Solar advocates file suit to block 'misleading' Amendment 1

A worker installs a solar panel at Duke Energy Florida's new 3.8 megawatt solar array in Osceola County, near St. Cloud. [William R. Levesque | Tampa Bay Times]
A worker installs a solar panel at Duke Energy Florida's new 3.8 megawatt solar array in Osceola County, near St. Cloud. [William R. Levesque | Tampa Bay Times]
Published Nov. 2, 2016

TALLAHASSEE — Using new information that came from a leaked audio recording, solar industry advocates on Wednesday filed two legal actions aimed at asking the Florida Supreme Court to disqualify the outcome of Amendment 1 voting because of revelations they claim are proof that Florida's electric utility industry intentionally attempted to deceive voters.

The lawsuits, filed by the Florida Solar Energy Industries Association and Floridians for Solar Choice, the pro-solar political committee opposing the amendment, ask the court to reopen the case involving the ballot language used in the proposed Amendment 1 on the Nov. 8 ballot and declare it unconstitutionally misleading.

Proponents of the amendment, the utility-backed Consumers for Smart Solar, intentionally "withheld relevant and material information as to the objective and intended purpose of the amendment, and thereby misled this Court (and is now misleading the public) as to the adequacy of the ballot title and summary presented to the voters," the groups allege in their emergency lawsuit.

They cite a report by the Tampa Bay Times/Miami Herald that quotes Sal Nuzzo, the policy director and vice president at Tallahassee think tank supported by the utility industry, calling Amendment 1 "an incredibly savvy maneuver" and an "act of political jiu jitsu" that attempts to deceive voters into supporting restrictions on the expansion of solar by shrouding it as a pro-solar amendment.

The ballot summary fails to "disclose that by making the right to generate solar power for one's personal use the sole constitutional right, the amendment impliedly excludes the constitutional right to share excess power generated with one's neighbor or otherwise transmit the excess power," the suit alleges. "It certainly does not disclose that, as Mr. Nuzzo touted, the purpose of the amendment is to curtail the expansion of solar power in Florida."

Sarah Bascom, spokesperson for the political committee backed by the utilities, Consumers for Smart Solar, dismissed the lawsuit as "political grandstanding at its best to deter Florida voters from voting in favor of Amendment 1." She repeated the industry claim that the amendment "simply safeguards consumer rights, consumer protection and consumer fairness as we grow solar in Florida."

With more than four million voters having already cast their ballots, the groups filed a second lawsuit asking the court to order Florida Secretary of State Ken Detzner to embargo the counting of votes cast for Amendment 1 until the court rules on the allegations.

"This is an insurance policy. It's not a sign we're going to lose," said Stephen A. Smith, director of the Southern Alliance for Clean Energy, an organizing force behind the solar industry's campaign to oppose Amendment 1. "Because the utilities are using as much deception at the ballot box, we are using every tool in our toolbox. But we still believe the way to kill this thing is just for people to vote no."

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Florida law requires that the Supreme Court review all ballot initiatives to determine if the language is fair and not misleading. The court initially ruled on a 4-3 vote in March that the language was not misleading based on the arguments provided by the lawyers for the utilities.

In an a strongly worded dissent, Justice Barbara Pariente disagreed, calling the ballot language "a wolf in sheep's clothing" because it is "masquerading as a pro-solar energy initiative." Three of the four justices who voted for the ballot language, Chief Justice Jorge Labarga, Ricky Polston and Charles Canady, are all on the ballot for a merit retention vote. The other yes vote, Justice R. Fred Lewis, is not up for retention since his term expires in January 2018.

Recent polls show that Amendment 1 may be falling short of the 60 percent of the vote needed to become law.

Ben Kuehne, legal counsel for the groups filing the lawsuit, told reporters in a telephone conference the suit was prompted "now that proof of the deception and potential misconduct on the court has been unmasked by the revelation of a secret scheme by the pro utility coalition to mislead the public into believing Amendment 1 is a pro solar amendment when in truth it is nothing but a scheme to deceive."

