Supreme Court of Florida
____________
No. SC2021-1761
____________
FLORIDIANS AGAINST INCREASED RATES, INC.,
Appellant,
vs.
GARY F. CLARK, etc., et al.,
Appellees.
____________
No. SC2022-0012
____________
FLORIDA RISING, INC., et al.,
Appellants,
vs.
GARY F. CLARK, etc., et al.,
Appellees.
September 28, 2023
COURIEL, J.
We have for review a decision of the Public Service
Commission relating to rates charged by Florida Power & Light
Company (FPL) for the provision of electric service. 1 We find that
the Commission has not supplied a basis for meaningful judicial
review of its conclusion that the settlement agreement at issue
“provides a reasonable resolution of all issues raised, establishes
rates that are fair, just, and reasonable, and is in the public
interest.” So we remand this case to the Commission for an
explanation of its decision consistent with the governing law as set
forth in our case law and reiterated here. 2
1. We have jurisdiction. See art. V, § 3(b)(2), Fla. Const.; see
also § 366.10, Fla. Stat. (2023).
2. Appellants raise other arguments in opposition to the
Commission’s approval of the settlement agreement. These
arguments include challenges to the Commission’s statutory
authority to approve various pieces of the settlement agreement: the
Storm Cost Recovery Mechanism; the Reserve Surplus Amortization
Mechanism; the Asset Optimization Incentive, which includes the
monetization of renewable energy credits; a corporate tax
adjustment; the Solar Base Rate Adjustment mechanism (SoBRA); a
construction incentive for solar generation sites constructed
pursuant to SoBRA; and cost recovery related to the Green
Hydrogen Pilot Program and a consummation payment FPL made to
Jacksonville Electric Authority concerning the retirement of a coal-
fired power generation unit. To the extent any of these challenges
to the Commission’s statutory authority is preserved, none gives us
a reason to set aside the order under review.
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I
The Commission approved a settlement agreement among FPL
and seven parties that intervened in this matter. The settlement
agreement, which took effect in January 2022, permits FPL to
increase rates annually for (at least) four years and offer the same
rate schedules throughout its service area. 3 It allows FPL to
increase its base rates and service charges such that FPL could
generate an additional $692 million in revenue in 2022 and an
additional $560 million in revenue in 2023. It also allows for
incremental increases in rates related to the construction of certain
solar projects; rates are estimated to increase by $140 million in
both 2024 and 2025.4 The settlement agreement authorizes an
3. Gulf Power Company was merged into FPL in January
2021. The settlement agreement allows FPL to offer the same rate
schedules to all post-merger customers. But because it will at first
be more expensive for FPL to service customers residing in pre-
merger Gulf Power service areas, the settlement agreement allows
FPL, for five years, to apply transition riders to the bills of those
customers and a corresponding transition credit to the bills of
customers in pre-merger FPL service areas.
4. When this case was before the Commission in August
2021, a witness predicted that, as a result of all the rate increases
authorized in the settlement agreement, a typical 1,000-kWh
residential bill for customers serviced by FPL before the merger with
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equity-to-debt ratio of 59.6%, 5 and a return on equity (ROE) 6
between 9.7% to 11.7%, with a midpoint of 10.6%. 7 It further
Gulf Power would rise from $101.70 in January 2021 to $107.78 in
January 2022 and would be $115.34 by January 2025.
5. A utility company finances its operations with both
shareholder investment (equity) and debt. The equity-to-debt ratio
describes a company’s capital structure by explaining how much of
its financing comes from shareholder investment and how much
comes from borrowing. See Sierra Club v. Fed. Energy Regul.
Comm’n, 867 F.3d 1357, 1376 (D.C. Cir. 2017). Typically, the more
an electric utility company’s financing comes from equity, the
higher its rates will be, as equity investors often require a higher
rate of return than creditors, or debt investors, do. Id. at 1376-77.
In this case, the requested ratio provides that 59.6% of FPL’s
financing will come from equity, and 40.4% will come from debt.
6. Return on equity is the rate of return that a shareholder
receives on an investment in the company. See Sierra Club v. Fed.
Energy Regul. Comm’n, 38 F.4th 220, 229 (D.C. Cir. 2022). Courts
have said that companies in this regulated industry can expect a
rate of return to shareholders comparable to the rates offered by
similar companies in the industry, and that the authorized rate of
return should be high enough to allow the company to maintain its
financial health and attract additional capital investment. See Fed.
Power Comm’n v. Hope Nat. Gas Co., 320 U.S. 591, 603 (1944). By
establishing both a midpoint and range, “the commission is
acknowledging the economic reality that a company’s rate of return
[on equity] will fluctuate in the course of a normal business cycle.”
United Tel. Co. of Fla. v. Mann, 403 So. 2d 962, 967-68 (Fla. 1981).
7. If the average 30-year U.S. Treasury Bond yield rate is at
least 50 basis points greater than the yield rate on August 10,
2021, the date the settlement agreement was filed with the
Commission, for any period of six straight months, then FPL is
authorized under the settlement agreement to increase its ROE
range to 9.8% to 11.8%, with a mid-point of 10.8%. An increase in
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provides that FPL can charge a minimum base bill of $25.00 to
residential customers and certain business customers with low
energy usage.
The settlement agreement authorizes increased investment in
FPL’s power generation facilities, transmission and distribution
systems, and several pilot programs for electric vehicles (EV) and
renewable energy. It includes the expansion of SolarTogether, an
additional solar program to the one mentioned above, which
allocates newly built solar capacity to different customer classes
and allows customers to subscribe to a portion of this capacity in
exchange for a credit funded by the general body of ratepayers. It
permits FPL to adopt new depreciation timelines and continue using
the Reserve Surplus Amortization Mechanism (RSAM). 8
the ROE range and midpoint resulting from the implementation of
this provision would not, under the terms of the settlement
agreement, result in a corresponding increase in base rates.
8. A depreciation reserve surplus occurs when a company
collects a higher amount than needed to cover depreciation
expenses given new information revealing that an asset, like a
plant, has a longer-than-expected service life. According to one
witness, with the RSAM, FPL can use its depreciation reserve
surplus to “absorb changes primarily in cash revenues and
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Additionally, FPL can adjust rates incrementally if costs change
because of a named tropical system or its successor, like a
hurricane, or a permanent change in federal or state corporate tax
rates. And FPL is allowed to share in the savings that result from
an expanded version of its asset optimization program. The
settlement agreement also extends, from ten years to twenty, the
time over which FPL can recover the cost of certain retired assets.
The Commission heard arguments in favor of and against the
settlement agreement. Appellants, who did not sign the settlement
agreement, argued that it was not in the public interest and would
result in unreasonably high rates. They questioned the need for the
rate increases in the settlement agreement, contended that both the
ROE range and the amount of equity in the equity-to-debt ratio
were excessive, and asserted that the RSAM unfairly deprives
customers of a surplus created by funds they supplied. Appellants
also argued that FPL’s projected rate base investments and pilot
programs were unreasonable, and that the settlement agreement—
expenses while maintaining a pre-established ROE within its
authorized range without an increase in customer rates.”
