Power v. Washington Water Power Co., 48413-9

• Decision Date: 26 July 1984
• Docket Number: No. 48413-9,48413-9
• Parties: POWER, a Washington Non-Profit Corporation, Appellant, v. The WASHINGTON WATER POWER COMPANY, a Washington Corporation, and a regulated private electric, natural gas, and water utility, Respondent.
• Court: Washington Supreme Court

Page 260

102 Wn.2d 260

684 P.2d 716

POWER, a Washington Non-Profit Corporation, Appellant, v. The WASHINGTON WATER POWER COMPANY, a Washington

Corporation, and a regulated private electric,

natural gas, and water utility, Respondent.

No. 48413-9.

Supreme Court of Washington,

En Banc.

July 26, 1984.

James Bamberger, Spokane, for appellant.

Paine, Hamblen, Coffin & Brooke, David Meyer, Spokane, for respondent.

Paul Cornelius, Spokane, Kenneth Reeves, National Consumer Law Center, Inc., Boston, Mass., amicus curiae for appellant National Consumer Law Center.

DOLLIVER, Justice.

Upon reconsideration of POWER v. Washington Water Power Co., 99 Wash.2d 289, 662 P.2d 374 (1983), we affirm with the following modifications.

The majority in POWER erroneously determined that POWER did not employ expert witnesses or technical consultants. POWER in fact did hire several experts. Although these witnesses did not testify, they were used to assist in the preparation of both the technical aspects of cause U-80-13 (Washington Utilities and Transportation Commission v. The Washington Water Power Company) before the Washington Utilities and Transportation Commission (WUTC) and the cross examination of the witnesses of respondent Washington Water Power Company (WWP). Statements to the opposite effect should be deleted. 99 Wash.2d at 291, 296, 297, 662 P.2d 374.

In 99 Wash.2d at 295, 662 P.2d 374, the first sentence of the second full paragraph should read: "To meet the requirements of PURPA, public counsel must be: (1) independent of the State's regulatory authority ..." The original sentence was incorrectly worded "statute's".

On reconsideration, POWER does not challenge our conclusion that a special assistant attorney general has the statutory authority to hire expert witnesses and outside consultants. POWER, 99 Wash.2d at 292-96, 662 P.2d 374; RCW 43.10.080 and RCW 80.20.020. Rather, POWER argues Special Assistant Attorney General (SAAG) Ericson, in this particular case, did not adequately provide "alternative means" for assuring representation of utility consumers. Additionally, POWER states it substantially contributed to regulatory hearing cause U-80-13 and did not merely duplicate efforts of public counsel.

Under 16 U.S.C. § 2632(a) (see Public Utility Regulatory Policies Act of 1978 (PURPA), 16 U.S.C. §§ 2601-45 (Supp.4, 1980)), if there are no alternative means for assuring representation of electric consumers, utilities are required to compensate consumers who substantially contribute to partial or total approval of a position advocated by such consumer. Although several experts were employed by POWER, there is no verifiable evidence that any position adopted by the Commission was substantially contributed to by POWER's efforts. See Re S. Cal. Edison Co., 45 Pub.Util.Rep. 4th 217 (1981) (procedural mechanism adopted in California to determine whether a consumer has substantially contributed, in whole or in part, to an adopted PURPA position). Moreover, in cause U-80-13, the record before the court indicates SAAG Ericson and POWER advocated congruous positions. POWER, 99 Wash.2d at 297, 662 P.2d 374.

The California Public Utilities Commission, in seeking to prevent a participant from duplicating positions taken by staff or other parties (45 Pub.Util.Rep. 4th at 231), excludes "compensation merely for creative or meritorious efforts", 45 Pub.Util.Rep. 4th at 219, and "for participants whose position is viewed sympathetically, but not adopted." 45 Pub.Util.Rep. 4th at 233. We concur with these views. Consumers who intervene should receive compensation for attorney fees and costs when there are no alternative means and their efforts have substantially contributed to a PURPA proceeding in accordance with 16 U.S.C. § 2632(a)(1). When there is no substantial contribution to an actual commission decision or order, however, ratepayers' money--which provides the funds for alternative representation--should not and may not be expended.

Upon reconsideration, we again hold SAAG Ericson, in this particular case, provided an alternative means of representation for electric consumers. No new information has come to us to change our view expressed in POWER v. Washington Water Power Co., supra that adequate representation for consumers was given either by the commission staff or by the SAAG. As to POWER's contributions to the hearings before the WUTC, while they may be regarded as helpful, there is nothing in the record to indicate they rise to the level of a substantial contribution required by statute.

Affirmed.

UTTER, BRACHTENBACH, DIMMICK and PEARSON, JJ., concur.

ROSELLINI, Justice (dissenting).

Once again, this case comes before this court--and, once again, a majority of its members ignore the clear intent contained in the alternative means requirement of 16 U.S.C. § 2632(b) (Supp.4, 1980). The majority thus denies a consumer group, whose actions "substantially contributed to the outcome in this proceeding", their rightful fees. With this result, I disagreed in POWER v. Washington Water Power Co., 99 Wash.2d 289, 662 P.2d 374 (1983) (POWER I) and, with this result, I disagree now.

Although I do not intend to repeat my entire dissent in POWER I here, I must point out the two areas in which I disagree with the majority.

First, in POWER I, this court recognized the importance of expert witnesses and concluded that, generally, special assistant attorneys general have authority to hire expert...