INTRODUCTION - California

?Decision 20-09-040September 24, 2020 ASK Initials "Enter your initials in all CAPS (e.g. ATTY)" [/d "ATTY"]Initials \* MERGEFORMAT ASK AgendaNo "Enter the agenda item number (e.g. CA-4)" [/d "Agenda Item No."] \* MERGEFORMAT BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIAOrder Instituting Rulemaking to Continue Implementation and Administration, and Consider Further Development, of California Renewables Portfolio Standard Program. FILLIN "Enter the caption for this decision. If there is more than one case, separate with hard returns." [/d "Caption"] \* MERGEFORMAT Rulemaking 15-02-020 (Filed on February 26, 2015 ASK FilingDate "Enter the filing date for this case (Month day, year). If there is more than one case, separate with hard returns and keep in the same order as the case numbers they refer to." \* MERGEFORMAT )ORDER MODIFYING DECISION (D.) 18-11-010 AND DENYING REHEARING OF D.18-11-010, AS MODIFIED INTRODUCTIONToday’s decision disposes of the application for rehearing of Decision (D.)?18-11-010 (or “Decision”), filed by the Clean Coalition.On February 26, 2015, the Commission opened Rulemaking (R.) 15-02-020 to continue implementation and administration of the California Renewables Portfolio Standard Program. (See D.18-11-010, p. 2.) Clean Coalition participated in the proceeding by filing documents and comments. On December 22, 2016, Clean Coalition filed an intervenor compensation claim for its contributions to D.16-10-025. Clean Coalition’s claim identified the following areas to which it asserts it made substantial contributions: ?????determining the rules around the interconnection requirements including rules for applicants in the interconnection and BioMAT bidding queues; and (2) submitting comments on the Bioenergy Association of California’s interconnection proposal regarding how to implement SB 840. Clean Coalition’s total claim was $?10,747.50.D.18-11-010 denied Clean Coalition’s claim. D.18-11-010 states that Clean Coalition’s claim for intervenor compensation was denied because Clean Coalition’s other work and projects with utility companies, local government and renewable energy companies meant that it was not single-mindedly devoted to representing the interests of underrepresented ratepayers in the proceeding and thus not eligible for intervenor compensation under the statute. (D.18-11-010, pp. 33-34, Finding of Fact 2.)Clean Coalition timely filed an Application for Rehearing of D.18-11-010, in which it alleges that D.18-11-010 is unlawful or erroneous because 1) it is not based on record evidence; (2) it cited evidence outside the record; (3) the assigned Administrative Law Judge (ALJ) violated due process by acting as investigator, prosecutor and judge and unfairly denied Clean Coalition the ability to rebut the allegations; (4) certain facts in the record contradicted the findings and certain other findings are not supported; (5) the Decision introduced a new and ill-defined standard regarding intervenors’ eligibility for compensation; and (6) it penalized Clean Coalition for the Commission’s failure to render preliminary decisions on the NOI. Clean Coalition also lists another five issues, some of which overlap and are sub-issues, in its discussion of the first issue. Clean Coalition also requested oral argument. No response to the rehearing application was filed.We have carefully reviewed each and every allegation in Clean Coalition’s rehearing application. We find that the record supports our finding in D.18-11-010 that Clean Coalition’s relationships and projects with other entities meant that it was not single-mindedly devoted to representing the interests of underrepresented customers in the underlying proceeding (R.15-02-020), and therefore, not compensable. The request for oral argument is also denied.We note, however, that D.18-11-010 incorrectly states that Clean Coalition’s bylaws did not authorize the organization to represent residential customers. We have removed this misstatement and the conclusions based on this misstatement. D.18-11-010 also contains several references to information about Clean Coalition that are not in the record in this proceeding. We deleted any such references to information outside the record. With these modifications, rehearing of D.18-11-010 is denied as no legal error has been demonstrated. DISCUSSION:The Commission lawfully evaluated the record in denying the intervenor compensation claim based on Clean Coalition’s ineligibility.Clean Coalition contends that the Decision made several factual errors and conclusions about its eligibility for intervenor compensation. (App. For Rhg., p. 2.) It alleges the Decision erred: (1) by finding Clean Coalition’s advocacy was not aligned with underrepresented ratepayers; (2) by creating a “novel economic requirement” to prove ratepayer representation; (3) in finding that Clean Coalition was different from other environmental groups; (4) by finding that Clean Coalition was a financially interested party without support in the record; and (5) because there is “no evidence” Clean Coalition is an agent of medium or large commercial interests. As explained below, Clean Coalition’s allegations of legal error lack merit.The purpose of the intervenor compensation program is to encourage the “effective and efficient participation of all groups that have a stake in the public utility