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including the expanded SolarTogether program and the minimum
bill—favored commercial and industrial customers at the expense of
residential and small business customers. As for the minimum bill
specifically, Appellants stated that it requires some customers to
pay for more electricity than they use. Appellants also challenged
the settlement agreement’s extension of time for FPL’s recovery of
retirement costs of certain assets; the extension, they contended,
would lead to increased costs and force ratepayers to pay for
obsolete assets.
In response, FPL and other signatories to the settlement
agreement contended that it would provide customers with stable,
predictable, and reasonable rates. FPL settled for a smaller rate
increase than it first sought, including for residential customers in
2022 and 2023. Signatories defended the reasonableness of the
ROE range and equity-to-debt ratio. They argued that the RSAM
allows FPL to handle changes in revenue and expenses during the
settlement agreement’s term without having to seek more rate
increases, benefitting both FPL and customers. Signatories
maintained that the increased investment in both cost-effective
clean energy programs and improvements to the rate base, such as
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installing new power generation facilities and expanding
transmission and distribution systems, was reasonable. They
asserted that the settlement agreement as a whole, including the
expanded SolarTogether program, did not result in unfair and
discriminatory rates for any customer classes. Signatories pointed
out that the settlement agreement complies with the Commission’s
gradualism principle, 9 and claimed that it moved all major rate
classes closer to parity. They also argued that the expanded
SolarTogether program was in the interest of all ratepayers: only
participants are projected to pay for the expanded program as a
whole, yet the general body of ratepayers is projected to receive 45%
of the benefits.
As to the minimum bill, signatories said it ensures that all
customers, including those that use only a small amount of
electricity, contribute toward their fair share of fixed system costs
necessary to connect and service customers. Regarding the
9. As one witness described it, the Commission’s gradualism
principle limits the increase in the amount of revenue allocated to
“each rate class to 1.5 times the system average increase in
revenue,” and does not “allow[] any class to receive a decrease” in
the amount of revenue for which it is responsible.
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extended cost recovery period for certain retired assets, signatories
argued that it would reduce current revenue requirements without
resulting in a significant difference in costs for ratepayers over the
twenty-year term of the extended period. Signatories also argued
that it was fair to ask future ratepayers to bear some of the
retirement costs, as they will still benefit from the retirement of the
included assets.
Having heard all this, the Commission concluded that the
settlement agreement “provides a reasonable resolution of all issues
raised, establishes rates that are fair, just, and reasonable, and is
in the public interest.” In support of this conclusion, the
Commission cited FPL’s quality of service, reliability, and
performance; the benefits to customers of the consolidation of FPL’s
and Gulf Energy’s systems; the $428 million reduction in requested
base rate increase in the settlement agreement when compared to
FPL’s as-filed case; FPL’s typical 1,000-kWh residential bill, which
is projected to remain 21% below the current national average; the
various mechanisms in the settlement agreement that allow for a
four-year rate plan, providing stability for customers and financial
security for FPL; the increased investment in both solar and EV
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programs; and the fact that the Office of Public Counsel 10 and other
signatories representing a broad section of FPL’s customer classes
supported the settlement agreement.
The Commission’s reasoning about whether all this is in the
public interest covers less than two pages of the over 70,000 in the
record we have for review.
II
A
The Public Service Commission has the power to “determine
and fix fair, just, and reasonable rates that may be requested,
demanded, charged, or collected by any public utility for its
service.” § 366.06(1), Fla. Stat. (2021); see also § 366.05(1)(a), Fla.
Stat. (2021) (“[T]he commission shall have power to prescribe fair
and reasonable rates and charges . . . .”). In doing so, the
Commission must act in the “public interest,” section 366.01,
Florida Statutes (2021), and ensure that no public utility gives “any
10. The Office of Public Counsel is the “statutorily created
representative of all FPL ratepayers” in proceedings before the
Commission. Sierra Club v. Brown, 243 So. 3d 903, 915 (Fla.
2018); see §§ 350.061, 350.0611, Fla. Stat. (2021).
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undue or unreasonable preference or advantage” to any customer,
section 366.03, Florida Statutes (2021).
We have repeatedly recognized the “broad legislative grant of
authority” afforded to the Commission and the “considerable
license” it enjoys in fixing fair, just, and reasonable rates. Citizens
of State v. Pub. Serv. Comm’n, 425 So. 2d 534, 540 (Fla. 1982). 11 In
exercising this authority, when it reviews a settlement agreement,
the Commission does two things. First, it makes factual findings
11. Our dissenting colleagues are correct that the
Commission is an “arm of the legislative branch of government,”
section 350.001, Florida Statutes (2021), but it does not follow from
that observation that we can wash our hands of the judicial review
that is our constitutional responsibility, or that “the role of our
Court and federal courts fundamentally differ when dealing with
our respective administrative processes,” Francis dissenting opinion
at 36. Our Constitution vests the legislative power in the Florida
Legislature, article III, section 1, Florida Constitution, and we have
made clear that “fundamental and primary policy decisions shall be
made by members of the legislature who are elected to perform
those tasks,” Askew v. Cross Key Waterways, 372 So. 2d 913, 925
(Fla. 1978). The Legislature expressly tasked us with reviewing the
Commission’s decisions. § 366.10. We exercise judicial review to
ensure that the Commission exercised its authority in line with the
Legislature’s policy decisions, and the Florida Constitution. See
Askew, 372 So. 2d at 918 (“In the final analysis it is the courts,
upon a challenge to the exercise or nonexercise of administrative
action, which must determine whether the administrative agency
has performed consistently with the mandate of the legislature.”).
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based on the evidence presented by the parties. § 120.569(2)(l)-(m),
Fla. Stat. (2021). We sustain these findings if they are supported by
competent, substantial evidence in the record. § 120.68(7)(b), Fla.
Stat. (2021).
Second, the Commission decides whether the settlement
agreement, in light of its findings of fact, is in the public interest
and results in rates that are fair, just, and reasonable. Despite
what we have indicated in the past, see, e.g., Sierra Club, 243 So.
3d at 914-15, this decision is not a pure finding of fact that we are
able to review by searching for competent, substantial evidence in
the record. Instead, as suggested by the qualitative words with
which it is described, the Commission’s decision that a settlement
agreement is in the public interest and results in rates that are fair,
just, and reasonable rests on both facts in the record and policy
judgments guided by its “specialized knowledge and expertise in
this area.” Gulf Coast Elec. Coop., Inc. v. Johnson, 727 So. 2d 259,
262 (Fla. 1999); see also Utilities Operating Co. v. Mayo, 204 So. 2d
321, 324 (Fla. 1967) (the Commission’s determination that “a
particular rate is sufficient to produce a ‘fair return’ is a mixed
question of law and fact.”). We thus review the decision to ensure it
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is within the range of discretion given to the Commission by the
Legislature. § 120.68(7)(e)1.; see also § 120.68(7)(e)4.; cf. also
Island Harbor Beach Club, Ltd. v. Dep’t of Nat. Res., 495 So. 2d 209,
218 (Fla. 1st DCA 1986) (“[A]n agency’s exercise of delegated
legislative authority will not be disturbed on appeal unless shown
by a preponderance of the evidence to be arbitrary, capricious, or
an abuse of administrative discretion.”).
