PANDA ENERGY INTERN. v. Jacobs

813 So. 2d 46, 2002 WL 243076
CourtSupreme Court of Florida
DecidedFebruary 21, 2002
DocketSC01-284
StatusPublished
Cited by1 cases

This text of 813 So. 2d 46 (PANDA ENERGY INTERN. v. Jacobs) 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
PANDA ENERGY INTERN. v. Jacobs, 813 So. 2d 46, 2002 WL 243076 (Fla. 2002).

Opinion

813 So.2d 46 (2002)

PANDA ENERGY INTERNATIONAL, Appellant/Cross-Appellee,
v.
E. Leon JACOBS, Jr., et al. as the Florida Public Service Commission, Appellees/Cross-Appellants.

No. SC01-284.

Supreme Court of Florida.

February 21, 2002.

*48 Suzanne Brownless, Tallahassee, FL, for Appellant/Cross-Appellee.

Harold McLean, General Counsel, and Richard C. Bellak, Associate General Counsel, Florida Public Service Commission, Tallahassee, FL; and Robert A. Glenn, Director, Regulatory Group Counsel, Florida Power Corporation, St. Petersburg, FL, and Gary L. Sasso, James Michael Walls, and Jill H. Bowman of Carlton Fields, St. Petersburg, FL, for Appellees/Cross-Appellants.

PER CURIAM.

We have on appeal a decision of the Florida Public Service Commission ("PSC") relating to its order granting a determination of need to Florida Power Corporation ("FPC") for the construction of a 530-megawatt electrical power plant. We have jurisdiction. See art. V, § 3(b)(2), Fla. Const. For the reasons that follow, we affirm the PSC's order.

BACKGROUND

Panda Energy International, Inc. ("Panda") challenges the PSC's order granting a determination of need for a 530-megawatt electrical power plant that FPC proposes to build in Polk County, Florida, referred to as the "Hines 2" power plant. Panda raises the following issues before this Court: (1) whether the PSC abused its discretion in limiting Panda's opportunity to conduct discovery and in denying Panda's motion for a continuance after the PSC granted Panda intervenor status; (2) whether the PSC applied an incorrect standard in determining the need for the Hines 2 power plant based on this Court's decision in Tampa Electric Co. v. Garcia, 767 So.2d 428 (Fla.2000); and (3) whether the PSC's finding that FPC's bidding process complied with Florida Administrative Code Rule 25-22.082 is supported by competent substantial evidence.

Before seeking regulatory approval to build Hines 2, FPC engaged in an analysis of its need, and determined that the Hines 2 power plant presented the most cost-effective option. After completing this internal review, FPC issued a request for proposals ("RFP"), inviting independent power producers and others to offer superior alternatives to Hines 2. Ultimately, thirteen bidders (not including FPC) gave notice of their intent to submit a bid. *49 However, when the time came to actually submit a bid, only two bidders—including Panda—submitted bids on the project.

FPC ultimately rejected Panda's proposal based on its determination that both bids submitted in the RFP process were inferior to FPC's proposed alternative that it could build itself (the "self-build" alternative).[1] Although Panda's proposal was the next most cost-effective proposal to FPC's self-build alternative, FPC concluded that Panda's proposal would have cost FPC's ratepayers over $60 million more than its Hines 2 plant, even accepting the most favorable assumptions regarding what generating resources FPC could hope to obtain when the Panda contract expired.

On August 7, 2000, FPC filed its petition for determination of need with the PSC, pursuant to section 403.519, Florida Statutes (2000), seeking approval to build Hines 2. The PSC rendered its final order granting FPC's determination of need on January 5, 2001. The PSC found "that Florida Power Corporation has a need for additional capacity to maintain the reliability and integrity of its system." The PSC also found the "Hines Unit 2 to be the most cost-effective alternative over the 25 years during which FPC's ratepayers will be obligated for the costs of the unit." The PSC recognized that "the entire Hines 2 plant will count toward FPC's reserve margin" and that the parties had stipulated that the unit "will be fully committed to helping FPC meet its obligation to provide reliable electric service to ratepayers at a reasonable cost." Moreover, the PSC found that FPC fully complied with the PSC's bid rule.

DISCUSSION

1. Limitation on Discovery and Denial of Continuance

In Panda's first claim on appeal, it asserts that the PSC denied it due process as an intervenor by limiting its opportunity to participate in discovery and by denying its request for a continuance in FPC's need determination proceeding. Limitations on discovery and denials of continuances are reviewed for an abuse of discretion. See MCR Funding v. CMG Funding Corp., 771 So.2d 32, 36 (Fla. 4th DCA 2000); Thompson v. Deane, 703 So.2d 1215, 1216 (Fla. 5th DCA 1997); Manasota-88, Inc. v. Agrico Chem. Co., 576 So.2d 781, 782-83 (Fla. 2d DCA 1991) (holding no abuse of discretion in denying intervenor a continuance).

On August 7, 2000, FPC filed its petition for determination of need for the Hines 2 power plant. The PSC appointed a prehearing officer who, in turn, issued a scheduling order on August 30, 2000.[2]*50 The order set the case for final hearing on October 26-27, 2000. The order further provided that any intervenors had until September 11, 2000, to file their prefiled testimony, the PSC staff had until September 18, 2000, to file their prefiled testimony, and FPC then had until September 25, 2000, to file any rebuttal testimony. The order required all parties to file prehearing statements by October 4, 2000, and the prehearing officer to conduct a prehearing conference on October 11, 2000. The order set October 19, 2000, as the cutoff date for all discovery.

Pursuant to this schedule, the PSC staff served interrogatories and document requests upon FPC and conducted depositions. The PSC staff filed prefiled testimony and FPC filed rebuttal testimony. FPC requested and obtained discovery of the PSC staff, including the deposition of an expert sponsored by the PSC staff. The deadline for filing testimony expired without anyone filing a motion to intervene. Moreover, both FPC and the PSC staff filed their prehearing statements without anyone seeking leave to intervene.

Although Panda attended the prehearing conference on October 11, 2000, it did so as a spectator because it had not filed a motion for leave to intervene. The following day, Panda sought leave to intervene in the need determination.[3] Panda filed the motion to intervene two weeks before the final hearing. Panda asserted that it delayed intervening in the need proceeding because it was waiting for this Court to decide the pending motions for reconsideration in Tampa Electric, which motions the Court denied in light of a revised opinion on September 28, 2000. Panda claimed that because the Tampa Electric decision potentially affected Panda's ability to sell power in Florida, it made the business decision to wait until the Court denied rehearing in Tampa Electric before intervening.

The PSC granted Panda leave to intervene and extended the discovery cutoff through noon of the day before the final hearing in order to permit Panda to take depositions that Panda's counsel stated she wanted. Moreover, FPC allowed Panda to take the deposition of FPC's consultant during the afternoon before the final hearing commenced and provided Panda discovery materials. The prehearing officer also ordered FPC to provide Panda with confidential documents before the hearing, and FPC complied with this order.

Under the facts in this case, we conclude that the PSC did not abuse its discretion in limiting Panda's opportunity to participate in discovery. Florida Administrative Code Rule 25-22.039, which provides for intervention in PSC proceedings, states, "Intervenors take the case as they find it."[4]

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813 So. 2d 46, 2002 WL 243076, Counsel Stack Legal Research, https://law.counselstack.com/opinion/panda-energy-intern-v-jacobs-fla-2002.