regulation process.” (Pub. Util. Code § 1801.3(b).) It does so by awarding costs of an individual’s participation if certain criteria are met. The statute permits three categories of customers to apply for an award: (1) actual utility customers, (2) authorized representatives of utility customers, and (3) organizations whose articles and bylaws authorize the representation of residential or the small commercial customers. (Pub. Util. Code § 1802(b)(1).) To be eligible for compensation under this third category, the Commission has determined the organization must be focused “single-mindedly” on pursuing the interests of utility customers that it purports to represent in the proceeding. ([D.0004026] (2000), p.12.) The program “should be implemented in a manner that ensures customer interests are represented by entities free from conflicts that may arise in representing two interests, the competitor's as a competitor and the ratepayers' as customers (either residential or business).” ([D.00-04-026] (2000), p. 12.) The Commission has denied compensation where intervenors represented conflicting interests and did not focus on underrepresented ratepayers. (See, e.g., [D.93-11-020] (1993), 52 C.P.U.C.2d 97 (denying intervenor compensation to CEERT because its “broad based environmental goals” also furthered the interests of its renewable energy company-members.) To ensure compliance with this principle, the Commission has routinely inquired into the intervenor’s activities and whether the intervenor has received payments, grants, contributions or donations from participants in a Commission-regulated industry or market (or from groups affiliated with such participants). These factors disqualify the intervenor from receiving compensation. Clean Coalition describes itself as a nonprofit organization focused on removing “barriers to procurement and interconnection of distributed energy resources.” It acknowledges its collaboration with utilities and municipal governments to advance “the technical and financial viability of local renewables and other [distributed energy resources].” In this instance, the Commission determined that Clean Coalition was focused on advancing renewable energy interests, which could in turn, advance the economic interests of utilities, load-serving entities, government entities, and renewable energy companies. (D.18-11-010, pp. 24, 33.) In this regard, Clean Coalition’s assertions that it does not compete with utilities did not ease the Commission’s concerns that Clean Coalition represented ineligible interests (D.18-11-010, p. 22.) Thus, the Commission properly concluded the organization was not eligible for intervenor compensation because it was not a group dedicated to representing the interests of the underrepresented ratepayers before the Commission, despite Article 12 of National Capitalist Solutions Bylaws.In its application for rehearing, Clean Coalition alleges that the Commission erred in concluding that Clean Coalition’s efforts to promote in-front-of-the-meter resources “do not reflect Clean Coalition’s interest in underrepresented residential ratepayers.” (Decision, p. 17, App. For Rhg., p. 5.) Clean Coalition contends that this conclusion is not supported by record evidence and is contrary to the history of the organization’s engagement at the Commission. (Ibid.) Clean Coalition thus appears to argue that the Commission erred in not recognizing that Clean Coalition’s work at the Commission protects strong ratepayer financial interests (Id., 6), and thus fails to acknowledge that “its work to promote effective markets for DER advances important ratepayer interests.” (Ibid.) According to Clean Coalition, this failure to bridge the analytic gap between evidence and the ultimate decision violates Topanga Ass’n for a Scenic Comm’ty v. Cty. Of Los Angeles (1974) 11 Cal.3d 509, 511. Clean Coalition argues that the Commission erroneously concluded that Clean Coalition “position[s] itself to bring competitive advantage to market participants”, and that this erroneous conclusion is at the core of the Decision, but it lacks support in the record. (App. For Rhg., p. 12.)Clean Coalition’s arguments on rehearing do not persuade us to find Clean Coalition eligible for compensation under the statute. The Decision focused on determining whether Clean Coalition is eligible under the statute to receive intervenor compensation. It did not reach the issue of whether Clean Coalition’s intervention raised issues important to ratepayers. As the Decision states, even if the interests advocated by Clean Coalition were to coincide with the interests of residential ratepayers, such advocacy alone is not compensable under the statute (D.18-11-010, p. 30.) The record supports the Commission’s findings that Clean Coalition is ineligible to receive intervenor compensation. First, Clean Coalition participated in several projects with utility companies, Community Choice Aggregators (“CCAs”), and local governments. These projects were focused on distributed energy resources. These projects demonstrate that Clean Coalition’s mission involved partnerships and compensated activities with commercial interests, utilities, and government entities.Clean Coalition’s other allegations that the Decision improperly applied a new economic requirement disqualifying organizations without paid memberships, unfairly distinguished