The Commission’s decisions arrive here “with the presumption
that they are reasonable and just.” W. Fla. Elec. Coop. Ass’n, Inc. v.
Jacobs, 887 So. 2d 1200, 1204 (Fla. 2004). 12 To determine whether
12. This presumption is no rubber stamp. “Ultimately, the
Commission’s actions are conditioned by statute,” Citizens of State
v. Fla. Pub. Serv. Comm’n (Citizens I), 146 So. 3d 1143, 1153 (Fla.
2014), and, as Justice Francis recognizes, Francis dissenting
opinion at 40, we review them to ensure that they are in line with
these conditions. This review requires a well-reasoned explanation,
not simply a lengthy record. Our requiring of this explanation and
our review of the Commission’s work does no violence to the
presumption; it just means the presumption is not a conclusion in
presumption’s clothing. Notably, even when this presumption was
of statutory force, see section 350.12(2)(m), Florida Statutes (1975)
(repealed by chapter 76-168, section 3, Laws of Florida, and chapter
81-170, section 6, Laws of Florida), we still sometimes remanded for
further explanation when the Commission’s orders failed to identify
the factual basis for its decisions. See, e.g., Greyhound Lines, Inc.,
S. Greyhound Lines Div. v. Mayo, 207 So. 2d 1, 4-5 (Fla. 1968). But
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the Commission has exercised its discretion within the range
delegated to it by the Legislature, we look to the reasons given by
the Commission for its decision. Were we to do otherwise, we might
upset the carefully constructed constitutional and statutory process
applicable here by ourselves supplying a basis for the Commission’s
action that the Commission, with its expertise, did not offer—in
essence propelling “the court into the domain which [the
Legislature] has set aside exclusively for the administrative agency.”
Sec. & Exch. Comm’n v. Chenery Corp. (Chenery II), 332 U.S. 194,
196 (1947); see § 120.68(7)(e) (“[T]he court shall not substitute its
judgment for that of the agency on an issue of discretion.”); Order at
2, LULAC Fla. Educ. Fund, Inc. v. Clark, No. SC2021-0303 (Fla.
May 27, 2022) (“[I]t is not this Court’s job to substitute our policy
views for the Commission’s.”); Motor Vehicle Mfrs. Ass’n of U.S., Inc.
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (“We may
not supply a reasoned basis for the agency’s action that the agency
itself has not given.” (citing Chenery II, 332 U.S. at 196)); cf. Ryder
see Tamiami Trail Tours, Inc. v. King, 143 So. 2d 313, 316-18 (Fla.
1962).
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Truck Lines, Inc. v. King, 155 So. 2d 540, 541 (Fla. 1963) (“It would
not be proper for this Court to delve into the transcript of the
testimony ‘in order to resolve opposing contentions as to what it
shows or to spell out and state such conclusions of fact as it may
permit.’ ”) (quoting Florida v. United States, 282 U.S. 194, 215
(1931)).
The Commission must therefore give us something to work
with: a decision that is reasoned and articulated enough to allow us
to assess on what basis it has concluded that the settlement
agreement is in the public interest and results in rates that are fair,
just, and reasonable. See Chenery II, 332 U.S. at 196-97 (“It will
not do for a court to be compelled to guess at the theory underlying
the agency’s action; nor can a court be expected to chisel that
which must be precise from what the agency has left vague and
indecisive.”); Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 197 (1941)
(“All we ask of the Board is to give clear indication that it has
exercised the discretion with which Congress has empowered it.”).
Judicial review presupposes such an explanation. See Citizens of
State v. Graham (Citizens II), 213 So. 3d 703, 711 (Fla. 2017)
(“Judicial review proceedings under Section 120.68 . . . press for
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[crystallization] of agency discretion.”) (quoting McDonald v. Dep’t of
Banking & Fin., 346 So. 2d 569, 583 (Fla. 1st DCA 1977)); cf. Hardy
v. City of Tarpon Springs, 81 So. 2d 503, 506-07 (Fla. 1955), holding
modified by Pierce v. Piper Aircraft Corp., 279 So. 2d 281 (Fla. 1973)
(“The failure to set forth a proper statement of facts precludes
intelligent judicial review of this order. Not being advised what
constituted the basis for the decision, any effort on our part to
determine its correctness would be more guesswork.”).
We have said that, while the Commission need not “resolve
every issue independently” in its final order when it is reviewing a
settlement agreement, it must nonetheless “discuss[] the major
elements of the settlement agreement and explain[] why it [is] in the
public interest.” Sierra Club, 243 So. 3d at 914; see Citizens I, 146
So. 3d at 1153. That includes considering the competing
arguments made by the parties below in light of the factors relevant
to the Commission’s decision, and supplying, given these
arguments and factors, an explanation of how the evidence
presented led to its decision. See Motor Vehicle Mfrs. Ass’n of U.S.,
Inc., 463 U.S. at 43 (“[T]he agency must examine the relevant data
and articulate a satisfactory explanation for its action including a
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rational connection between the facts found and the choice made.”)
(internal quotation marks and citations omitted); In re Permian
Basin Area Rate Cases, 390 U.S. 747, 792 (1968) (“Judicial review
of the Commission’s orders will . . . function accurately and
efficaciously only if the Commission indicates fully and carefully the
methods by which, and the purposes for which, it has chosen to
act . . . .”). In other words, not only must the Commission’s
decision be reasonable, but it also must be “reasonably explained.”
Fed. Commc’ns Comm’n v. Prometheus Radio Project, 141 S. Ct.
1150, 1158 (2021).
B
The Legislature has provided that the Commission, in “fixing
fair, just, and reasonable rates for each customer class, . . . shall, to
the extent practicable, consider the cost of providing service to the
class, as well as the rate history, value of service, and experience of
the public utility; the consumption and load characteristics of the
various classes of customers; and public acceptance of rate
structures.” § 366.06(1). The Commission “shall also consider the
performance of each utility pursuant to [the Florida Energy
Efficiency and Conservation Act] when establishing rates for those
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utilities over which the commission has ratesetting authority.” §
366.82(10), Fla. Stat. (2021). A reasonably explained decision from
the Commission must reflect that those factors have been
considered to the extent practicable.
Other factors are discretionary: the Commission can consider
“the efficiency, sufficiency, and adequacy of the facilities provided
and the services rendered; the cost of providing such service and
the value of such service to the public; the ability of the utility to
improve such service and facilities; and energy conservation and
the efficient use of alternative energy resources.” § 366.041(1), Fla.
Stat. (2021). And the Legislature has made clear that “it is in the
public interest to promote the development of renewable energy
resources in this state.” § 366.91(1), Fla. Stat. (2021). Evidence
that these factors have been considered—where they are germane to
determining whether the settlement agreement is in the public
interest and results in rates that are fair, just, and reasonable—
permits meaningful judicial review of the Commission’s
conclusions.
