (1) filing meaningful opening and reply comments; (2) participated in proceeding workshops; and (3) ultimately providing comments on the proposed decision to the Commission. Greenlining also claims
that its efforts went beyond the four corners of the record of this proceeding and that Greenlining undertook efforts that complimented and supported its active participation in this proceeding, including (1) meetings with Investor-owned Utilities (IOUs); (2) meetings with Commission advisors; (3) meetings with other intervenors to discuss possible joint proposals; (4) meetings with community based organizations and faith based organizations served low-income and minority rate payers; (5) meetings with financial institutions to discuss possible financial strategies to increase access by low-income Californians to the LIEE programs and to clean and safe energy technologies, including but not limited to photovoltaic panels, in general; and (6) filing a timely response to SCE's CFL application.
Greenlining appeared in this proceeding as an advocate on behalf of low-income and minority communities. In particular, Greenlining's comments throughout the proceeding recommended the Commission: (1) emphasize the need to use energy savings as means to concomitantly advance economic development and environmental stewardship; (2) highlight the significance of using energy savings as means to reduce the financial burdens on and improve quality of life of low income and minority Californians; (3) increase eligibility for and penetration rates of the Commission's LIEE and CARE programs;
(4) simplify the CARE enrollment process; (5) improve LIEE marketing, outreach, and education initiatives; (6) eliminate the "10 year go back rule"; and (7) deny SCE's CFL proposal. Further, Greenlining also recommended specific strategies for easing and simplifying the CARE and LIEE Enrollment processes.
The decision specifically adopts several of Greenlining's key recommendations including, but not limited to: (1) improving LIEE marketing, outreach, and education initiatives;16 (2) eliminating the "10 year go back rule;"17 (3) simplifying enrollment in CARE;18 and (4 denying SCE's CFL application.19
Greenlining also claims that it added significant value to the proceeding by clearly illustrating the importance of partnering with private sector financial institutions to provide low income families with greater options to adopt and access energy efficiency. Notably, Greenlining claims, and the record reflects, that it convened a meeting of eight of the 1020 largest financial institutions in California, as well as Commissioner Dian Grueneich, Commission President, Michael R. Peevey and their chief energy advisors at the Commission on October 31, 2007, to discuss strategies for leveraging private sector financial resources and expertise to increase the effectiveness and scope of the LIEE programs.
Greenlining initiated meetings with IOUs, the Commission's staff, interested community based organizations and faith based organizations, and other intervenors to formulate joint proposals.
Given Greenlining's overall contribution to the proceeding, through advocacy, and Greenlining's unique position advocating on behalf of low-income and minority Californians, the Commission find that Greenlining has made a substantial contribution to this proceeding.
4.3. A W.I.S.H.'s Claim of Substantial Contribution
A W.I.S.H. claims, and the record reflects, that A W.I.S.H. actively participated in every aspect of this proceeding. A W.I.S.H. represented and advocated for the interests of low income energy customers and other communities, with focus on promoting sustainability, energy assistance, renewable technologies, and environmental justice for those constituencies.
In its comments and during workshops, A W.I.S.H. advocated for a more aggressive and holistic approach to LIEE by pointing out (1) the importance of leveraging and coordination with the Solar Initiative and other energy programs both at the Commission and statewide; and (2) the importance of using a network to reach the most vulnerable. The record of the proceeding also reveals that A W.I.S.H. also advocated for comprehensive and sustainable approach to weatherization including all feasible measures for low income customers and leveraging program dollars including Low-Income Home Energy Assistance Program (LIHEAP). A W.I.S.H. also pointed out the statutory basis for job skills development in "green" and new technologies, as well as equities for renters and master-metered customers. A W.I.S.H. took a significant role in advocating for the inclusion of health, safety, comfort, and greenhouse gas concerns as key objectives of the new LIEE programs. In general, A W.I.S.H. urged for a coordinated and holistic approach to energy efficiency towards achieving California's ambitious AB 32 greenhouse gas goals.