the organization from other environmental groups, wrongly found that Clean Coalition was a financially interested party, and wrongly found that Clean Coalition represents the interests of moderate to large commercial interests are also without merit. The Decision included a detailed analysis of the record that led to Commission’s conclusion that the organization did not establish financial hardship and was not like other environmental groups because it had divided loyalties (between representing commercial renewable energy market participants and residential customers). (See D.1811-010, pp. 7-13.)The Commission has made clear in the past that an “intervenor ultimately funded by ratepayers should be single-mindedly pursuing the interest of the utility customers that it purportedly represents.” ([D.00-04-026] (2000), p. 12.) Merely stating an intention to promote distributed energy resources and submitting a copy of the bylaws authorizing Clean Coalition to represent ratepayers is alone not sufficient to receive compensation. Rather, the organization’s actions must be single-mindedly focused on residential ratepayers to be eligible for intervenor compensation. Here, the record showed that many of Clean Coalition’s activities were closely tied to utilities, local governments as well as other business entities. Thus, the finding of ineligibility is supported by the record.Clean Coalition also claims that the Decision improperly states that its bylaws did not authorize the group to represent residential ratepayers. (App. For Rhg., p.?3.) Clean Coalition suggests that this error taints the rest of the analysis. Clean Coalition is wrong. Over the course of this proceeding, Clean Coalition submitted several versions of its bylaws. Some versions included an authorization to represent the interest of residential electrical customers and at least one other omitted this authorization. In May 2015, Clean Coalition submitted an unsigned and undated version of its bylaws containing the authorization to represent residential ratepayers. Later, in March 2016, Clean Coalition filed a May 5, 2015 version of the bylaws, which also included the authorization. On June 2018, it submitted what it described as the “most recent version” of the bylaws, dated August 19, 2009 that omitted the authorization to represent ratepayers. The Decision understandably but incorrectly referenced this 2009 version of the bylaws when it stated that Clean Coalition was not authorized to represent residential ratepayers. (D.18-11-010, p. 20.) While Clean Coalition correctly raises this factual inaccuracy, this error did not taint the Decision’s analysis. At most, it amounts to harmless error since the record supports the Commission’s finding that Clean Coalition was not eligible for intervenor compensation, notwithstanding the statement in the bylaws that it represents residential ratepayers. As discussed below, this statement by itself is not controlling on the issue of eligibility. However, we modify the Decision to correct this error by referencing the correct version of the bylaws. In sum, the record supports our finding that Clean Coalition was not eligible for intervenor compensation because it does not exclusively represent underrepresented ratepayers as required by statute. Its relationships with utility companies, renewable energy companies, and governmental entities as documented on the record confirm this finding. Therefore, Clean Coalition has not demonstrated that the Commission committed legal error in concluding that the organization is not eligible for intervenor compensation. Clean Coalition’s rights were not violated in this proceeding. Clean Coalition claims that the Decision failed to comply with the Section 1701.1(e)(8) requirements for adjudicatory proceedings that require the Commission to render decisions “based on the law and on the evidence in the record.” (App. For Rhg., p.?2.) Clean Coalition cites to the California Supreme Court Decision in Topanga Association for a Scenic Committee v. City of Los Angeles for the principle that this Decision must set forth its findings that “bridge the analytic gap between the raw evidence and ultimate decision or order.” (App. For Rhg., p. 2.)) Clean Coalition also claims that its due process rights were violated when the ALJ reviewed portions of its website and purportedly engaged in ex parte communications in preparing the Decision. (App. For Rhg., p. 13.) It claims that these materials were not properly authenticated. We agree, insofar as the Decision relied on extra record evidence in the form of references to websites discovered by independent internet research, and not entered into the record in Commission proceedings, and will delete those references as shown below. Otherwise, we reject Clean Coalition’s arguments that its due process was violated. As Clean Coalition acknowledges, the statutory provision that it cites applies to adjudications. (App. For Rhg. At 3.) It is wellestablished that rulemakings do not require hearings. Likewise, decisions about eligibility for intervenor compensation may consider the intervenor’s involvement in other Commission proceedings. Moreover, the decision, as modified below, is fully based on the record and contains appropriate findings. With the corrections to remove the extra-record evidence, Clean Coalition has not established that the ALJ exceeded