He said they are asking the court to expedite a review of their case and determine the amendment "is invalid because it is deceptive and misleads the public, thereby preventing intelligent vote casting."

The second lawsuit is a mandamus action that asks the Florida Supreme Court to halt vote counting because of the misleading language. Only the court can invalidate an election.

Bill Gallagher, the past president of the Florida Solar Energy Industries Association, said in a press conference Wednesday with reporters that the "groundswell of support for defeating this amendment is amazing."

In the audio recording obtained by the Times/Herald, Nuzzo, a vice president at the James Madison Institute, detailed at an October conference of conservative, free market advocacy groups the strategy used by the state's largest utilities to create and finance Amendment 1. He said the amendment was an act of "political jiu-jitsu" that "would completely negate anything they (pro-solar interests) would try to do either legislatively or constitutionally down the road."

"By withholding this now-revealed information and by persuading the Court to find that the title and summary clearly and unambiguously inform the voters as to the true purpose of the amendment, the proponents misled and defrauded this Court by affirmative misstatements and omissions of material fact," the suit claims. "Not once did the proponents concede that Amendment 1 was intended to restrict pro-solar choices through political 'jiu-jitsu' by severely restricting consumer rights to solar energy through the expansion of regulatory powers."

JMI is a conservative, free-market research organization which receives funding from some of Florida's largest electric utilities. The group's executive director, Bob McClure, said in a statement that Nuzzo "misspoke" when he addressed the conference.

Consumers for Smart Solar have since scrubbed its Facebook and Twitter accounts of all references to the JMI research that supported the issue.

Smith said the attempts by the proponents of Amendment 1 to distance themselves "does not pass the laugh test" and he noted that the head of Gulf Power, which has helped finance the amendment, also sits on the board of JMI.

"It is not credible that they can just throw this individual under the bus after he has claimed what many of us have suspected," he said.

The Times/Herald reported Tuesday that the utility industry has spent $42.7 million this election cycle in an attempt to win support for their agenda, which includes staving off the emergence of consumer-owned rooftop solar installations in Florida and requiring solar users to pay more into their revenue stream. The utilities have put $20 million into Consumers for Smart Solar, the political committee they created to promote the amendment, and groups backed by them have contributed another $6 million to the campaign.

They have put another $23 million into largely influencing Agriculture Commissioner Adam Putnam, who head's the state's energy office, Gov. Rick Scott and the state Legislature and the investment is seen as part of their contingency plan if Amendment 1 fails.

In documents filed with the Florida Public Service Commission and in public statements, officials at Florida's utilities have made it clear that they want to roll back the current net metering law relied on by solar users, as utilities have in other states. Net metering allows homeowners and businesses to be reimbursed for the excess energy their solar panels generate and solar advocates say the effort to change the current law is designed to make consumer-owned solar use less financially feasible.

Utility officials, however, counter that solar users "subsidize" non-solar users because they rely on backup electricity when it is cloudy or dark and their payments to the utilities are often offset in part by the reimbursement they get for generating excess energy.

Solar advocates, however, say solar users provide a net benefit to other consumers because they provide excess power so that the utility does not have to fire up expensive "peaker" plants during high demand times for electricity. They also argue that consumer-owned solar reduces the need for the construction of expensive natural gas-fired power plants and provides an environmental benefit by producing non-carbon emitting energy.

Smith said the coalition of pro-solar groups "continue to have great concerns about" the characterization of Amendment 1 by the proponents, noting that the advertising has "shifted" from depicting the amendment as pro-solar to a more recent focus on attempting to "scare people" into thinking that solar installation can become a fire hazard.

"We've had so many people come to us and say they were deceived — people who have already voted, people who are confused by it — and they have asked us to take legal action,'' he said in an interview Wednesday.

"This is beyond now the issue of solar. This is about exposing the utilities for what they are. They are not this mythological power that their money and influence has demonstrated. It's kind of a referendum on them because we have exposed their deceptive behavior behind it."

Contact Mary Ellen Klas at Follow @MaryEllenKlas.