The penultimate day of the 2013 legislative session proved one of mixed blessings for both power companies and utility customers, as the Supreme Court unanimously upheld controversial rate hikes, while the Legislature sent to the governor a bill that could prevent some future rate increases.
In a unanimous, unsigned opinion published Thursday morning, the Florida Supreme Court upheld the constitutionality of a 2006 Florida law that grants the state Public Service Commission (PSC) the power to authorize energy companies to "recover" the costs of their nuclear power plant construction through utility bill tax hikes.
The lawsuit had been brought by the Southern Alliance for Clean Energy (SACE), which argued the law was an unconstitutional delegation by the Legislature of its powers to an administrative body, and that guidelines applied by the PSC were unconstitutionally vague.
The court rejected both those arguments.
Subordinate functions like those at issue here may be transferred by the Legislature to permit administration of legislative policy by an agency with the expertise and flexibility needed to deal with complex and fluid conditions, the seven justices of the court declared, citing several precedents. [The law] is not so lacking in guidelines that neither the agency nor the courts can determine whether the agency is carrying out the intent of the Legislature.
The SACE had also argued that even if the 2006 law was constitutional, certain specific PSC rate-hike authorizations were contrary to that law. The PSC has been granting approval to companies engaged in certain preconstruction activities that the SACE alleged only demonstrated an option to build rather than an intent to build, as the language of the statutes require.
The court rejected that argument too, reasoning that actions such as ongoing negotiations, obtaining licenses and approvals necessary to construct and operate power plants, and performing work needed to obtain environmental permits all manifested intents to build new power plants.
Later Thursday, the Florida Senate approved the House-amended version of SB 1472, a bill that in its original incarnation (sponsored by Sen. John Legg, R-Lutz) would have repealed the 2006 law completely. As subsequently amended (by both the House and the Senate), the bill increases the number of regulatory hoops a company has to jump through in order to pass PSC scrutiny and get rate hikes approved, and gives the PSC new authority to halt collection of the approved utility fees if construction is not advancing after 10 years, and again after 20 years.
The bill now moves to Gov. Rick Scott's desk for his approval and signature.
We are extremely disappointed, but not surprised, by todays decision from the court, Stephen Smith, SACE's executive director, said in a statement. Our legal challenge was very difficult with the odds stacked against us. But we knew it had to be done in order to exhaust every option to protect Floridas consumers from this scheme that forces the risk of these extremely expensive new reactor projects to be unfairly shouldered by Floridas families and businesses.
As for SB 1472, Smith warned that the procedural steps added by this bill can only protect customers if the Public Service Commission does its job. We remain concerned that the Commission acts as a captured regulatory entity beholden to the big power companies. We have real concerns that the protections the Legislature envisioned with this bill may not be executed by the current Commission.
Rep. Jose Diaz, R-Miami, an attorney who had sponsored the House version of the bill, told Sunshine State News the fortuitous timing of the court's ruling and Senate passage was probably not coincidental.
It was a timely decision, right in-between the House passing [the bill] and the Senate passing it, he remarked. Sometimes the court doesn't want to make a ruling that will impact the way the Legislature is proceeding, and I think they felt there was momentum in the Legislature and they could make a ruling without impacting what we were doing here.
Reach Eric Giunta at egiunta@sunshinestatenews.com or at (954) 235-9116.
