The Florida Supreme Court heard a compelling argument this week that a thinly veiled attempt to use the Florida Constitution to protect the electric monopolies misleads voters into thinking it is something entirely different. The wording of this solar energy measure financed by the utilities is deceptive, and the justices should not allow it to go on the fall ballot. The amendment is an attempt to block the private market for solar in Florida — not to expand consumer choice — and voters should not be confronted with this sneak attack.
The misnamed Consumers for Smart Solar, a special interest group financed by the regulated utilities, is behind a constitutional amendment its supporters say promotes "a sensible, fair and safe expansion of solar energy" in Florida. The measure does no such thing. It merely cements into the Constitution the antimarket restrictions that already exist in state law and keeps the market for solar effectively closed, too expensive for the general public.
The issue before the court is a narrow one: Does the proposed amendment deal with a single subject, and is the summary that would appear on the ballot clear enough for voters to make an informed decision? By lumping energy, regulatory and tax policy into a single question, the ballot summary stretches the limit of the single-subject test. The real problem, though, is the measure is grossly misleading, implying it would give Floridians more rights and control over solar than what exists now.
The amendment mentions consumer "rights" and solar "choice," but it doesn't expand either. It merely would enshrine into the Constitution the rights and regulations affecting solar that already exist in state law. Rather than expanding choice for consumers, the measure does the opposite. Giving the electric monopolies the additional constitutional protection for their outdated business models would put Florida even further behind in the use of renewable energies. That's why the industry has spent nearly $7 million on the measure, which came about in reaction to a ballot proposal conceived by environmentalists that would have truly brought competition to the solar market. That competing effort failed to get enough signatures for 2016 and is scheduled to come back in 2018.
In briefs to the court, the power companies have fumbled in trying to explain exactly what their proposal would and would not do. But they concede that the measure enshrines "no policy of any kind," adding that "no action is required by any state or local regulatory authority." So how does establishing a right and a regulatory framework for solar that already exists move the ball at all? This is varnish disguised as paint. So manufactured is the amendment that a state-required analysis found the measure "will not require any change in current or anticipated state and local regulation or taxation of solar energy in Florida."
The merits of the amendment and the implications of putting energy policy under the state Constitution are not before the court. Those are issues for the voters to decide. The justices, though, have an obligation to ensure that any amendment put to the electorate is factual, fair and instructive enough for voters to make an informed decision. This proposal fails that test.