FPL wrote portions of bill that imposes requirements on solar

Rep. Ray Rodrigues, R- Fort Myers, shown here in 2015 on the floor of the Florida House. [SCOTT KEELER | Tampa Bay Times]
Rep. Ray Rodrigues, R- Fort Myers, shown here in 2015 on the floor of the Florida House. [SCOTT KEELER | Tampa Bay Times]
Published Apr. 6, 2017

TALLAHASSEE — The state's largest utility wrote parts of a bill that could limit a constitutional amendment expanding the use of solar power in Florida.

Florida Power & Light wrote language that appears verbatim in sections of HB 1351, which passed the House Ways and Means Committee on Wednesday.

The bill implements Amendment 4, a ballot measure approved by 73 percent of August primary voters that prohibits tax collectors from increasing the taxable value of a home or business because of a solar installation.

But the bill, sponsored by Rep. Ray Rodrigues, R-Fort Myers, goes beyond the amendment to impose disclosure and paperwork requirements on companies that finance and install solar energy products on homes and businesses.

Florida's utilities have largely remained silent on Amendment 4 but documents from the industry's trade organization, the Edison Electric Institute, show it has conducted a nationwide campaign to raise concerns about the rooftop solar industry, including letters to Congress and state officials.

Florida's utility industry worked unsuccessfully to pass Amendment 1 on the November ballot, which would have allowed regulators to impose fees and barriers to rooftop solar installation.

Draft legislation sent to Rodrigues was labeled "Attorney-Client Privileged Communication," and shows that the Word document was authored by Barbara J. Washington senior legal assistant at NextEra, according to public records made available to the Times/Herald by the Energy and Policy Institute. An FPL spokesman said Washington didn't write the bill language and that NextEra, FPL's parent company, had nothing to do with this legislation.

To be titled the "Florida Distributed Solar Equipment Consumer Protection Act," the draft included numerous disclosure requirements imposed on financial solar electric providers.

On Jan. 18, Rodrigues accepted a $15,000 contribution to his political committee from Florida Power & Light, and $2,000 from Tampa Electric. Five days later, on Jan. 23, he sent an email asking a lawyer in the House bill drafting office to analyze FPL's proposal and compare it to the Arizona bill he was considering using as a model for his "consumer protection language."

"I received the following document as a suggestion on the consumer disclosure for the Solar Amendment. Can you compare this to the Arizona bill that we sent and let me know the differences?" he wrote to staff attorney Yvonne Gsteiger.

Gsteiger responded that the FPL draft "establishes extensive requirements before a solar electric equipment [SEE] can be installed. This could be a huge barrier to selling SEEs."

On Feb. 24, Rodrigues filed his original bill primarily modeled after an Arizona law that was pushed by the utility industry in that state. He said the consumer safeguards are needed to protect against "bad actors" in the solar industry.

On March 21, when his bill came up for its first hearing before the House Energy & Utilities Subcommittee, Rodrigues filed an amendment that included FPL's language verbatim in eight different sections.

Rodrigues acknowledged that "some of the language" written by FPL made it into the bill. But, he added, while FPL may have succeeded in getting in provisions he agreed with, solar industry advocates also succeeded in stripping out provisions they considered objectionable — such as removing criminal penalties that tracked the Arizona bill and replaced them with civil penalties.

"I didn't take that language as it was given to me, and I didn't put it into the bill," he said Tuesday. "The point of this is to implement the amendment and to do it in a way that protects Florida's consumers — that's my goal."

The documents were obtained through a public records request by the Energy and Policy Institute, a non-profit that works to counter what it deems "misinformation" from fossil fuel and utility interests. David Pomerantz, executive director of the group, said he was not surprised to see FPL taking a role in shaping the bill.

"Despite the clear message from voters last year that they want more solar, FPL just won't quit," he said. "They're still trying to throw up barriers to Floridians going solar in any way they can, and they're happy to buy the support of legislators like Rep. Rodrigues who will carry their water for them."

Rodrigues said he received language from not only FPL but also from Solar City, a solar installation company, as well as state and federal solar industry associations. He said he listened to them all and "what I've included makes the bill better."

