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Utilities Cloud Solar Power in the Sunshine State

Under the guise of a consumer initiative, Florida power companies are trying to make it harder to use solar energy.

November 2, 2016

The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.

Corporations have a lot of tools to get their way.  As I describe in my book Corporate Citizen?: they can back candidates, lobby legislatures, and even show-up at regulatory agencies with pre-written rules at the ready. Another tactic is passing industry-friendly ballot initiatives. That’s what is now going on in Florida (where I live), but you would never know it from reading a proposed amendment to the state Constitution. Here’s the text of the proposal:

Ballot title:

“Rights of Electricity Consumers Regarding Solar Energy Choice”

Ballot summary:

“This amendment establishes a right under Florida’s constitution for consumers to own or lease solar equipment installed on their property to generate electricity for their own use. State and local governments shall retain their abilities to protect consumer rights and public health, safety and welfare, and to ensure that consumers who do not choose to install solar are not required to subsidize the costs of backup power and electric grid access to those who do.”

Sure sounds good. What’s wrong with protecting people who want solar panels? Nothing really, other than the fact that Floridians already have that right. The problem is with the reasonable sounding language that those who don’t install solar “are not required to subsidize” those who do.

As editorial boards and environmentalists have pointed out, those words could be used by utilities to permanently block third parties from selling solar panels. Florida is one of five states that bans third-party installers of solar panels. Moreover, the amendment gives utilities the right to impose new fees on solar customers to compensate for the loss of revenue when solar customers don’t buy their power. Suddenly, an amendment that at first glance looks like it helps consumers, actually does just the opposite. The beneficiaries of this provision are power companies who – surprise – are financing the campaign for the measure.

The seemingly pro-solar tilt of the amendment is deliberate. The effort to mislead was exposed when audio surfaced earlier this month in a talk given by the policy director of a think tank supported by electric utilities.  Sal Nuzzo of Tallahassee’s  James Madison Institute (“Florida’s Free Market Think Tank”) called the amendment “an incredibly savvy maneuver” that “would completely negate anything they (pro-solar interests) would try to do either legislatively or constitutionally down the road.”

Nuzzo also confirmed what opponents of the amendment had been saying all along: that the provision was actually a tool to restrict sales of solar panels:

“Solar polls very well… To the degree that we can use a little bit of political jiu-jitsu…and take what they’re kind of pinning us on and use it to our benefit either in policy, in legislation, or in constitutional referendums — if that’s the direction you want to take, use the language of promoting solar, and kind of, kind of put in these protections for consumers that choose not to install rooftop.”

There was an unsuccessful effort to prevent this misleading language from reaching the voters. Opponents of the measure challenged it before the Florida Supreme Court. In a 4–3 decision in March, the Court ruled the amendment’s language was “not clearly and conclusively defective.” Justice Barbara Pariente, who wrote the dissent, did not mince words. “Let the pro-solar energy consumers beware,” she wrote. “Masquerading as a pro-solar energy initiative, this proposed constitutional amendment, supported by some of Florida’s major investor-owned electric utility companies, actually seeks to constitutionalize the status quo…The ballot language [purports] to grant rights to solar energy consumers that are illusory.”

Just how much are Florida’s utilities willing to pay to enshrine this faux pro-solar provision in the state constitution? Quite a bit, it seems. As of the end of October, the ridiculously named Consumers for Smart Solar, the PAC supporting the amendment, had raised $26 million. Among the “consumers” funding the group are Florida Power and Light ($7.5 million), Duke Energy ($6.7 million), Tampa Electric ($3 million) and Gulf Power Company ($2 million). By contrast, the group leading the opposition, Floridians for Solar Choice, has raised $2.4 million.

But for all that money, the utilities may not have bought that much. According to Ballotpedia, not a single newspaper has endorsed the initiative, while the Miami Herald, the Orlando Sentinel and the Tampa Bay Times are all opposed. Former Vice President Al Gore, speaking at a rally for Hillary Clinton, described the amendment as “phony baloney.” Carl Hiassen, Florida’s best-known opinion journalist, has called the proposal a “slick, oily fraud,” and even the usually apolitical Jimmy Buffett has urged a no vote.

It will take approval from 60 percent of the voters for the amendment to pass. According to a poll earlier this week by St. Leo University, that’s exactly where support for the measure stands – 60 percent. However, the trend line is not encouraging. The amendment had 84 percent support in September. “Our data shows that the more the public knows about the possible consequences of [the] Amendment, the less they like it,” said Prof. Frank Orlando, director of the poll.

We’ll see after Election Day whether the amendment’s opponents can educate the electorate fast enough to prevent amending Florida’s constitution in industry’s favor.