TALLAHASSEE — The Florida Supreme Court has upheld the Public Service Commission’s approval of storm protection plans proposed by four major electric utilities, aimed at strengthening the state’s power grid against extreme weather events.
The decision affirms the commission's interpretation of a 2019 statute mandating utilities to enhance grid resilience, a program that allows partial cost recovery from customers.
The case arose from objections by the Office of Public Counsel (OPC), which represents Florida’s consumers, according to the Nov. 14 Florida Supreme Court opinion.
The OPC argued that the PSC misinterpreted the statute by failing to conduct a detailed cost-benefit analysis of the proposals and excluding portions of expert testimony that could have influenced the Commission’s decision.
The SPP statute, enacted in 2019, requires utilities to submit 10-year plans outlining measures such as hardening overhead lines, undergrounding power distribution, and vegetation management.
The goal is to reduce outages, lower restoration costs and improve response times during hurricanes and other severe weather events.
Utilities including Florida Power & Light (FPL), Duke Energy Florida (DEF), Tampa Electric Company (TECO), and Florida Public Utilities Company (FPUC) filed their first plans in 2020, which were initially approved following settlements. The 2022 proposals for the 2023–2032 period were reviewed under the same framework.
The Florida Supreme Court ruled that the PSC acted within its authority and appropriately evaluated whether the plans served the public interest, as required by law.
The court determined that the statute does not necessitate a "prudence review" at the planning stage, which would involve a detailed financial comparison of costs and benefits. Instead, such analysis is reserved for later proceedings when utilities seek to recover costs.
“The statute separates the evaluation of public interest from cost recovery considerations,” the court noted. Judge John D. Couriel wrote that the PSC followed the statutory guidelines by assessing whether the proposals met resilience objectives and provided sufficient qualitative and quantitative data.
The OPC criticized the approval process, claiming the lack of comprehensive cost-benefit analyses undermined transparency and accountability.
For instance, it argued that utilities like FPL and FPUC failed to quantify the projected reductions in outage times and restoration costs. However, the utilities countered that the statute only requires estimated costs and benefits at this stage, with more detailed scrutiny occurring during cost recovery reviews.
The court sided with the utilities, affirming that the PSC's approval process aligns with legislative intent and allows utilities to proceed with storm hardening without fear of retrospective penalties.
While the approved plans promise enhanced grid resilience, Florida residents will bear some of the costs through separate charges on their utility bills. Estimated benefits include shorter outages and lower restoration costs during future storms.
For instance, DEF’s plan is projected to save $50 million annually in restoration costs and reduce customer interruptions by 400 million minutes each year.
"It was no procedural error to exclude Kollen’s legal opinion testimony," Couriel wrote. "Indeed, where Kollen’s testimony did not constitute improper legal opinion, or was relevant to his expertise as an economist, it was admitted."
Couriel wrote that the record contains Kollen’s testimony regarding the SPPs’ effects on customer rates, their costs compared to the benefits of certain programs, and his opinion on utilities’ decision criteria.
Deputy Public Counsel Charles J. Rehwinkel and Associate Public Counsels Mary A. Wessling, Patricia A. Christensen, Danijela Janjic and Octavio Simoes-Ponce of the Office of Public Counsel on behalf of The Florida Legislature are representing the appellant.
Keith C. Hetrick, Samantha M. Cibula, and Susan Sapoznikoff, Jonathan H. Rubottom represented Florida Public Service Commission.
Dianne M. Triplett and Matthew R. Bernier of Duke Energy Florida; Michael P. Silver and Alyssa L. Cory of Shutts & Bowen LLP; and Daniel E. Nordby of Shutts & Bowen LLP represented Duke Energy Florida.
C. Alan Lawson, Paul C. Huck Jr., Jason Gonzalez and Amber Stoner Nunnally of Lawson Huck Gonzalez PLLC represented Florida Power & Light Company.
Lauren V. Purdy, Beth Keating and Jounice L. Nealy Brown of Gunster, Yoakley & Stewart represented Florida Public Utilities Co.
J. Jeffry Wahlen, Malcolm N. Means and Virginia Ponder of Ausley McMullen represented Tampa Electric Company.
The attorneys did not respond to requests for comment.
Florida Supreme Court case numbers: SC2022-1733, SC2022-1735, SC2022-1745, SC2022-1748, SC2022-1777