In its comments, A W.I.S.H. also provided its analysis of the KEMA Report and Department of Energy findings, whereby it illustrated the inability of low-income customers to pay for basic necessities, including energy, and the need to design and augment the LIEE programs in terms of more long-term pay back measures and goal-based budget to reach all eligible customers who wish to participate. In its comments and during workshops, A W.I.S.H. also interjected its concerns with cost tests, contending that they did not take the health and comfort issues into account or the societal objectives related to AB 32. In its comments and during workshops, A W.I.S.H. advocated in favor of broadening the targeted eligible population to include all eligible LIEE customers who wish to participate.
A W.I.S.H. attended the PHC and numerous workshops at various phases of the Commission's low-income energy efficiency proceeding. During the March 23, 2007 workshop on goals and objectives, A W.I.S.H. argued that LIEE program should be structured and integrated to take advantage of leveraging LIHEAP and other energy efficiency dollars, that job skills training as Section 327(a) of the Code provides should be pursued with "green" technologies, that health, safety, and hardship were significant concerns, that the LIEE budget was inadequate as illustrated by KEMA Report, and that all feasible as well as new measures should be considered to reach greenhouse gas and sustainability objectives. A W.I.S.H. also argued that LIEE and the low-income Solar Initiative must be coordinated, that there should be equity for renters and master-metered customers, and that the network of community service providers should be used in program delivery, as the Public Utilities Code describes.
A W.I.S.H. attended the April 17, 2007 workshop on master-meter and AB 2140 issues, again emphasizing the need for equity for this population since the majority of low income customers are renters. A W.I.S.H. shared its experience from R.03-03-017/I.03-03-018 relating to the sub-metered mobile home park customers: (1) that the mobile home park managers do not always correctly calculate and pass on the discounts to the customers; and (2) that additional Commission enforcement and oversight was needed. A W.I.S.H. also provided other helpful legal research and other insightful enforcement ideas.
On May 10, 2007, A W.I.S.H. attended another workshop relating to renters. Again, A W.I.S.H.'s input centered on ensuring equitable delivery to all low income customers. A W.I.S.H. argued in favor of expanded outreach to landlords and master-metered customers.
A W.I.S.H. also filed comments and reply comments on all aspects of the proceeding, coordinated all aspects of its contribution, wherever possible, and made a concerted effort to minimize inefficiency and duplication by submitting joint filings whenever appropriate. A W.I.S.H. also convened several meetings of statewide stakeholders to gather their expertise and inputs on low-income programs to develop and present a coordinated analysis.
In the end, A W.I.S.H.'s arguments and concerns were reflected in D.07-12-051. D.07-12-051 acknowledges the need to achieve equity among low-income renters, including master-metered customers, and home owners, by (1) requiring the utilities to develop a process to notify submetered tenants and provide them with renewal information; (2) encouraging utilities to speak directly with the customers to verify their CARE enrollment and to assist the customer in analyzing whether the discount has been properly calculated and passed on; and (3) discussing the various agencies and their respective enforcement roles to achieve that equity. Likewise, as A W.I.S.H. advocated throughout the proceeding, D.07-12-051 adopted, in part, a more aggressive outreach and marketing as well as expanded automatic enrollment to reach hard-to-reach customers, such as public housing tenants, renters, and master-metered customers.
In addition, as advocated by A W.I.S.H., D.07-12-051 recognizes the importance of and therefore required coordination of LIEE and low income solar programs to achieve its energy efficiency and greenhouse gas goals. Furthermore, the Decision embraces A W.I.S.H.'s holistic leveraging concept wherein we provide that the LIEE programs be designed to promote coordination with other existing local, state or federal programs, when feasible.21
A W.I.S.H. has raised numerous other issues that the Commission ultimately adopted, in part or in whole. The record of the proceeding shows that A W.I.S.H.'s participation included advocacy for several positions which the Commission did not ultimately adopt, such as leveraging goals, greater parity between renters and homeowners with respect to NGAT policies, expanded automatic or categorical enrollment, and all feasible measures in low-income weatherization. A W.I.S.H.'s research of similar programs in different states and best practices in those states served as basis for some of the positions not expressly adopted by the Commission. However, its public policy research and framework contributed to the record and meaningful discussion. While these positions may not have been adopted in D.07-12-051, A W.I.S.H.'s contribution contributed to a more informed and meaningful discussion which in turn yielded a thoughtful decision here.