The Commission can also consider non-statutory factors if it
explains why they are relevant and how they relate to the
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Commission’s “historical and statutory role.” Sierra Club, 243 So.
3d at 911. For example, in the order under review, the Commission
supported its decision by stating that “FPL’s residential 1,000 kWh
bill [is] projected to remain 21% below the current national average”
under the settlement agreement. Assuming that it can explain the
relevance of this metric in light of “the purpose of the Commission,”
id., the Commission can permissibly consider it in making its
decision.
C
In this case, after hearing from 60 witnesses and receiving 635
exhibits into evidence, the Commission produced an explanation of
its public interest determination that spanned little more than a
page. The order provides conclusory statements about the virtues
of the settlement agreement, not the reasoned explanation required
for our review. 13
13. Justice Francis says we have jurisdiction to review the
Commission’s “action[s],” not its orders. Francis dissenting op. at
42. Orders of the Commission “constitute agency action” for the
purposes of article V, section 3(b)(2) and section 366.10. City Gas
Co. of Fla. v. Fla. Pub. Serv. Comm’n, 501 So. 2d 580, 581 (Fla.
1987). And the Legislature defined “agency action,” as relevant
here, to mean “the whole or part of a[n] . . . order.” § 120.52(2), Fla.
Stat. (2021). Because an agency’s action “must be upheld, if at all,
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The Commission provided no indication that it considered the
statutory factors set out in sections 366.06(1) and 366.82(10).
Even a cursory statement of the Commission having weighed all of
these factors would be more than what we have here; our judicial
review, however, requires more: a statement of the Commission’s
reasons for deciding as it did in light of record evidence relevant to
each of these factors. See Citizens II, 213 So. 3d at 711 (“[T]o the
extent that agency action depends on nonrule policy, Section
120.68 requires its exposition as a credential of [the agency’s]
expertise and experience.”) (quoting McDonald, 346 So. 2d at 583);
§ 120.68(7)(e).
And while “the Commission is not required by statute or case
law to address each issue of disputed fact in its final order,”
Citizens I, 146 So. 3d at 1150, or to “resolve every issue
independently,” Sierra Club, 243 So. 3d at 914, it should provide at
least some written assessment of the parties’ main disagreements
on the basis articulated by the agency itself,” Motor Vehicle Mfrs.
Ass’n of U.S., Inc., 463 U.S. at 50, we look to the Commission’s
reasoning as expressed in its order, rather than try to discern it by
piecing together stray remarks found in the record or appellate
briefs.
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reflected in the record. The Commission should explain why it
reached its conclusions and how those conclusions factored into its
public interest determination. Here it did not.
On appeal, the Commission and FPL assure us that the
Commission’s decision was warranted considering the evidence in
the record. But it is not enough to point to the pile of paper
memorializing these proceedings and say, “It’s in there.” Instead,
the Commission must do the job with which the Legislature has
tasked it by showing, in its final order, how the paper in that pile
supports its decision. In other words, the Commission must show
that its decision results from the application of its “specialized
knowledge and expertise” to the facts here. Gulf Coast Elec. Coop.,
Inc., 727 So. 2d at 262. Only then can we ensure that the
Commission considered the relevant factors in light of the record
evidence when it made its decision without ourselves usurping the
Commission’s prerogatives by offering up a basis for the decision on
appeal that the Commission did not offer below. See Cent. Truck
Lines, Inc. v. King, 146 So. 2d 370, 373 (Fla. 1962) (“Were we to
uphold [the order under review], we would by such action invade
the legislative field, contra to our fundamental concept of three
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separate, distinct and independent branches of government.”); Sec.
& Exch. Comm’n v. Chenery Corp. (Chenery I), 318 U.S. 80, 88
(1943) (“If an order is valid only as a determination of policy or
judgment which the agency alone is authorized to make and which
it has not made, a judicial judgment cannot be made to do service
for an administrative judgment.”).
III
In our review of final agency action, we may remand a case for
further agency proceedings. See § 120.68(6)(a)1. On other
occasions, we have recognized our authority to remand cases to the
Commission when it “fail[s] to perform its duty to explain its
reasoning.” Citizens II, 213 So. 3d at 714; see Order at 3, LULAC,
No. SC2021-0303. Accordingly, we remand this matter to the
Commission for further proceedings consistent with our decision,
including, if the Commission shall determine that the settlement
agreement is in the public interest and fixes fair, just, and
reasonable rates in light of the statutory factors, a consideration of
the parties’ main disagreements reflected in the record. 14 From the
14. One such disagreement is whether the SolarTogether
program is unduly preferential to program participants in violation
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order we have, we cannot conclude that the Commission exercised
its discretion in accordance with the standards that the Legislature
has provided. See Int’l Truck & Engine Corp. v. Cap. Truck, Inc., 872
So. 2d 372, 374 (Fla. 1st DCA 2004) (“An agency action that is
arbitrary stands outside the range of discretion delegated to the
agency for purposes of review under section 120.68.”); § 120.68(7)(e)
(allowing for remand when an agency’s exercise of discretion,
among other things, was “[o]utside the range of discretion delegated
to the agency by law” or “[o]therwise in violation of a constitutional
or statutory provision”).
Subject to any statutory requirements, the form of the
proceedings on remand will be up to the Commission, including the
decision whether to allow the parties to present additional evidence.
It is so ordered.
MUÑIZ, C.J., and LABARGA and GROSSHANS, JJ., concur.
CANADY, J., dissents with an opinion, in which FRANCIS, J.,
concurs.
FRANCIS, J., dissents with an opinion.
of section 366.03. Whatever the Commission ultimately decides
with respect to whether the settlement agreement establishes rates
that are fair, just, and reasonable, an assessment of the
SolarTogether program would seem indispensable to a reasonable
resolution of the issues raised by the settlement agreement, and
whether it is in the public interest.
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SASSO, J., did not participate.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.
CANADY, J., dissenting.
I agree with Justice Francis that remand for further
proceedings is not required by the Commission’s failure to provide a
more expansive explanation of its decision to approve the settlement
agreement. As Justice Francis explains, nothing in section 120.68,
Florida Statutes (2021), or any other provision of Florida law gives
this Court the authority to remand for further proceedings simply to
require that the Commission elaborate on the reasons for the
decision it has rendered. The majority’s decision to remand here for
further explanation is inconsistent with the presumption of
correctness accorded orders of the Commission—which operates as
“an arm of the legislative branch of government,” § 350.001, Fla.
Stat. (2021)—and the concomitant burden placed on challengers to
establish based on the record and the law that the presumption is
defeated.
The Commission’s determination that the “[s]ettlement
provides a reasonable resolution of all issues raised, establishes
- 24 -
rates that are fair, just and reasonable, and is in the public
interest” is supported by competent, substantial evidence and has
not been shown to be affected by any legal error. I therefore would
affirm the Commission’s final order.
FRANCIS, J., concurs.
FRANCIS, J., dissenting.
The majority opinion, in my view, expands our judicial
authority over the Public Service Commission (Commission)—a
legislative creature—without textual authority to do so, and in the
process of so doing, invalidates an order that satisfies our current
precedent. For these reasons, I respectfully dissent.
