Solar Goes Nuclear

Lawsuits over our rights to have solar energy?  Surprised?   We are not given the battles we've reported on between consumers, states, utilities as to how quickly renewables come on line.

Luckily, we've done stories on great utility companies--including Duke and Green Mountain Power--that are investing heavily in clean energy and embracing all of the new technologies.  Here in FL, though, we see a different story.  Yes, the crux of the fight surrounds language of a state constitutional amendment preventing discrimination against solar energy,   But behind that, we are certain, is an on-going battle over energy customers pushing to get more control over their energy future.

Pushing a state amendment seems a gross over reaction, but taking on, in any state, a government-approved monopoly is not easy.  Our changing economy demands that we integrate every available clean technology, even if we need to bypass, with micro-grids, wifi electricity, etc, traditional grids.  They can no longer dictate or stand in the way of our march to local, dependable, resilient power systems.  

Solar Goes Nuclear In The Sunshine State

by William Pentland

The showdown over solar power in the Sunshine State is escalating into a constitutional crisis. Floridians for Solar Choice (FLSC), a solar advocacy organization based in Fort Lauderdale, has sponsored a ballot proposal that would amend the state’s constitution to prevent discrimination against solar power technologies.

Four investor-owned utilities and Florida’s attorney general asked the state’s Supreme Court to invalidate the ballot proposal for lack of clarity even if enough voters endorse the measure to put it on the November 2016 ballot. The utilities involved include Florida Power & Light (FPL), Duke Energy DUK +1.03%, Tampa Electric and Gulf Power.

In a statement about the utilities’ legal challenge to the ballot proposal, FPL said that “the proposed amendment fails in several respects to meet basic standards that are intended to protect voters from being misled or confused. Indeed, the amendment’s language is largely unclear, but one thing is certain: It would amount to an unprecedented constitutional ban on consumer protection.”

The utility’s rhetoric is arguably more confusing and potentially misleading than the ballot proposal. It reminds me of something H.L. Mencken said about U.S. President Warren Harding’s writing: “It is rumble and bumble. It is flap and doodle. It is balder and dash.”

In the vast majority of states, trying to amend the constitution to protect solar power from anti-competitive utility practices would seem like lunacy. A constitutional amendment is a very big deal.

In most states, you don’t need to change the constitution to protect solar power from anti-competitive practices and unfair discrimination. Most problems can be solved by complaining to utility regulators.

Some complaints may take longer to fix than others, but sooner or later the squeaky wheel gets what the squeaky wheel what it wants.

Florida is one of the rare exceptions to this rule.

In 2009, David Cruthirds, the author of the Cruthirds Report, described utility politics in Florida like so:

I don’t know why anyone would be surprised if FPL did receive relatively favorable treatment by the [Florida] PSC . . . I’ve been around the process for a long time and have personally witnessed hundreds of expensive dinners, golf outings and other socializing between regulated utilities and regulators . . . Only the naive could conclude the utilities’ efforts aren’t carefully designed and orchestrated to incur favor with regulators – and only the naive could conclude the utilities’ efforts aren’t successful to a certain degree. The exact degree of influence and who is actually being influenced can’t really be known. But there can be little doubt the utilities are successful on occasion.

In Florida, the utilities appear to have captured their regulators decisively. This brings me back to Mencken. It strikes me as deeply disingenuous for FPL to describe the solar amendment as a “constitutional ban on consumer protection.” As far as I can tell, the strongest argument in favor or the solar amendment is that utility regulators – and elected politicians – have systematically denied consumers any opportunity to participate in the democratic process.

State governments have given utilities the mother of all privileges: a legal monopoly. In most states, investor-owned electric utilities have exclusive rights on the distribution and sale of electricity within specific geographic areas. They are state-sanctioned monopolies.

Utilities can raise rates or reduce the quality of customer service without worrying about losing market share to competitors. Preventing such abuse is why state laws have given utility regulators – usually called the Public Utility or Service Commissions – enormous authority over how utilities run their businesses. Regulators say what utilities can do and what they cannot do. In particular, regulators determine what rates utilities can charge their customers.

State utility regulators are supposed to keep monopolies honest. To counteract the influence of utilities, many states have also established public advocates to ensure consumers are represented in matters before the state commissions. The Office of the Public Counsel “was created with the realization that the citizens of the state cannot adequately represent themselves in utility matters, and that the rate-setting function of the [Public Service] Commission is best performed when those who will pay utility rates are represented in an adversary proceeding by counsel at least as skilled as counsel for the utility company,” according to the state Supreme Court.

In recent years, the Office of Public Counsel has been regularly excluded by the Public Service Commission (PSC) from participating in vital negotiations between utilities and regulators. In 2012, the PSC approved a $350 million rate case with FPL based on a settlement that was reached without the input of the Public Counsel.

Public Counsel J.R. Kelly had opposed the rate increase, saying that FPL’s financial projections indicate that rates should be reduced not increased.

Last year, the Florida Supreme Court rules that the PSC could exclude the Public Counsel from settlement agreements.

“[Public Counsel’s] argument regarding the sufficiency of the Commission’s findings in the final order is also without merit because, although it may be the better practice, the Commission is not required by statute or case law to address each issue of disputed fact in its final order,” according to the Supreme Court’s decision.

I don’t think utility regulators in any state are “required” to by state law to consider the views of consumer advocates, but Florida is the only state I’m aware of where the regulators have actually excluded the consumer advocate. If regulators excluded the state-appointed consumer advocates in New York, California or Massachusetts, they would incite a revolution. That helps explain why the Floridians for Solar Choice are supporting a constitutional amendment to protect solar power. They have no alternative.