the proper role in determining Clean Coalition’s eligibility. Regardless of certain references in the Decision that were derived from independent internet research, and which we will delete, the remaining record supports the Commission’s findings. Clean Coalition’s partnerships and paid projects with the various utility companies, local governments, and other renewable energy companies are prominently displayed on its website. Clean Coalition voluntarily introduced its website into the record on several occasions in this proceeding including in its Comments on the Proposed Decision Denying Intervenor Compensation Claim of the Clean Coalition [R.15-02-020] 6/11/18, p. 12. By introducing its website into the record by referring to it in its Comments, Clean Coalition’s website is part of the record in this proceeding. Clean Coalition also referred to its projects and partnerships with entities other than small ratepayers, as well as to its website, and in filings in numerous other proceedings before the Commission. The activities referenced by Clean Coalition reasonably give rise to the inference that Clean Coalition was not single-mindedly focused on the interests of residential or the interests of small commercial ratepayers in this proceeding, which is the threshold statutory requirement for an award of intervenor compensation. (Pub. Util. Code § 1802(b).) In sum, Clean Coalition’s argument does not establish legal error based on the law and facts of this case. Again, since the extrarecord references are unnecessary to the Commission’s decision, the order on rehearing deletes them.The absence of a ruling on Clean Coalition’s Notices of Intent to File Intervenor Compensation is not a basis for finding legal error.Clean Coalition argues that it was penalized by the Commission’s failure to rule on its Notices of Intent to File Intervenor Compensation (NOIs). (App. for Rhg., pp.?2, 18.) This does not establish legal error requiring rehearing. The approval of an intervenor’s initial showing of financial hardship based on their NOI is only a preliminary assessment. A financial hardship finding at this stage does not mean that the intervenor necessarily will receive an award at the end of the proceeding. As explained above, the Commission found that Clean Coalition was not entitled to an award here because it was not single-mindedly devoted to advocating for the interests of underrepresented ratepayers. Thus, even if the ALJ had issued a decision on the NOI, that would not alter the Commission’s ultimate finding that Clean Coalition was ineligible for intervenor compensation. Clean Coalition’s other allegations, including that it is entitled to compensation based on equitable principles, lack merit. Clean Coalition also claims this Decision not only “abandon[ed] prior rulings that it was eligible for compensation as an organization representing the interests of residential customers” but also that “was fundamentally unfair to apply that standard retroactively.” (App. For Rhg., p. 21.) Clean Coalition insists that they are entitled to compensation for the work they put into the proceeding based on “the reasonable expectation” that they would be compensated again. (Ibid.) They note that they were awarded intervenor compensation in several past proceedings. They argue, at minimum, for compensation up to the date of the decision in this rulemaking in December 2016. This argument lacks merit. Equitable principles are not a basis for awarding intervenor compensation. The Public Utilities Code only permits the Commission to grant intervenor compensation after a final decision in the proceeding in which the applicant is seeking intervenor compensation. In D.16-06-059, the Commission denied WBA’s claim for intervenor compensation based on “equitable estoppel.” This Commission has explicitly held that estoppel principles cannot be invoked to prevent it from identifying and responding to legal requirements that prevent a party from being awarded compensation. We have so ruled in cases where the ALJ preliminarily found eligibility to exist, and where we ourselves issued an order implying compensation could be awarded. (Denying Rehearing of D.07-12-006 (2008) [D.08-11-061], p. 15, 2008 Cal.P.U.C.LEXIS 572, pp. 24-35;?[*25]?Denying Notices of Intent to Claim Compensation (2014) [D.14-05-030], 2014 Cal.P.U.C. LEXIS 217, pp. 23-28.)Similarly, in D.14-05-030, 2014 Cal. PUC LEXIS 217, the Commission held that equitable estoppel cannot be used as a basis for an intervenor compensation claims. It is not possible for any of the parties to this proceeding to utilize equitable estoppel as a means to obtain intervenor compensation for to do so would require this Commission to interpret and apply Pub. Util. Code § 1801.3(a) in a manner that is inconsistent with its plain meaning. In Joseph George Distributor v. Department of Alcoholic Beverage Control (1957) 149 Cal.App.2d 702, 713, the Court stated that "the government may not be estopped so as to?[*25]? 