Court indicates it's divided during arguments over solar amendment
Florida's Supreme Court justices indicated Monday they are divided over whether or not a utility-backed amendment relating to solar energy is misleading and should be thrown off the ballot.
Environmental advocates argued in oral arguments that the proposal by "Consumers for Smart Solar" is unconstitutionally misleading because it lures voters into thinking it will increase access to rooftop solar when in fact it will reduce solar options.
Proponents, however, say the amendment is needed to make the right to install solar panels a constitutional right. They deny the proposal is intended to protect the regulated utilities, who control the current solar market, from competition.
"Any person that wants solar should vote for this amendment,'' said Alvin Davis, attorney for the regulated utilities. He warned that rival companies could come to Florida, sell solar panels, go "back to where ever they came from and, when the panels don't work or when the prices aren't fair, you are stuck with it."
But Bob Nabors, attorney for Floridians for Solar Choice, the solar industry-backed organization that started the solar wars, disagreed.
The proposed amendment -- titled: "Rights of Electricity Consumers Regarding Solar Energy Choice" -- "puts in place the majority of rights that are already here, which creates the false impression to the voter that he's getting something he is not,'' Nabors said. He said the same protections they want enshrined into the Constitution are already allowed in current law.
The utility industry sought the “Smart Solar” amendment as a reaction to an effort by Floridians for Solar Choice to get an amendment on the November ballot that would have prevented legislators and regulators from erecting barriers to solar development. Under their plan, homeowners would be allowed to hire a third-party company to install up to 2 megawatts of solar energy on their homes and businesses and sell it to neighbors, a practice called third-party leasing that is not allowed in current law.
But Florida Power & Light, Duke Energy, Tampa Electric and Gulf Power joined forces to raise $6.98 million to fund a counter-offensive to undermine the "Solar Choice" amendment and create their own amendment -- the Consumers for Smart Solar campaign. The alternative energy group failed to get enough signatures by the Feb. 1 deadline and the measure will not be on the November ballot. The group has announced it will now attempt to put it on the 2018 ballot.
The utilities, however, continued to pursue their counter amendment, arguing it is a needed to protect the access to solar energy.
But on Monday Justices Peggy Quince, Barbara Pariente and James E.C. Perry were skeptical.
Quince noted that current law allows people to own or lease solar panels on their homes and asked: "Why do we need this established in the Constitution?"
Former Justice Raoul Cantero, lawyer for the "Smart Solar" group and a former Supreme Court justice, replied that the measure was needed to prevent future legislators or regulators from reducing access to solar in Florida.
"Solar energy is becoming a more and more commonly discussed type of energy, and the people of Florida have a right to say we want this as constitutional right so everyone knows they have a right to purchase solar equipment and use it for their own use right now," Cantero said.
Justice R. Fred Lewis seemed to agree.
"A constitutional right may prohibit certain regulations that may come up that just a general property right would not prohibit," he said.
Pariente noted that the “impetus” for the "Smart Solar" amendment was "defeating the other amendment." She said that under their proposal, "a voter would be misled that this is a pro-solar energy amendment when in fact it's actually the opposite."
“The concern is by putting this into the Constitution, it maintains the status quo and prevents a further expansion of those that want solar energy and that's why they're opposing it," she said.
But Davis, the lawyer for the regulated utilities, countered: "Why they're opposing it is because they sell solar panels."
Nabors told the court that it should reject the utility-backed amendment because it fails to inform voters they would be banned from entering into contracts with companies to who want to lease solar panels to customers and allow them to sell the energy back to neighbors.
"It preserves regulations, not rights,'' he said. "It misleads the voters who think they are getting a choice."
But Justice Charles Canady disagreed. "It's about the rights of people to have the right to have solar,'' he said. "I think it's perfectly clear."
The court must apply a two-pronged test to the proposed amendment if it is allowed to go on the ballot: determine if the language is misleading and determine if the subject applies to a single subject. The court will not rule on the merits of the amendment.
Stephen Smith, executive director of the Southern Alliance for Clean Energy which supports the Floridians for Solar Choice coalition, called the rival proposal a "wolf in sheep's clothing" because it will be used by the utility industry to prevent any expansion of solar power in the state.
"A monopoly utility wants to maintain its right to sell power and not let anybody else do it,'' he said. "This is a wolf in sheep's clothing. It is a misleading amendment that they are trying to put on the ballot to hold solar back."
But Matt Carter, a former member of the Public Service Commission who is now working for the utility-backed effort, said the utility's proposal does not interfere with the ability of regulators to allow third-party leasing companies -- as long as it is regulated the same way as utilities -- but they could not sell their excess power to their neighbors.
Smith speculated that the industry will use the amendment to carve into law a ban on subsidies for solar power and will use a vague definition of "subsidy" to show that someone who puts solar on their house, and doesn't pay the utilities, "are not paying their fair share."
He said the utilities should instead plan for the changes in the market, including a reduction in demand because of the emergence of alternative energy sources, instead of trying to restrict the growth of solar in Florida.
If the court approves the amendment it is likely to be one of two amendments before voters this fall. A constitutional amendment to give businesses a property tax break for installing solar panels on their properties is poised for final passage. Lawmakers amended it to delay the effective date until 2017, and moved the ballot question to the August primary instead of the general election.
The move in the date was seen by supporters, including many business leaders, as an effort to avoid confusion if a utility-backed amendment makes it to the November ballot.