ANNALS OF DeSANTISTAN: Editorial: Justices rightly hold utility regulators to account (Orlando Sentinel & South Florida Sun Sentinel, October 4, 2023)

xxxxxxx 

When a parent tells a child, “Because I say so,” there’s no avenue of appeal. A state agency needs to provide a better explanation than that.

“Because we say so” was essentially how the Public Service Commission justified its 2021 approval of a settlement resulting in $1.25 billion so far in electric rate increases for Florida Power & Light, the state’s largest utility.

Not so fast, the Florida Supreme Court said. In a significant if temporary victory for ratepayers, the court has sent the issue back to the PSC with orders to explain its reasons in detail for awarding FP&L the largest rate increase ever, potentially totaling $4.9 billion.

The decision has lasting benefit for the public if it sets a new benchmark for the court to strictly consider rather than rubber-stamp future decisions by the PSC and other regulatory agencies.

‘Fair and just’? No

By a 4-2 vote, the court said the PSC “has not supplied a basis for meaningful judicial review” of its approval of the controversial settlement as “fair, just and reasonable.”

With 60 witnesses, 635 exhibits and a record of more than 70,000 pages, the PSC devoted “little more than a page” to “conclusory statements” rather than “the reasoned explanation required for our review,” the opinion said.

It’s not enough, wrote Justice John Couriel, “to point to the pile of paper memorializing these proceedings and say, ‘It’s in there.’ Instead, the Commission must do the job with which the Legislature has tasked it by showing, in its final order, how the paper in that pile supports its decision.”

That shouldn’t have been a complete surprise to either the PSC or FP&L. On similar grounds in a still-pending case, the court last year ordered the PSC to elaborate on a decision authorizing a disputed Duke Energy Florida solar energy filing.

FP&L customers can’t count their refunds yet. The court did not throw out the settlement, so the PSC’s eventual explanation could satisfy the court and confirm the rate hike.

The decision was won by a coalition of public interest groups including Floridians Against Increased Rates, Florida Rising, the Environmental Confederation of Southwest Florida and the League of United Latin American Citizens of Florida.

The decision was also an implied rebuke for the Legislature’s Office of Public Counsel, which had endorsed the settlement of FP&L’s original $6.2 billion request.

The Public Counsel is supposed to be an ally of consumers, not utilities, but its mission was compromised when the Legislature contrived a term limit to dislodge Public Counsel J. R. Kelly, who had run the office capably since 2007. Lawmakers replaced Kelly with Richard Gentry, a veteran lobbyist with no regulatory experience and an indirect connection to FP&L, which was known to be preparing the mammoth rate increase (Gentry resigned after the settlement went through).

Mountains of campaign money

At the time, FP&L, its parent company and affiliates were in the process of making more than $5.1 million in political contributions during the 2020 election cycle, according to the Energy and Policy Institute. Most of the money went to the Republican Party and GOP candidates.

The Legislature’s value to powerful utilities lies in its control not only of the Public Counsel but of the PSC itself. A nominating panel whose members are appointed by the Legislature selects finalists for the governor to appoint to the PSC in a state where the Legislature is virtually an arm of utility industries.

When Charlie Crist was governor, the nominating commission purged four of his PSC appointees after they turned down the then-largest electric rate hike in state history.

A rare split on the court

In another possibly significant aspect, last week’s decision revealed division among the dominant conservatives with whom Gov. Ron DeSantis has remade the court.

The justices supporting Couriel’s opinion were Carlos Muñiz, Jamie Grosshans and Jorge Labarga, while Renatha Francis and Charles Canady dissented. DeSantis appointed Couriel, Muَñiz, Grosshans and Francis. Canady is a conservative appointee of Crist, who also appointed Labarga, the court’s lone moderate and frequent dissenter.

The newest justice, Meredith Sasso, did not participate because the case was argued before her appointment.

The dissenters argued that nothing in the law entitles the court to require a fuller explanation and that the decision was inconsistent with a “presumption of correctness” usually accorded to PSC orders.

Quoting precedent, Couriel acknowledged that PSC decisions arrive at the court “’with the presumption that they are reasonable and just.’” Even so, he said, the PSC’s decisions must be “reasonably explained.”

it’s worth noting that this decision represents a cross-section of the tangled conflicts of interest that marks many of DeSantis’ appointments: Francis was an attorney with Shutts & Bowen, a law firm representing FP&L in the case, before her first judicial appointment to the Miami-Dade County Court in 2017. Arguing the case for FP&L was the firm’s managing Tallahassee partner, Daniel Nordby, a member of the Supreme Court Judicial Nominating commission that twice recommended Francis and nominated Couriel, Muñiz, Grosshans and Sasso.

Even so, this court took a stand against the worst excesses of Florida’s increasingly oligarchic, cronyistic government. It’s a small ray of hope in a darkening political landscape.

The Orlando Sentinel Editorial Board includes Editor-in-Chief Julie Anderson, Opinion Editor Krys Fluker and Viewpoints Editor Jay Reddick. The Sun Sentinel Editorial Board consists of Editorial Page Editor Steve Bousquet, Deputy Editorial Page Editor Dan Sweeney, editorial writer Martin Dyckman and Anderson. Send letters to insight@orlandosentinel.com.