Southern Alliance for Clean Energy v. Graham
113 So. 3d 742
| Fla. | 2013Background
- SACE appeals a Florida PSC order authorizing FPL and PEF to recover preconstruction costs for proposed nuclear plants under §366.93.
- Legislature added §403.519(4)(e) and §366.93(2) in 2006 to enable cost recovery mechanisms for nuclear projects; PSC implemented Rule 25-6.0423.
- PSC determined preconstruction activities creating an option to build can satisfy ‘intent to build’ for cost recovery, despite lack of final construction decision.
- SACE contends the statute unconstitutionally delegates legislative power to the PSC and that the PSC order is arbitrary and not supported by competent substantial evidence.
- Court reviews de novo, presumes constitutionality, and refuses to substitute its policy judgment for the Legislature’s; affirms PSC’s interpretation and order.
- Court notes policy concerns about risk-shifting are legislative concerns, not for judicial reweighing of policy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does §366.93 unconstitutionally delegate legislative power to the PSC? | SACE argues improper delegation of core policy making. | Statute provides standards and guiding principles; agency implements mechanism. | No separation of powers violation; standards exist and agency may administer policy. |
| Is the PSC's finding that utilities demonstrated intent to build supported by competent, substantial evidence? | Preconstruction activities show only an option to build, not intent. | Statute allows phased development; preconstruction can demonstrate intent to build. | PSC construction not clearly erroneous; evidence supports intent to build for cost recovery. |
| Are preconstruction costs recoverable under §366.93 given the PSC’s interpretation? | Statute contemplates recovery of all prudently incurred costs via designated mechanisms. | Affirmed; statute and PSC interpretation support recovery of prudent preconstruction costs. |
Key Cases Cited
- State v. Rife, 789 So.2d 288 (Fla.2001) (constitutional questions reviewed de novo; legislature’s policy decisions deferentially reviewed)
- Florida Gas Transmission Co. v. Pub. Serv. Comm’n, 635 So.2d 941 (Fla.1994) (agency factors and ‘relevant’ determinations upheld under delegation)
- AT & T Communications of the S. States, Inc. v. Marks, 515 So.2d 741 (Fla.1987) (delegation with guiding standards permissible in complex regulatory areas)
- In re Advisory Opinion to the Governor, 509 So.2d 292 (Fla.1987) (legislative delegation allowed where standards are meaningful and actuarially sound)
- Microtel, Inc. v. Florida Public Service Commission, 464 So.2d 1189 (Fla.1985) (expert agency discretion appropriate for complex regulation)
- Crist v. Jaber, 908 So.2d 426 (Fla.2005) (deference to PSC findings; standard of review for factual support)
- Gulf Power Co. v. Fla. Pub. Serv. Comm’n, 453 So.2d 799 (Fla.1984) ( PSC findings entitled to presumption of correctness; deferential review)
- Askew v. Cross Key Waterways, 372 So.2d 913 (Fla.1978) (non-delegation concerns clarified; legislative standards guide agency)
- Fla. Power & Light Co. v. Albert Litter Studios, Inc., 896 So.2d 891 (Fla.3d DCA 2005) (respect for regulatory expertise in rate-making contexts)