In its Response to A W.I.S.H.'s request, SCE objected to full compensation and contended that A W.I.S.H.'s request is "excessive, unreasonable and seek compensation for matters that are beyond the scope of the proceeding, for duplicative efforts, and for recommendations and work that did not substantially contribute to D.07-12-051." SCE suggests A W.I.S.H. seeks to be compensated for its "day-to-day operations" and for funding for its other "extraneous outreach, research and community meetings." SCE contends A W.I.S.H.'s request should be reduced.
We agree with SCE in part and disagree in part. We find that A W.I.S.H.'s request here appears generally supported by its level of participation and commensurate with its substantial contribution to the proceeding. This policy development proceeding necessitated creative brainstorming exercises which invariably lead to ideas, proposals, recommendations, etc. being considered yet not finally adopted by the Commission for various reasons. Thus, while A W.I.S.H.'s positions were not adopted by the Commission in their entirety or as specifically proposed by A W.I.S.H., the record of the proceeding shows a clear and full participation that supplemented the necessary discussions which ultimately resulted in D.07-12-051. Therefore, the Commission finds A W.I.S.H.'s contributions here substantial.
4.4. Determinations of DisabRA's, Greenlining's, and A W.I.S.H.'s Claims of Contribution
The Commission has awarded full compensation even where the intervenor's positions were not adopted in full, especially in proceedings with a broad scope. (D.98-04-028, 79 CPUC2d 570, 573-574.)
The proceeding at issue here was initiated in January 2007. The rulemaking identified twelve issues to be addressed, ranging from program objectives and priorities to the implementation of AB 2140. There were three rounds of comments and replies leading up to the final decision: (1) comments/ replies on LIEE program objectives and goals; (2) comments/replies on renter participation in LIEE and AB2104; and (3) comments/replies on how the LIEE program might address issues raised by the KEMA Report. The resulting final decision incorporates multiple iterations of the comments and replies and "sets a new course for the LIEE programs in California."22
Here, DisabRA, Greenlining, and A W.I.S.H. each actively participated and achieved a significant level of success on the varying issues each raised during the proceeding, as discussed in the foregoing Sections 4.1, 4.2 and 4.3. DisabRA made a significant contribution by advocating for the unique issues, concerns and interests of persons with disabilities. Greenlining and A W.I.S.H. likewise actively participated and made significant contributions in the public policy discussion which was ultimately reflected in D.07-12-051.
In the areas where we did not adopt their position in whole, or in part, we nonetheless benefited from their respective unique perspective, analysis, input and discussion of most of the issues which each raised.
9 D.98-04-059, 79 CPUC2d 628 at 653.
10 DisabRA Comments, October 16, 2007, at 1-4.
11 Id.
12 Id.
13 D.07-12-051, December 20, 2007, at 23-24, 29.
14 Id. at 42-44.
15 D.07-12-051 at 2-3.
16 Id. at 86 (See Finding of Fact 18 "ME&O is essential to an effective LIEE program" and Finding of Fact 19. "Coordinated ME&O efforts can improve program cost-effectiveness and customer response.")
17 Id. at 87 (See Finding of Fact 20, "The ten year `go back' rule may unjustifiably limit cost-effective LIEE program installations.")
18 Id. at 89 (See Finding of Fact 11, "The utilities should automatically qualify for CARE discounts those customers who live in public housing because they have already demonstrated to public officials their low-income status.")
19 Id. (See Finding of Fact 12, "SCE should be authorized to modify its application for authority to spend an additional $22 million on CFL distribution as part of its LIEE budget, as set forth herein.")
20 The two financial institutions that were unable to attend the meeting in-person committed to partnering with the Commission in the future to increase access by low income and minority communities to energy efficiency and clean technology.
21 D.07-12-051 at 34.
22 D.07-12-051 at 3.
