TALLAHASSEE – The Florida Supreme Court on Thursday rejected a challenge to state regulators’ approval of long-term utility plans aimed at bolstering the electric system to better withstand hurricanes.
Justices unanimously upheld decisions that the Florida Public Service Commission made in 2022 to approve what are known as “storm-protection plans” for Florida Power & Light, Duke Energy Florida, Tampa Electric Co. and Florida Public Utilities Co.
Under a 2019 state law law that passed after Hurricane Irma, Hurricane Michael and other storms caused widespread power outages, utilities file 10-year storm-protection plans with the commission and are able to seek money from customers annually to carry out the plans.
The state Office of Public Counsel, which represents consumers in utility issues, went to the Supreme Court after the 2022 approvals. In part, it argued that the commission erred by not considering whether projects included in the utilities’ plans were “prudent” — a common requirement in other types of utility issues.
But the Supreme Court, in a 27-page opinion written by Justice John Couriel, said the commission “correctly reviewed and approved the utilities’ proposals after concluding that they are in the public interest.” It said the issue of prudency of costs is part of a separate process in which utilities seek approval to recover money from customers.
“In summary, the commission’s work when it decides what is in the public interest is different from the work it does when it decides whether a utility acted prudently,” Couriel wrote. “It makes those decisions at different times, considering different statutorily described factors. … The commission is correct that the SPP (storm-protection plan) statute calls for a review of the utilities’ SPPs to determine if they are in the public interest, and not whether the investments they propose are, in the sense in which the term has been used in this carefully drafted statute, prudent.”
In a brief filed last year, the Office of Public Counsel argued justices should overturn approval of the plans and send them back to the commission to consider prudence.
“As these orders stand now, customers are financially obligated for at least the next 10 years, including the future SPP dockets if not remedied here, to pay for storm-hardening projects which may or may not be prudent,” the brief said. “This abdication of the commission’s obligation creates a risk that is harmful to customers and a violation of law, which the court must reverse and remand for further proceedings.”
Before the 2019 law, utilities incorporated such costs in their base electric rates. The storm-protection plans can include such things as putting power lines underground and making improvements to above-ground systems.
Thursday’s opinion came after hurricanes Debby, Helene and Milton this year knocked out power for residents and businesses in many areas of the state. FPL has filed a request at the commission to recover money from customers related to restoring power after the hurricanes, while Duke and Tampa Electric have said in financial reports that they also plan to seek similar recovery of costs.
Those costs are separate from money that utilities can seek to recoup in carrying out the storm-protection plans.