I.
Citing federal administrative precedent for much of its
reasoning, majority opinion at 12-14, the majority has interpreted
section 120.68 of the Florida Administrative Procedure Act (Florida
APA)—titled “Judicial Review”—broadly to conclude that insufficient
explanation in a Commission’s order is per se absence of
consideration, and thus grounds for remand.
That’s a tortured reading that isn’t supported by the text of
section 120.68, which lays out when a court must remand a case.
- 25 -
In fact, far from explicitly requiring the Commission to make
exhaustive written findings, the statutory procedure for rate-making
only requires that the Commission consider the factors “to the
extent practicable.” § 366.06(1). 15 By choosing the word
“practicable,” the Legislature expressed that the Commission would
have to prioritize which portions of the settlement required detailed
findings and justification. Practicable, Black’s Law Dictionary (11th
ed. 2019) (“1. (Of a thing) reasonably capable of being
accomplished”); see also supra note 15. And the Legislature
declined to make the Commission’s prioritization of certain factors
or challenges to the settlement part of our review.
15. To be sure, there are circumstances in Florida
administrative law where an agency exceeds the range of its
discretion triggering a remand. For example, when a statute
empowers an administrative agency to decide one question and the
agency opines on subjects beyond that question’s scope, that
agency exceeds its discretion. See, e.g., Gugelmin v. Div. of Admin.
Hearings, 815 So. 2d 764 (Fla. 4th DCA 2002) (holding that
administrative law judge for the Neurological Injury Compensation
Association exceeded its statutory discretion when it went beyond
determining whether a claim was compensable and determined the
effect of its findings upon the claimant’s common law rights and
remedies). This example illustrates the plain meaning of the
provision the majority claims the Commission violated: an agency
strays outside of its discretion when it acts on an area of law not
authorized by the statute.
- 26 -
This is not an insignificant concern. The Legislature has
struck a balance between thoroughness and expedient decision-
making in the rate-making statute. That balance is reflected in the
procedural deadlines the Legislature imposed on the Commission
throughout chapter 366, Florida Statutes, to draft rate-making
orders and adjust rates in the interim to reimburse utilities for
incurred expenses. The Commission’s deadlines for taking agency
action under chapter 366 generally fall within 12 months, with
some deadlines being much shorter. 16 A 12-month timeframe is
16. See, e.g., § 366.06(3) (requiring that Commission deliver
notice of withholding consent within 60 days of a utility’s requested
rate increase, but mandating that withholding can last no longer
than 8 months; requiring that Commission take final action and
enter final order within 12 months of the commencement date for
final agency action; requiring that commencement date or
statement of deficiencies be determined within 30 days of receipt of
the utility’s application); § 366.06(4) (generally requiring that
Commission act within 5 months of the commencement of final
agency action unless protested; if protested, requiring Commission
to act within 8 months); § 366.071(2)–(3) (generally requiring that
Commission act within 60 days of a requested interim rate increase
or decrease); § 366.072 (requiring that rate adjustment orders be
reduced to writing within 20 days).
Another example of the Legislature’s balancing of practicality
and expediency: the Legislature established an entire provision and
docket—inaptly named the “fuel clause”—to expeditiously
compensate utilities for both fuel expenses and other cost recovery
methods while the rate agreement is still effective. See, e.g.,
Citizens of State v. Graham (Citizens II), 213 So. 3d 703, 714 (Fla.
- 27 -
considered by the Legislature to be an expedited timeframe in other
contexts. See, e.g., § 39.001(1)(h), Fla. Stat. (2023) (stating that one
of the purposes of Florida’s dependency system is to ensure “that
no child remains in foster care longer than 1 year.”); § 39.621(1),
Fla. Stat. (2023) (“Time is of the essence for permanency of children
in the dependency system. A permanency hearing must be held no
later than 12 months after the date the child was removed from the
home or within 30 days after a court determines that reasonable
efforts to return a child to either parent are not required, whichever
occurs first.”).
By substituting its judgment for the Commission’s in how to
weigh what portions of the settlement deserve thorough
explanation, the Court is in effect directly “substitut[ing] [its] policy
views for the Commission’s” as to what portions of the settlement
deserved greater attention and how to balance the Legislature’s
2017) (quoting In re Petition by Fla. Power & Light Co. to Recover
Scherer Unit 4 Turbine Upgrade Costs Through Env’t Cost Recovery
Clause or Fuel Cost Recovery Clause (Scherer Unit 4), No. PSC–11–
0080–PAA–EI, at 6, 2011 WL 339538 (Fla. P.S.C. Jan. 31, 2011)).
The fuel docket’s purpose “is to prevent regulatory lag . . . which
has historically been a problem for utilities because of the volatility
of fuel costs.” Id.
- 28 -
deadlines. See Order at 2, LULAC Fla. Educ. Fund, Inc. v. Clark, No.
SC2021-0303 (Fla. May 27, 2022) (remanding case to Commission);
§ 120.68(7)(e) (“[T]he court shall not substitute its judgment for that
of the agency on an issue of discretion.”). There is no statutory or
constitutional support for us to assume this role of project manager
for the Commission. Rather, “[w]e must assume that these agencies
will follow the mandates of the Constitution and the laws in the
discharge of their duties.” Odham v. Foremost Dairies, Inc., 128 So.
2d 586, 593 (Fla. 1961). Otherwise, our “[p]romiscuous
intervention . . . in the affairs of these administrative agencies . . .
w[ill] inevitably result in the dethronement of the commissions and
the substitution of the courts in their place and stead.” Id. I would
simply affirm.
Perhaps the broad interpretation of the Florida APA is
understandable when one considers that the majority relies heavily
on several federal administrative law cases interpreting the federal
APA’s broad judicial review statute. Majority op. at 10-15.
But the two are not the same. Unlike the Florida APA, the
federal APA expressly permits the courts broad authority to reverse
arbitrary and capricious decisions where the agency fails to give
- 29 -
adequate explanation in its orders. Compare 5 U.S.C. § 706(2)(A)
(2018) (“The reviewing court shall . . . (2) hold unlawful and set
aside agency action, findings, and conclusions found to be–(A)
arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law”), with § 120.68(7)(e) (limiting our Court’s
judicial review of an agency’s exercise of discretion to whether the
order was “1. Outside the range of discretion delegated to the
agency by law; 2. Inconsistent with agency rule; 3. Inconsistent
with officially stated agency policy or a prior agency practice, if
deviation therefrom is not explained by the agency; or 4. Otherwise
in violation of a constitutional or statutory provision”). Section
120.68(7) authorizes Florida courts to set aside “actions” if it finds
that the agency violates one of the specific grounds listed in
subsection (7) but lacks the same catch-all language in the federal
APA allowing federal courts to set aside actions “otherwise not in
accordance with the law.” 5 U.S.C. § 706(2)(A); see also § 120.68(8)
(“Unless the court finds a ground for setting aside, modifying,
remanding, or ordering agency action or ancillary relief under a
specified provision of this section, it shall affirm the agency’s
action.”).