He defended the approach because he said he prefers to accept language from interests groups, "then pick and choose what accomplishes the goal."

FPL spokesperson Sarah Gatewood did not comment about the specific documents but said her company has "a responsibility to participate in policy discourse to ensure we can continue delivering the value and service our customers deserve."

"We are often asked to share our expertise, experience and opinion as part of the process, and as we have been actively supporting these issues," she said. "Clearly, we have spoken to and provided information to many legislators."

Small solar operators testified that while the new paperwork requirements may be handled by large solar contractors, it will impose hurdles to smaller businesses.

Richard Pinsky, lobbyist for the Florida Solar Energy Industry Association, said Wednesday that unlike Arizona, Florida's regulation doesn't put the emphasis on the seller but on the installation — licensed electricians, solar contractors.

The bill is unacceptable to the solar industry, he said, because it exempts and removes the current licensing system imposed on solar operations. "Anyone would begin to sell solar systems and you would not need an installation license," he said.

One FPL-authored provision that remains in Rodrigues' bill requires a solar company to provide the buyer with a "full and accurate summary of the total costs under the agreement for maintaining and operating the solar equipment over the life of the solar equipment, including financing, maintenance and construction costs related to the solar equipment."

Another provision written by FPL was criticized by solar industry advocates during the March 21 House hearing because it created unnecessary bureaucratic hurdles and required solar equipment providers to estimate future utility costs if they project future savings.

Bob Stump, a former member of the Arizona Corporation Commission appeared before the House committee Wednesday and said the solar industry "has not been able to police itself as well as it should" touting the regulation his state imposed on financing agreements involving "risky solar leases."

He said the consumer protections has state has adopted have not reduced expansion of solar; Arizona has seen an 8 percent increase in solar electric capacity since the rules were implemented.

"The sky in Arizona hasn't fallen," he said. "If the utilities were in a conspiracy to decimate Florida's solar industry and were truly as Machiavellian as some conspiracy theorists make them out to be, wouldn't they secretly wish for more instances of fraud and fewer protections to give the solar industry a bad name?"

Sen. Jeff Brandes, R-St. Petersburg, the Senate sponsor of the bill to authorize implementation of Amendment 4, said he does not support the added "consumer" language in Rodrigues' proposal.

This wasn't the first time FPL or its parent company provided documents to legislators advancing positions the company supported.

Sen. Aaron Bean R-Fernandina Beach, acknowledged Tuesday that he received "talking points" he used when he presented his bill to senators. The bill, SB 1248, would overturn a Florida Supreme Court ruling last year that said that Florida regulators exceeded their authority when they allowed FPL to become the first utility in the nation to be allowed to charge its customers, not its shareholders, for speculative investment in fracking operations.

The Word document, titled "Gas Reserves Talking Points" and obtained by the Energy and Policy Institute, was sent to Bean's personal email address by FPL lobbyist John Holley on Feb. 28. The document was authored by FPL's Vice President of State Legislative Affairs Daniel Martell.

"Here you go. I would love to catch up if you have any questions, comments, concerns," Holley wrote. "Thank you so much Aaron!!"

The two pages of talking points defend FPL's "innovative approach" to natural gas exploration as a hedge against price spikes, how the practice of drilling for gas "removes the middle man," and how "the proposed legislation will allow customers to reap the economic and price stability benefit of a robust gas production market."

Bean said Tuesday he was asked to sponsor the bill by Senate "leadership" but declined to identify the senator, he said, at the senator's request. He defended the practice of accepting talking points from lobbyists.

"It happens all the time. We get information from lobbyists every day," he said. "It's not unusual for a lobbyist to send talking points."

FPL has been one of the most generous contributors to House and Senate and leadership campaigns. Since 2015, Rodrigues' political committee has accepted $29,500 in direct contributions from utilities.

He said the contribution has "absolutely nothing" to do with his proposed implementation of Amendment 4. "I accepted campaign contributions from a number of people around that same period," he said.

Contact Mary Ellen Klas at Follow @MaryEllenKlas