A battle is playing out at the state Supreme Court about whether customers of Florida Power & Light should pay for an environmental clean-up project in Miami-Dade County.
The Florida Public Service Commission filed a brief Monday urging the Supreme Court to uphold a decision that allows FPL to recover money from customers to deal with a saltwater plume that moved from a 6,000-acre power-plant complex into nearby groundwater.
The state Office of Public Counsel, which represents consumers in utility issues, took the issue to the Supreme Court, arguing that FPL customers should not get hit with the costs, which a court filing says could total $206 million over 10 years. That cost would be spread out among all of FPL’s 4.9 million customers across half of Florida, including all of Flagler County, where FPL provides power to some 54,000 customers.
In the brief Monday, the Public Service Commission said its decision to allow FPL to recover the costs is “reasonable and commonsensical.” It pointed to part of state law that allows electric utilities to pass along costs to consumers for expenses related to environmental regulations — a part of state law known in the utility industry as the environmental cost recovery clause.
The project stems from saltwater moving from a cooling-canal system totaling 168 miles of canals at FPL’s Turkey Point complex into groundwater. FPL in recent years, after acknowledging that it broke the law, entered into agreements with the county and the Florida Department of Environmental Protection to fix the problem, and the Public Service Commission brief said the utility should be able to recover the costs because it is complying with environmental regulations.
“The consent actions (agreements with Miami-Dade County and the Department of Environmental Protection) impose specific new requirements that apply to FPL in relation to its function as an electric utility, including the abatement or remediation of the hypersaline plume,” Monday’s brief said. “The consent actions are environmental regulations pursuant to (the environmental costs recovery law.)
But in a brief filed in May, the Office of Public Counsel described the December decision as requiring customers to “bail out FPL for the decades that the company allowed the hypersaline plume to spread and build up.”
“The money at issue will not pay for ‘compliance’ with laws or regulations designed to protect the environment, but instead will explicitly pay for FPL’s noncompliance because the costs are paying for cleaning up the effects of decades of FPL’s past, unlawful pollution,” the Office of Public Counsel argued.
The brief also stated that the cost-recovery law at hand “authorizes environmental cost recovery by investor-owned electric utilities from customers, and limits recovery to only those costs incurred to comply with environmental laws or regulations. The statute restricts the definition of environmental laws or regulations to provisions which are ‘designed to protect the environment.’ The plain meaning of the term ‘protect’ is to prevent harm or to preserve from injury. As such, the statute generally applies to prospective,
preventive measures, but not to measures taken to reverse or correct illegal environmental harm after a violation has been issued and effectively conceded.”
The Office of Public Counsel is asking the court to order FPL to refund to customers any amounts recovered to date for the Aquifer Repair Project and order customer rates to be reduced accordingly.
The Public Service Commission, which each year considers environmental costs for utilities, voted unanimously Dec. 12 to allow FPL to collect the saltwater-related costs through customer bills. The Office of Public Counsel filed a notice in February that it would appeal to the Supreme Court, which has not indicated when it could hear the case.
In the brief Monday, the commission sought to rebut the arguments by the Office of Public Counsel, saying there “is ample record evidence showing that FPL fully cooperated with its environmental regulators.”
FPL’s website describes the canal system, saying the “5,900-acre manmade cooling canal system offers ideal nesting conditions for the American crocodile. The shy reptiles comfortably settle into numerous small ‘island-like’ land formations known as berms located throughout the system, which offer ideal nesting conditions and a vast supply of food. The canals, located near the crocodiles’ natural coastal habitats, also provide first-rate shelter for the animals.”
The case is Florida Office of Public Counsel v. Public Service Commission, Case Number: SC18-213.
–FlaglerLive and News Service of Florida