- 30 -
These textual differences make the majority’s reliance on
federal administrative law principles misplaced. Florida courts have
recognized that “[s]mall definitional differences between the Florida
and federal acts . . . prevent too great a reliance on federal
decisions.” Dep’t of Corrs. v. McCain Sales of Fla., Inc., 400 So. 2d
1301, 1302 (Fla. 1st DCA 1981), superseded by ch. 91-30, § 3,
Laws of Fla.; see also 2 Fla. Jur. 2d Administrative Law § 6 (2022)
(“Due to small definitional differences between the Florida
Administrative Procedure Act and the analogous Federal Act,
Florida courts may not place too great a reliance on federal
decisions in construing the Act in particular cases.” (footnotes
omitted)).17 When Florida courts have looked to federal case law for
17. Florida courts have also explicitly and implicitly relied on
the principle that differences between the APAs prevent us from
heavily relying on federal caselaw when applying parts of the
Florida APA that have materially different federal counterparts.
See, e.g., Peden v. State Bd. of Funeral Dirs. and Embalmers, 189
So. 2d 526, 527 (Fla. 3d DCA 1966) (declining to adopt the federal
“substantial evidence” standard when Florida APA did not establish
a standard of review for agency decisions in favor of the Florida
common law rule); State, Dep’t of Env’t Regul. v. Falls Chase Special
Taxing Dist., 424 So. 2d 787, 799 (Fla. 1st DCA 1982) (Smith, C.J.,
dissenting) (arguing that there was neither need nor justification for
supplanting Florida’s firm exhaustion principle with the federal
import because of Florida’s “varied and abundant remedies for
administrative error”) (quoting State ex rel. Dep’t. of Gen. Servs. v.
- 31 -
guidance on an administrative principle, they have felt the need to
justify their reliance by holding that the relevant provisions amount
to one another. See Fla. Home Builders Ass’n, 412 So. 2d at 353
n.5 (“We believe that the standing requirement of this statute is so
similar to the ‘substantially affected’ requirement of section
120.56(1) that we are justified in looking to federal case law for
guidance in formulating our rule regarding associational standing
under section 120.56.”). Had the Legislature wanted the
Commission to address specific statutory factors in writing or face
remand, it could have said so as it has in several other contexts. 18
Willis, 344 So. 2d 580, 590 (Fla. 1st DCA 1977)). But see Fla. Home
Builders Ass’n v. Dep’t of Labor & Emp. Sec., 412 So. 2d 351, 353
n.5 (Fla. 1982) (applying the federal standing rule only because
both statutes recognized a form of associational standing).
18. See, e.g., § 775.21(3)–(5), Fla. Stat. (2023) (expressly
requiring a trial court to make written finding that an offender is a
sexual predator or a sexually violent offender); § 63.089(3), (5)–(7),
Fla. Stat. (2023) (expressly requiring written findings of fact in a (3)
final judgment terminating parental rights, (5) dismissal order, (6)
judgment terminating parental rights pending adoption, and (7)
order on relief from judgment terminating parental rights); §
61.075(3), Fla. Stat. (2023) (expressly requiring written findings of
fact in contested dissolution action addressing distribution of assets
and liabilities); § 61.30(1)(a), Fla. Stat. (2023) (expressly requiring
written findings when trier of fact orders payment of child support
that varies more than five percent from guideline amounts); §
985.255(2), (3)(b), Fla. Stat. (2023) (expressly requiring written
- 32 -
We know this because the Legislature previously empowered this
Court with the authority to remand as “seemed necessary and
proper” to establish an adequate record for review, accord the
parties their various rights, and to accomplish the purposes and
objective of the law that initiated the administrative proceeding; the
majority now claims this power absent this language. §
120.31(2)(a)-(d), Fla. Stat. (1967), repealed by ch. 74-310, § 4, Laws
of Fla. 19 And by extension, had the Legislature wanted to empower
findings to place juvenile offender in (2) secure detention when the
risk assessment instrument reflects secure detention inappropriate
or (3)(b) in more restrictive placement than the risk assessment
instrument states); § 61.08(8)–(9), Fla. Stat. (2022) (expressly
requiring written findings in awarding permanent alimony and in
justifying exceptional circumstances for leaving payor with
significantly less income than recipient); § 921.142(5), Fla. Stat.
(2023) (expressly requiring written findings on aggravators and
mitigators in death penalty cases). Our Court has engaged in this
type of comparative analysis before when reviewing other statutes.
See Cason v. Fla. Dep’t of Mgmt. Servs., 944 So. 2d 306, 315 (Fla.
2006) (“In the past, we have pointed to language in other statutes to
show that the Legislature ‘knows how to’ accomplish what it has
omitted in the statute in question.”) (citing Rollins v. Pizzarelli, 761
So. 2d 294, 298 (Fla. 2000)); see also Pizzarelli v. Rollins, 704 So. 2d
630, 633 (Fla. 4th DCA 1997) (looking to language in a different
statute to conclude that “[w]hen the Florida Legislature wishes to
provide for set-offs for future benefits it well knows how to express
itself”).
19. This textual difference also undermines the majority’s
only historic example of our Court remanding for an insufficient
- 33 -
us to remand administrative orders for failing to comprehensively
discuss the statutory factors, it would have said so.
But even assuming for the sake of argument there was not a
significant textual difference between the federal and state APAs, we
should hesitate to adopt federal administrative law principles in
reviewing the Commission’s order because of the structural
differences between the federal and state constitutions.
At the federal level, courts are tasked with ensuring that
administrative agencies—which are part of the executive branch—
comply with the Legislature’s requirements to properly exercise
wholly legislative power. See Elena Kagan, Presidential
Administration, 114 Harv. L. Rev. 2245, 2269–72 (2001) (describing
explanation, Greyhound Lines, Inc., S. Greyhound Lines Div. v.
Mayo, 207 So. 2d 1, 4-5 (Fla. 1968), since the statute at the time
empowered us to do so (and the orders at issue in Greyhound Lines
lacked any factual findings). See majority op. at 13 note 12 (citing
Greyhound Lines, 207 So. 2d at 4-5); Greyhound Lines, 207 So. 2d
at 5 (“The orders here under attack were totally devoid of any
factual findings. The respondent concludes that the public
convenience and necessity justify its order but it fails to tell us how
or why.”) (relying on § 120.25(8), Fla. Stat. (1967), repealed by ch.
74-310, § 4, Laws of Fla.); see also § 120.31(2)(a)–(d), Fla. Stat.
(1967), repealed by ch. 74-310, § 4, Laws of Fla. (authorizing broad
judicial review of agency action).
- 34 -
federal court’s role as largely enforcing the mechanisms by which
federal agencies make decisions); see also Motor Vehicle Mfrs. Ass’n
of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)
(“The scope of review under the ‘arbitrary and capricious’ standard
is narrow and a court is not to substitute its judgment for that of
the agency. Nevertheless, the agency must examine the relevant
data and articulate a satisfactory explanation for its action”
(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156,
168 (1962))). Yet even federal courts will “uphold a decision of less
than ideal clarity if the agency’s path may reasonably be discerned.”
