Douglas Ames

197 Cal. App. 4th 1411; 2011 Cal. App. LEXIS 1019 (July 6, 2011)

The Court of Appeal (Fourth District Division 3) affirmed a Commission decision excluding petitioner’s proposed “thermal energy storage” project from eligibility for customer incentives provided by energy utilities. The Court, citing Greyhound (Para. 68, infra), concluded that the Commission had correctly construed Section 454.5 of the Public Utilities Code. The Court held that while Section 454.5 governs the utility’s development of overall procurement plans, it did not constrain the Commission in any fashion with respect to its approval of specific demand response proposals. The Court also concluded that while there was an “abundance of evidence submitted by Ames demonstrating the merits of thermal energy storage, the Commission was entitled to conclude that questions remained about the desirability of implementing Ames’ proposal- questions which required further analysis before imposing a change in policy.” The Court’s opinion reminds practitioners that there is no fixed outcome under the “substantial evidence” standard of Section 1757(a)(4). (Nor, indeed, has a court or statute ever fixed a general burden of proof in non-adjudicatory matters before the Commission.) (But see, Section 854(e).) Complex proceedings such as that under review in this decision posit myriad outcomes and there is likely more than one that can be deemed to be “supported by substantial evidence in light of the whole record.” The Court initially decided not to publish this decision but subsequently granted the Commission’s request for publication. The Court denied the Commission’s request that a companion decision (related to rate design) be published. Mr. Ames sought review in the California Supreme Court but review was denied.

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