FLORIDA – Public Utilities – Contesting Rate Increases

The Supreme Court of Florida has affirmed the Florida Public Service Commission’s decision to provide reimbursement to a public electrical utility company, FPL, through raising base rates for four of its solar energy centers. Nine entities had intervened in FPL’s petition to the Commission for the increase in rates. Several of those joined in a settlement with FPL, but one, FIPUG, did not join in the settlement, and chose not to participate in the evidentiary hearing regarding the settlement. The settlement was then approved by the commission, and FIPUG did not file an appeal. The Commission eventually raised the base rate of FPL’s solar energy projects. FIPUG appealed.

FIPUG asserted three main issues it had with the rate increase. The first argument, that there had been no prudence review, was dispensed with after the Court found that FIPUG had waived its ability to demand such a review, and that even if it had not, a review of the rate increase compared with the public interest revealed that it was not against the public interest to allow the rate increase. The public interest analysis itself also took into consideration the prudence of the rate increase, making a specific prudence review redundant.

FIPUG’s second contention was that the Commission, in finding the rate increase to be cost effective, had relied on uncorroborated hearsay. The Court found that FIPUG has likewise waived its right to assert such a contention, as it had been present at the prehearing voir dire process, and had made only general objections to FPL’s witnesses, rather than to specific witnesses or to specific portions of testimony. Even if FIPUG had not waived its ability to contest the testimony relied upon by the Commission, the Court found persuasive the testimony of FPL’s primary expert witness.

FIPUG’s final argument was specifically provided for and invalidated by the terms of the settlement agreement. The Court ruled that, because FIPUG failed to challenge the settlement agreement at the time it was before the Commission or to appeal it, it would reject the argument as untimely.

While the issues in this case seem fact-intensive and esoteric, they serve as a reminder for litigants not to sit on their rights. While there may be strategic advantages in putting off making an argument, waiting too long might be fatal to your position.

Read the full opinion- Florida Industrial Power Users Group v. Julie Imanuel Brown, __So.2d__ (Fla. June 13, 2019

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