Florida Supreme Court rejects ‘energy choice’ idea

The justices said the ballot summary was misleading.
TECO power plant at Port Sutton
TECO power plant at Port Sutton [ CLIFF MCBRIDE | Tampa Bay Times ]
Published Jan. 9, 2020|Updated Jan. 9, 2020

Floridians won’t have the chance to vote on a constitutional amendment this fall that would have allowed them to choose their electric provider, the state Supreme Court ruled Thursday.

The court’s justices found the proposed amendment was misleading because its summary stated that the amendment would also allow customers to sell electricity.

“In fact the amendment does no such thing,” justices wrote.

The proposal looked to deregulate the state’s energy market, which is dominated by private utility monopolies such as Florida Power & Light, Gulf Power, Duke Energy and Tampa Electric Co.

It would have allowed customers to choose their electricity providers from a competitive market or give them more options to produce solar energy. The proposal was closely modeled on Texas’ deregulation under former Gov. George W. Bush.

Attorney General Ashley Moody also argued to the court that the proposal was misleading and a veiled attempt to “eliminate” the state’s investor-owned utilities. She has come out against several proposed amendments that are now facing review by the Supreme Court, including proposals that would ban assault weapons and allow the use of recreational marijuana.

By law, proposed constitutional amendments are screened by the Supreme Court, which decides whether the amendment adheres to a single subject and isn’t misleading.

The amendment was opposed by the state’s major utilities. Business groups that represent those utilities, such as the Florida Chamber of Commerce and Associated Industries of Florida, praised the court’s decision.

“Thanks to today’s ruling, Florida’s consumers and businesses can continue to rely on our electricity system that helps drive Florida’s economy," Associated Industries of Florida said in a statement.

The amendment was being led by the committee Citizens for Energy Choices. Its chairman, Alex Patton, said in a statement Thursday that he respected the court’s decision, but that it now places Florida at an “economic competitive disadvantage” compared to other states that are considering deregulating energy markets.

“The way Florida regulates and protects monopolies is wrong, antiquated, and anti-consumer,” Patton said in a statement.

The organizers had already collected more than 642,000 verified signatures of the 766,200 required to make it on to the 2020 general election ballot. Patton said he did not know what the group would do next.

“We will review the data, seek legal advice, and regroup after a detailed post-mortem,” Patton said.

While Moody criticized multiple aspects of the amendment, the justices focused on just one: whether the amendment allowed customers to sell electricity.

The amendment summary stated that it “grants customers of investor-owned utilities the right to choose their electricity provider and to generate and sell electricity.”

But justices noted that the amendment itself did not grant the right for customers to sell electricity. Instead, the ballot language, which would appear in the state Constitution, said that nothing in the amendment "shall be construed to limit the right of electricity consumers to buy, sell, trade, or dispose of electricity.”

"The question is not whether a person has the right to sell electricity if the Initiative is adopted, but whether, as the ballot summary claims, the Initiative grants that right,” justices wrote. “It does not, and the ballot summary is therefore affirmatively misleading.”