Florida Supreme Court approves utility-backed solar amendment

The Florida Supreme Court on March 31 approved placement on the November 2016 ballot for the utility-backed petition sponsored by Consumers for Smart Solar that says property owners have the right to install rooftop solar, but should not have this practice “subsidized” by other ratepayers.

The Supreme Court ruling was a majority opinion that included a dissent.

The ballot measure was opposed by Floridians for Solar Choice, who derided the proposal as “sham solar.”

The issue of the financial rights and obligations of property owners who install distributed generation, relative to other ratepayers who don’t go this route, is one of increasing debate in various states.

In its decision, the Florida high court said that the amendment from the Smart Solar organization satisfies the state’s “single-subject requirement” other key criteria.

In November the Florida attorney general’s office asked the state Supreme Court for an opinion on the validity of a petition by Consumers for Smart Solar. The court agreed to consider the matter.

The Smart Solar measure was supported in briefs submitted by groups such as Duke Energy (NYSE:DUK) utility Duke Energy Florida, NextEra (NYSE:NEE) utility Florida Power and Light (FPL), TECO Energy (NYSE:TE) Tampa Electric and Southern (NYSE:SO) affiliate Gulf Power as well as the Florida Electric Cooperatives Association.

Floridians for Solar Choice submitted a brief in opposition as did the Florida Solar Energy Industries Association and other organizations.

The Smart Solar proposed amendment would stipulate that electric consumers “have the right to own or lease solar equipment installed on their property to generate electricity for their own use.”

But the Smart Solar proposal also said that state and local governments retain their ability to regulate the home solar business “and to ensure that consumers who do not choose to install solar are not required to subsidize the costs of backup power and electric grid access to those who do.”

A November 2015 financial impact statement filed with the attorney general’s office concluded that the amendment should not “increase or decrease” government revenues.

The Florida Supreme Court has traditionally been deferential in reviewing citizen petitions and is generally “reluctant to interfere,” the court said.

One exception to this approach is when a citizen petition does not keep to a single-subject and attempts to alter or perform the functions of “multiple acts of government.”

“We conclude that the initiative has a logical and natural oneness of purpose,” the Supreme Court said.

“Combining a constitutional right with the government’s authority to regulate that right represents two sides of the same coin, and we have approved ballot initiatives that similarly have created constitutional rights and allowed the government to regulate the right,” the Supreme Court said.

Neither the ballot title nor the summary misleads the public by suggesting that the amendment is necessary for consumers to be able to own or lease solar equipment installed on their property to generate electricity for their own use.

“The opponents assert that the ballot title and summary contain misleading terms, some of which purportedly constitute political or emotional rhetoric,” the Supreme Court said.

“However, when read within the full context of the ballot title and summary, none of the terms contained within the ballot title and summary are misleading and none of the terms constitute political or emotional rhetoric,” the Supreme Court said.

Dissenting opinion says ruling protects the status quo

A minority dissent by Justice Barbara Pariente said that pro-solar consumers should be wary of the decision.

“Masquerading as a pro-solar energy initiative, this proposed constitutional amendment, supported by some of Florida’s major investor-owned electric utility companies, actually seeks to constitutionalize the status quo,” Pariente wrote in the dissent, which was joined by two other two other members of the court.

The biggest problem with the utility-backed Smart Solar proposal is “what it does not say,” according to the dissent. “What the ballot summary does not say is that there is already a right to use solar equipment for individual use afforded by the Florida Constitution and existing Florida statutes and regulations,” according to the dissent.

The dissent also questions the ballot measure’s use of the term “subsidize.” It “suggests that consumers who use solar energy necessarily impose a financial burden on non-solar consumers and implies that this undesirable consequence of the right to own or lease solar equipment must be remedied through the proposed amendment,” according to the dissenting opinion.

The case is the Advisory Opinion to the Attorney General, Re: Rights of Electricity Consumers regarding Solar Energy Choice; No. SC15-2150; and No. SC16-12.

About Wayne Barber 4201 Articles
Wayne Barber, Chief Analyst for the GenerationHub, has been covering power generation, energy and natural resources issues at national publications for more than 20 years. Prior to joining PennWell he was editor of Generation Markets Week at SNL Financial for nine years. He has also worked as a business journalist at both McGraw-Hill and Financial Times Energy. Wayne also worked as a newspaper reporter for several years. During his career has visited nuclear reactors and coal mines as well as coal and natural gas power plants. Wayne can be reached at wayneb@pennwell.com.