146 So. 3d 1143
Fla.2014Background
- FPL filed on March 19, 2012 for a permanent base-rate increase ($516.5M) and GBRAs tied to modernization projects; MFRs and testimony were submitted and extensive discovery occurred. Citizens (Office of Public Counsel) intervened and opposed the increases, filing expert testimony supporting rate reductions.
- FPL negotiated a non‑unanimous settlement with FIPUG, SFHHA, and FEA reducing the requested revenue increase (ultimately to $350M), setting a 10.5% ROE midpoint, providing GBRAs for Cape Canaveral, Riviera Beach, and Port Everglades, an amortization of fossil dismantlement reserves, postponement of certain studies, and an asset-optimization gain-sharing mechanism.
- The Commission denied an early suspension of the hearing schedule, held full evidentiary hearings on the initial petition, later found five new disputed issues raised by the settlement, and held additional evidentiary hearings limited to those issues before approving a modified settlement on January 14, 2013.
- Citizens appealed, arguing (1) the Commission lacked authority to approve a non‑unanimous settlement over OPC’s objection, (2) procedural/due‑process violations from an allegedly rushed settlement track and absent MFRs/test‑year materials for settlement elements, and (3) the settlement lacked competent, substantial evidence to support its findings.
- The Florida Supreme Court reviewed under the deferential standard for Commission orders and affirmed: (a) the Commission may approve a non‑unanimous settlement over OPC objection; (b) Citizens received adequate notice and opportunity to be heard; and (c) the settlement terms were supported by competent, substantial evidence and in the public interest.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority to approve non‑unanimous settlement over OPC objection | OPC (Citizens) argued section 350.0611 and Mayo/Jaber require that OPC can block such settlements or require more process | Commission and appellees argued statute and precedent permit the Commission to approve settlements and that OPC was not precluded from full participation | Court: Commission empowered to approve non‑unanimous settlements; OPC’s objection does not bar Commission action |
| Due process / rushed procedural track for settlement elements not in initial filing | Citizens argued new substantive elements (GBRAs, amortizations, policy changes) required new filing, MFRs, and violated APA notice/hearing requirements | Commission pointed to multiple hearings, discovery, written orders giving >14 days notice for evidentiary hearing on settlement issues, and prior case law permitting settlement consideration | Court: No due process violation; adequate notice and opportunity to be heard were provided |
| Requirement to file new rate petition or MFRs for GBRAs added by settlement | Citizens said GBRAs for Riviera/Port Everglades were outside petition scope and required new MFR/test‑year notification | Commission relied on precedent and the settlement’s limited-term, need determinations, and safeguards tying GBRAs to approved need costs and ROE midpoint | Court: Not required here; GBRAs could be approved as part of the settlement given procedural protections and analogous prior settlement treatment |
| Substantial evidence supporting specific settlement terms (ROE, rate increase, GBRAs, amortization, postponements, gain‑sharing) | Citizens claimed the ROE and many concessions produced unfair/unreasonable rates and lacked competent evidence; some provisions benefited narrow interests | Commission and signatory witnesses presented testimony on customer bill impacts, reliability, need determinations, financial necessity, sharing mechanisms, and limits/controls (pilot, review after two years, caps) | Court: Commission’s findings are supported by competent, substantial evidence; settlement as a whole is in the public interest and rates are fair, just, reasonable |
Key Cases Cited
- Citizens v. Mayo, 333 So. 2d 1 (Fla. 1976) (procedural fairness concerns when OPC is precluded from meaningful participation)
- South Florida Hospital & Healthcare Ass'n v. Jaber, 887 So. 2d 1210 (Fla. 2004) (approval of non‑unanimous settlement without full evidentiary hearing can be permissible when parties had opportunity to be heard)
- Southern Alliance for Clean Energy v. Graham, 113 So. 3d 742 (Fla. 2013) (deference to Commission findings and standard of review)
- West Florida Electric Cooperative Ass'n v. Jacobs, 887 So. 2d 1200 (Fla. 2004) (presumption of validity and reasonableness of Commission orders)
- AmeriSteel Corp. v. Clark, 691 So. 2d 473 (Fla. 1997) (no statutory requirement that negotiating utilities publish the substance of negotiations; due process preserved if parties can seek hearing and conduct discovery)
- United Tel. Co. v. Mayo, 345 So. 2d 648 (Fla. 1977) (commission’s prerogative to evaluate competing expert testimony on rate of return)