Citizens of the State of Florida v. Art Graham, etc.

191 So. 3d 897
CourtSupreme Court of Florida
DecidedMay 19, 2016
DocketSC15-95, SC15-113, SC15-115, SC15-274
StatusPublished
Cited by5 cases

This text of 191 So. 3d 897 (Citizens of the State of Florida v. Art Graham, etc.) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Citizens of the State of Florida v. Art Graham, etc., 191 So. 3d 897 (Fla. 2016).

Opinions

POLSTON, J.

This case is before the Court on appeal from three orders of the Florida Public Service Commission (PSC).1 The PSC approved the recovery of Florida Power and Light’s (FPL) costs incurred through its joint venture with an oil and natural gas company to engage in the acquisition, exploration, drilling, and development of nat[899]*899ural gas wells in Oklahoma. The recovery as fuel costs paid by FPL’s customers in its utility rates were considered by the PSC to be a long-term physical hedge. Treating these activities as a hedge requires FPL’s end-user consumers to guarantee the capital. investment and operations of a speculative oil and gas venture without the Florida Legislature’s authority. Accordingly, we reverse.

I. BACKGROUND

Each year, the PSC creates a docket (fuel docket or fuel clause) to review and allow cost-recovery of fuel expenditures as well as to review hedging activities intended to minimize fuel price volatility by Florida’s investor-owned utilities. In 2014, FPL filed its petition seeking cost recovery for its fuel costs, and, in determining the proper amount for which FPL could receive cost recovery, the PSC approved FPL’s hedging activities.

In the 2014 fuel clause proceeding, FPL also filed a petition requesting approval and recovery of a specific gas reserves investment, the Woodford Project. This petition requested a determination that FPL would be eligible to recover, through the fuel clause, its “exploration expense, depletion expense, operating expenses, G & A, taxes, transportation costs and a return on the unrecovered investment, including working capital” for investments in the exploration, drilling, and production of natural gas in the Woodford Shale Gas Region in Oklahoma. The Woodford Project is a joint venture agreement between FPL and PetroQuest, a publically traded independent oil and natural gas company. Pursuant to the agreement, FPL would invest directly in PetroQuest’s shale gas reserves in the Woodford Shale region and in return receive the rights to a share of the physical gas produced.

FPL alleged that it was looking for opportunities to acquire natural gas at production costs (as'an investor), rather than at market prices- (as a purchaser), in order to help insulate customers from the volatility of the gaS market. Specifically, FPL asserted that its ownership interest in the Woodford Project would operate as a long-term physical hedge against the market volatility of natural'gas prices used to provide electric service to FPL’s customers. FPL also asserted that the Woodford Project would benefit its customers by providing natural gas at a lower cost than market prices.

Citizens of the State of Florida, through the Office of Public Counsel, (Citizens), Florida Industrial Power Users Group (FIPUG), and Florida Retail. Federation (FRF) participated as intervenors in the proceedings. - Citizens and the Florida Industrial Power Users Group (FIPUG) .moved to dismiss the Woodford Petition, alleging that the PSC lacked the authority to consider and approve the project. The PSC denied the motion, concluding that it had jurisdiction under its statutory authority to set rates for public utilities.

Thereafter, the PSC heard FPL’s testimony that investment in the Woodford Project would provide fuel savings and price stability, effectively acting as a long-term hedge. The PSC also heard testimony from Appellants that the costs associated with the Woodford Project do not satisfy the criteria for fuel clause recovery and that these projected' costs went beyond PSC policy for dealing with fossil fuel-related costs normally recovered through base rates. Following the two-day eviden-tiary proceeding, the PSC approved the Woodford Project, concluding as follows:

We find the Woodford Project, in the manner described in the FPL petition and evidence on the record, is expected to produce customer benefits and is in the public interest. . We find its costs are recoverable through the Fuel [900]*900Clause. In order to provide additional protections for FPL customers, we find it necessary to add two conditions for compliance with this Order. First, FPL shall add the appropriate subaccounts, under the FERC system of accounting, which will correspond on a one-on-one basis with the accounts used by the Gas Reserve Company (GRCO). Second, FPL shall utilize an independent auditor in performing the audits provided in the agreement and shall work with [PSC] staff to develop the scope of the audits.

II. ANALYSIS

Appellants argue that the PSC lacks the authority to allow FPL to recover the capital investment and operations costs of its partnership in the Woodford gas reserves through the rates it charges consumers. We agree.2

This Court has repeatedly stated that, although “orders of the Commission come before this Court clothed with the statutory presumption that they have been made within the Commission’s jurisdiction and powers, and that they are reasonable and just and such as ought to have been made,” “[s]uch deference ... cannot be accorded when the commission exceeds its authority. At the threshold, we must establish the grant of legislative authority to act since the [Commission derives its power solely from the legislature.” United Tel. Co. of Fla. v. Pub. Serv. Comm’n, 496 So.2d 116, 118 (Fla.1986); see also Sprint-Florida, Inc. v. Jaber, 885 So.2d 286, 290 (Fla.2004). Whether the PSC has the authority to act is a question of law, which is subject to de novo review. See D’Angelo v. Fitzmaurice, 863 So.2d 311, 314 (Fla.2003).

Chapter 366, Florida Statutes (2014), provides the PSC with jurisdiction to regulate and supervise each public utility with respect to its rates and service and to prescribe a rate structure for all electric utilities. § 366,04(l)-(2), Fla. Stat. (2014); Pub. Serv. Comm’n v. Bryson, 569 So.2d 1253, 1254 (Fla.1990) (noting that “[i]n section 366.04(1) ... the [Legislature granted the PSC exclusive jurisdiction over matters respecting the rates- and service of public utilities”). The regulation of public utilities is in the public interest and “an exercise of the police power of the state for the protection of the public welfare and all the provisions [of chapter 366] shall be liberally construed for the accomplishment of that purpose ” § 366.01, Fla. Stat. (2014). The PSC may set rates that are “fair, just, and reasonable.” See § 366.06(1), Fla. Stat. (2014) (“[T]he commission shall have the authority to determine and fix fair, just, and reasonable rates that may be requested, demanded, charged, or collected by any public utility for its service.”); see also § 366.03, Fla. Stat. (2014) (“All rates and charges made, demanded, or received by any public utility ... shall be fair' and reasonable.”); § 366.05(1), Fla. Stat. (2014) (“In the exercise of such jurisdiction, the commission shall have power to prescribe fair and reasonable rates and charges.”). In fixing the fair, just, and reasonable rates charged for service by the “public utilities under its jurisdiction, the commission is authorized to give Consideration, among other'things, to ... the cost of providing such service and the value of such service to the public[.]” § 366.041(1), Fla. Stat. (2014).

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191 So. 3d 897, Counsel Stack Legal Research, https://law.counselstack.com/opinion/citizens-of-the-state-of-florida-v-art-graham-etc-fla-2016.