Motor Vehicle Mfrs. Ass’n of U.S., Inc., 463 U.S. at 43 (quoting
Bowman Transp. Inc. v. Arkansas-Best Freight Sys., 419 U.S. 281,
286 (1974)).
But in Florida, the Commission is a legislative creature. §
350.001 (“The Florida Public Service Commission has been and
shall continue to be an arm of the legislative branch of
government.”). And this Court has expressly held that the
Commission is not part of the executive branch. See Chiles v. Pub.
Serv. Comm’n Nominating Council, 573 So. 2d 829, 832 (Fla. 1991)
(rejecting assertion that Commission is an entity of the executive
- 35 -
branch and finding that Commission “is an entity of the legislative
branch and, as such, the legislature has the authority to establish
by law how legislative branch officials, including these Public
Service Commission members, may be selected”).
That is why the role of our Court and federal courts
fundamentally differ when dealing with our respective
administrative processes. Federal courts are tasked with ensuring
an executive agency is not usurping legislative power by failing to
obey congressional procedures. Motor Vehicle Mfrs. Ass’n of U.S.,
Inc., 463 U.S. at 43 (“[T]he agency must examine the relevant data
and articulate a satisfactory explanation for its action including a
‘rational connection between the facts found and the choice made.’ ”
(quoting Burlington Truck Lines, Inc., 371 U.S. at 168)). Our Court
is not tasked—either by legislative request or constitutional
structure—with the same need to provide oversight and maintain
compliance to prevent executive overreach. Rather, our role—as
defined by statute and our constitutional system—is to verify that
the Commission does not stray outside the bounds of its defined
authority as the Legislature’s rate-making body. See Odham, 128
So. 2d at 592-93 (“The courts have been extremely reluctant to
- 36 -
interfere with the actions of such bodies in the proper performance
of their duties and responsibilities in the absence of a clear and
unmistakably flagrant violation of a constitutional or statutory
right of the affected party.”) (emphasis added). Because we do not
act as a neutral arbiter between two co-extensive branches of
government in our scheme, we should recognize that federal
administrative principles do not fit the Florida administrative law
system. 20
20. The majority expresses an understandable concern that
our Court would be abdicating a core judicial responsibility by not
remanding this order. See majority op. at 11 note 11 (“Our
dissenting colleagues are correct that the Commission is an ‘arm of
the legislative branch of government,’ . . . but it does not follow
from that observation that we can wash our hands of the judicial
review that is our constitutional responsibility . . . .”). But
respectfully, the bounds of our constitutional responsibility are
established by the Florida Constitution’s text and the Legislature’s
stated scope of review. Nowhere in the Constitution nor in the
phrase “[o]utside the range of discretion delegated to the agency by
law” is the power to remand for an unsatisfyingly terse order. §
120.68(7)(e). Our Legislature’s choice to curtail our authority in the
judicial review statute nearly fifty years ago undermines this
sullying of our hands by plowing the deeply rooted balance the
Legislature has established in the face of textual evidence to the
contrary. § 120.31, Fla. Stat. (1967), repealed by ch. 74-310, § 4,
Laws of Fla.
- 37 -
Instead, it appears to me that with today’s opinion, the
majority has imposed additional requirements on the Legislature’s
own subordinate body, becoming, in essence, the Commission’s
project manager. In doing so, the majority upsets a legislatively
weighed balance between detail and expediency set out in the
Commission’s authorizing statute and the Florida APA. See
§ 366.06(1) (requiring that the Commission consider the factors in
the statute “to the extent practicable”) (emphasis added); see also
§ 120.569(2)(m) (requiring that findings of fact “be accompanied by
a concise and explicit statement of the underlying facts of record
which support the findings”). The majority’s efforts are not made in
service to the language of some constitutional or statutory
command, but to ease the troublesomeness on our review. See art.
V, § 3(b)(2), Fla. Const. (limiting our jurisdiction to review “action of
statewide agencies relating to rates or service of utilities providing
electric, gas, or telephone service” to that provided by the
Legislature through general law); see also Ocala Breeders’ Sales Co.,
Inc. v. Fla. Gaming Ctrs., Inc., 731 So. 2d 21, 25 (Fla. 1st DCA
1999), aff’d, 793 So. 2d 899 (Fla. 2001) (“The legislature has broad
- 38 -
discretion to establish statutory classification schemes in general
laws.”).
Stepping into the Legislature’s province demands far more
constitutional support than the majority provides.
In short, neither party challenging this order can show the
Commission departed from the Florida APA’s essential
requirements. 21 The majority’s claim of authority to remand on
these grounds rests on federal principles that overlook the
significant textual and conceptual differences between the federal
and Florida administrative states. Remanding here is an unwise
incursion into the Legislature’s role to mandate standards for the
Commission and supervise the rate-making process.
21. Even if the majority is in effect abrogating the rule that
agencies need not discuss every statutory factor and all contested
issues in orders on settlements—a reversal brought on in part by
the majority’s overly broad understanding of review—we should be
more transparent about the novelty of our demand. See Sierra Club
v. Brown, 243 So. 3d 903, 912 (Fla. 2018) (holding that requiring
the Commission to expound on every issue “would convert a short
order into a boundless tome, despite the fact that the Commission
found the settlement agreement to be in the public interest—a
finding . . . afford[ed] great deference.”). Otherwise, we subject the
Commission to a perpetual Sisyphean fate of rolling its orders up
our hill praying that it has complied with our previously stated
standard, only for us to roll its order back down on remand.
- 39 -
II.
Finally, our precedent cloaks the Commission’s orders with a
presumption of correctness and an assumption that the agency
considered all relevant statutory factors—absent evidence to the
contrary. See W. Fla. Elec. Coop. Ass’n, Inc. v. Jacobs, 887 So. 2d
1200, 1204 (Fla. 2004) (“Commission orders come to this Court
clothed with the presumption that they are reasonable and just.”).
“To overcome these presumptions, a party challenging an order of
the Commission on appeal has the burden of showing a departure
from the essential requirements of law and the legislation
controlling the issue, or that the findings of the Commission are not
supported by competent, substantial evidence.” S. All. for Clean
Energy v. Graham, 113 So. 3d 742, 752 (Fla. 2013) (quoting Crist v.
Jaber, 908 So. 2d 426, 430 (Fla. 2005)).22
In concluding that the Commission unlawfully exceeded its
discretion, the majority focuses on the Commission’s failure to
22. I agree with the majority that this presumption of validity
does not accord the Commission a “rubber stamp” from the
Legislature or this Court. Majority op. at 13 note 12. I disagree,
however, with my respected colleagues that finding the
Commission’s order violated the APA is within the conditions
defined by statute. As I stated before, the Legislature has curtailed
- 40 -
discuss two of the enumerated statutory factors provided in the
statute. See majority op. at 20 (citing §§ 366.06(1), 366.82(10)); see
also § 120.68(7)(e) (providing that a court may remand an agency
order when “[t]he agency’s exercise of discretion was: 1. Outside the
range of discretion delegated to the agency by law”). Embedded
throughout the majority’s opinion is an implicit dissatisfaction with
the order’s terseness. I get it. 23
the scope of our review of agency orders over the past fifty years.