'frustrate the purpose of its laws or thwart its public policy,'" (quoting from County of San Diego v. California Water & Telephone Company (1947) 30 Cal.2d 817, 826.)Clean Coalition cannot rely on another proceeding’s determination that it is eligible for intervenor compensation, if to do so would be inconsistent with the plain meaning of the statute, as it is here. Clean Coalition’s argument against a permanent disqualification from receiving intervenor compensation awards in future proceedings has merit. Clean Coalition argues that it was a violation of their due process rights to permanently ban the organization from receiving intervenor compensation. (App. For Rhg., p. 16.) While this argument has merit, Clean Coalition does not indicate where the Decision permanently disqualifies it from being compensated and it is unclear how and where the Decision does so. Nonetheless, we note there is no statutory authority within Section 1801 et seq. of the Public Utilities Code permitting a ban on all claims of intervenor compensation, including future claims. Rather, the authorizing statute for intervenor compensation is set up to evaluate individual claims tied to each proceeding. While Clean Coalition is not eligible based on the facts before the Commission in this claim for intervenor compensation, we will look at each claim for compensation based on the unique facts presented. Clean Coalition also requested oral argument for its Application for Rehearing. Rule 16.3 of the California Public Utilities Commission Rules of Practice and Procedure states that parties requesting oral argument must “explain how oral argument will materially assist the Commission in resolving the application, and demonstrate that the application raises issues of major significance for the Commission”. Because Clean Coalition failed to provide any explanation for why the Commission should grant oral argument, this request is denied.CONCLUSION:We have carefully reviewed each and every allegation in Clean Coalition’s rehearing application. We find that the record supports our conclusion in D.18-11-010 that Clean Coalition was not single-mindedly devoted to the interests of individual residential or small commercial customers whose interests were underrepresented in this underlying proceeding (R.15-02-020), and therefore, not eligible for intervenor compensation. Based on discussion set forth above and the modifications we make herein, we find that there is no merit to Clean Coalition’s allegations of legal error in the Decision. Accordingly, rehearing of D.18-11-010, as modified below, is denied. THEREFORE, IT IS ORDERED that:1.D.18-11-020, is modified as follows: On page 15, third paragraph, first sentence, delete: “fiscal sponsor NCS:19” and insert: “mission statement:”On page 15, delete the four paragraphs at the bottom of the page, starting with “The Clean Coalition is a nonprofit” and ending with “adoption of local renewable energy.” in their entirety.On page 16, the first three paragraphs from the top of the page, delete the paragraphs starting with “Grid Modernization Policy” and ending with “:”.On page 16, third paragraph from the top of the page, delete “replicates the above” and insert:“states”On page 16, last full paragraph, delete the first sentence starting with “Clean Coalition explains” in its entirety.On page 18, footnote 28, delete in its entirety.On page 19, second paragraph, delete the entire paragraph starting with “U.S. Virgin Islands” in its entirety.On page 19, third paragraph, delete the entire paragraph starting with “Portola Valley” in its entirety.On page 19 and 20, last paragraph on page 19 and the top of page 20, delete the paragraph starting with “Also, Clean Coalition’s staff members” and ending with “Principal and founder of Right Cycle.” in its entirety.On page 19, footnote 29, delete in its entirety.On page 19, footnote 30, delete in its entirety.On pages 20 and 21, first heading, delete the heading and the following three paragraphs starting with the heading “Section 4.3 Clean Coalition is Not Authorized to Represent Residential Ratepayers” and ending with “has denied compensation based on these factors.35” in their entirety.On page 21, on the heading on third line of page, delete “4.4” and insert:“4.3”.On page 21, first full paragraph, fifth sentence, delete “and are not obligated to support Clean Coalition in any manner,”.On page 21, footnote 37, delete in its entirety. On page 23, on the heading at the top of the page, delete “4.5” and insert:“4.4”.On page 23, the second paragraph continuing to the top of page 24, delete third sentence in the paragraph starting with “Through the partnership, IUE-CWA” and ending with “savings at the workplace.41”On page 24, delete footnote 42. On page 24, last paragraph, third sentence, delete “as well (see, for example, a reference to such corporation, GridScape, in Section 4.2, above),”.On page 25, footnote 43, after the sentence ending with “received a grant from Wells Fargo.” insert:See Clean Coalition’s website page 26, delete footnote 46.On page 27, first paragraph in footnote text, before “Attachment to the Notice of Intent” insert:48On page 34, first paragraph continuing from page 33, delete the last sentence starting with “We have also noted that the latest version” and ending with “represent residential ratepayers” in its entirety.2. Oral argument on the rehearing of D.18-11-010 is denied.3.Rehearing of D.18-11-010, as modified, is hereby denied.4.The proceeding, R.15-02-020, remains open.This order is effective today.Dated September 24, 2020 at San Francisco, California.MARYBEL BATJER PresidentLIANE M. RANDOLPHMARTHA GUZMAN ACEVESCLIFFORD RECHTSCHAFFENGENEVIEVE SHIROMA Commissioners ................
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