See supra note 20 and accompanying text. Remanding to force the
Commission to produce a more comprehensive order than
demanded by law vitiates the presumption of consideration—it
unfairly punishes the agency for failing to guess that more is
required of it than law or precedent demand. See supra note 20.
Put another way, how are we fairly presuming the Commission’s
order was valid when the agency is unaware that we employ stricter
standards than those demanded by statute or precedent? The
Commission can only rely on the statutory language and our
precedents interpreting that language.
23. Though, one could argue that the Commission’s decision
to spend most of its order focusing on statutory support for various
parts of the settlement was a rational response to Appellants’
arguments before the Commission. Appellants challenged the
Commission’s statutory authority to approve a variety of cost
recovery mechanisms in the proposed settlement. See majority op.
at 2 note 2 (detailing the various challenges to the Commission’s
statutory authority that the majority rejects as meritless). If this
Court had found any of those arguments persuasive (the majority
did not, see majority opinion at 2 note 2), major elements of the
settlement would have been invalidated as beyond the scope of the
Commission’s discretion. See, e.g., supra note 15. It is possible the
- 41 -
But article V, section 3(b)(2) gives us jurisdiction to review
agency “action.” See also § 366.10. Though the agency’s “action” is
memorialized by an order, we are at bottom reviewing what the
agency does, not how detailed its order is. To do otherwise is
simply elevating form over substance. 24
Commission assessed the threat of losing authority to properly
reimburse utilities for grid improvements as a grave threat to the
proper functioning of the Florida utility system. This threat was
also heightened since the Commission recently lost any deference to
its interpretation of its statutory authority, as reflected in the
Appellants’ argument here. See art. V, § 21, Fla. Const. (eff. Nov. 6,
2018).
24. The majority characterizes this portion of my opinion as
defining the Court’s jurisdiction “to review the Commission’s
‘action[s],’ not its orders.” Majority op. at 19 note 13 (emphasis
added). This is simply a misreading of the text above. Recognizing
our review touches not just the text of the written order but also
how the agency arrived at that order does not exclude orders from
our review. And clearly, we do not review an order alone to
determine whether an agency has complied with the statute; else
the Legislature would have used “agency action” rather than
“exercise of discretion” when authorizing us to remand agency
action. See § 120.68(7)(e) (“(7) The court shall remand a case to the
agency for further proceedings . . . when it finds that: (e) The
agency’s exercise of discretion was 1. Outside the range of discretion
delegated to the agency by law.”) (emphasis added)). Nor would the
Florida APA have included reviewing whether hearings were held
before final agency action; whether the action was supported by
competent, substantial evidence during hearings; whether the
fairness of the proceeding was impaired by a material error; or
whether the agency misinterpreted law that compelled a particular
- 42 -
And the failure to discuss these two factors does not translate
to the Commission failing to consider the relevant statutory factors
sufficient to impair “[t]he fairness of the proceedings or the
correctness of the action” below. § 120.68(7)(c); see also § 366.06(1)
(requiring the Commission’s consideration “to the extent
practicable”); Consider, Webster’s Third New International Dictionary
(1966 ed.) (“1. to reflect on: think about with a degree of care or
caution . . . 2. to think of, regard, or treat in an attentive, solicitous,
or kindly way . . . 4. to think of: come to view, judge, or classify.”). 25
To the contrary, the Commission’s consideration of all the
statutory factors was shown by the admission of extensive evidence
during the administrative process, and discussion of most statutory
factors in its order. And FPL pointed to the record evidence in this
appeal proving the settlement was in the public interest. Although
action if the order was the sole concern of the Legislature. See §
120.68(7)(a)-(e).
25. Perhaps the Commission would have to provide a more
thorough order were we reviewing the Commission’s interpretation
of a rule or statute de novo under article V, section 21 of the Florida
Constitution. But it is clear the Commission’s order is entitled to
deference based on well-settled law. Jacobs, 887 So. 2d at 1204;
Odham, 128 So. 2d at 592-93.
- 43 -
the portion of the order discussing the public interest is terse, the
nearly 70,000 pages of record evidence establishes that the
Commission thoroughly considered considerable information in
coming to its decision that the factors justified the settlement order.
Indeed, this order resembles orders this Court affirmed in
Citizens I and Sierra Club; if anything, the Commission’s order here
provides more of an explanation as to why it considers the
settlement to be in the public interest. Citizens of State v. Fla. Pub.
Serv. Comm’n (Citizens I), 146 So. 3d 1143, 1153 (Fla. 2014)
(discussing the Commission’s final order and quoting fewer than
200 words of findings); Sierra Club, 243 So. 3d at 914 (affirming the
final order because the order “discussed the major elements of the
settlement agreement and explained why it was in the public
interest” without further analysis or discussion of the order). Even
the order at issue in LULAC, where we remanded for additional
explanation, failed to meaningfully discuss the main challenge to
the sole program at issue in that case (Clean Energy Connection)
rather than a comprehensive rate setting order like the one here.
Order at 1-3, LULAC, No. SC2021-0303.
- 44 -
By all the benchmarks established by our case law and the
statute, the agency provided enough support and explanation for us
to review the settlement and determine that the proceeding was fair
and the order correct. § 120.68(7)(c). I therefore fail to see how
remanding this matter will enable more meaningful review than the
record already before us.
Further, we are to affirm “[u]nless the court finds a ground for
setting aside, modifying, remanding, or ordering agency action or
ancillary relief under a specified provision of this section . . . .”
§ 120.68(8) (emphasis added). Remanding because an order lacks
our unclear preferred amount of detail doesn’t satisfy this statutory
mandate.
I respectfully dissent.
An Appeal from the Florida Public Service Commission
John Thomas LaVia, III and Robert Scheffel Wright of Gardner, Bist,
Bowden, Dee, LaVia, Wright, Perry & Harper, P.A., Tallahassee,
Florida,
for Appellant Floridians Against Increased Rates, Inc.
Bradley Marshall and Jordan Luebkemann of Earthjustice,
Tallahassee, Florida,
- 45 -
for Appellants Florida Rising, League of United Latin American
Citizens, and Environmental Confederation of Southwest
Florida
Keith C. Hetrick, General Counsel, Samantha M. Cibula, Attorney
Supervisor, and Douglas D. Sunshine, Senior Attorney, Florida
Public Service Commission, Tallahassee, Florida,
for Appellee Florida Public Service Commission
Stuart Singer and Pascual A. Oliu of Boies Schiller Flexner LLP,
Fort Lauderdale, Florida; Jason Gonzalez and Amber Stoner
Nunnally of Lawson, Huck, Gonzalez, PLLC, Tallahassee, Florida;
Daniel E. Nordby of Shutts & Bowen LLP, Tallahassee, Florida; and
John T. Burnett, Maria Jose Moncada, and Joel Baker of Florida
Power & Light Company, Juno Beach, Florida,
for Appellee Florida Power & Light Company
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