FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
Appeal from the Florida Public Service Commission
Moyle, Jr. and Karen Putnal of Moyle Law Firm, P.A.,
Tallahassee, Florida, for Appellant
C. Hetrick, General Counsel, Samantha M. Cibula, Attorney
Supervisor, and Adria E. Harper, Senior Attorney, Florida
Public Service Commission, Tallahassee, Florida, for Appellee
Florida Public Service Commission
María José Moncada and William P. Cox, Florida
Power & Light Company, Juno Beach, Florida; and Alvin B.
Davis of Squire Patton Boggs (US) LLP, Miami, Florida, for
Appellee Florida Power & Light Company
case is before the Court on appeal from a decision of the
Florida Public Service Commission relating to the rates or
service of a public utility providing electric service. We
have jurisdiction. See art. V, § 3(b)(2), Fla.
Const. The Commission approved a request made by Florida
Power and Light (FPL) for the recovery of costs through base
rates for four solar energy centers expected to be in service
by December 31, 2017, and for four solar energy centers
expected to be in service by March 1, 2018. These solar
energy projects (So) for which a base rate adjustment (BRA)
was approved are collectively referred to as the SoBRA
projects. In granting FPL's request, the Commission
concluded that the SoBRA projects comported with the terms of
a 2016 settlement agreement providing for recovery of these
costs and that the projects were cost effective. Because we
agree that the SoBRA projects met the terms set forth in the
settlement agreement for cost recovery, we affirm the
starting point of this case is in 2016, when FPL filed a
petition with the Commission for an increase in base rates.
Florida Industrial Power Users Group (FIPUG) and eight other
parties intervened in the rate case. Prior to the Commission
rendering its decision on FPL's petition, a settlement
was reached between FPL and three of the nine intervening
parties-not including FIPUG. The settling parties then filed
a motion for approval of the settlement agreement, which they
asserted resolved all of the issues in the rate case. In
addition to resolving all of the underlying issues in the
pending rate case, section 10 of the settlement agreement
included provisions allowing FPL to recover costs for certain
solar projects if the projects met certain capacity
requirements and in-service dates and were demonstrated to
the Commission to be cost effective. The Commission
summarized the requirements provided in the settlement
agreement for recovery of the costs of the SoBRA projects as
There are several conditions that must be met for recovery in
this case. First, FPL must request recovery for these
projects during the term of the 2016 Agreement, or prior to
December 31, 2020. Second, the cost of the components,
engineering, and construction for any solar project is capped
at $1, 750 per kilowatt alternating current (kWac). Third,
for projects less than 75 MW (as are all of the projects
proposed in this case): 1) the request for base rate recovery
must be filed in the Fuel Clause docket as part of its final
true-up filing; and 2) the issues are "limited to the
cost effectiveness of each such project (i.e., will the
project lower the projected system CPVRR [(cumulative present
value revenue requirement)] as compared to each CPVRR without
the solar project) and the amount of revenue requirements and
appropriate percentage in base rates needed to collect the
estimated revenue requirements." If the project meets
these requirements, the terms of the 2016 Agreement have been
re Fuel & Purchased Power Cost Recovery Clause with
Generating Performance Incentive Factor, Order No.
PSC-2018-0028-FOF-EI at 8, 2018 WL 367863 (Fla. Pub. Serv.
Comm'n Jan. 8, 2018) (footnote omitted) ("final
order"); see also In re Petition for Rate Increase
by Florida Power & Light Co., Order No.
PSC-16-0560-AS-EI at 2-3, 2016 WL 7335779, at *2 (Fla. Pub.
Serv. Comm'n Dec. 15, 2016) ("settlement
FIPUG was not a signatory to the settlement agreement, it was
given the opportunity to participate in the evidentiary
hearing on the settlement agreement but chose to take no
position on it and did not present any testimony or other
evidence opposing it. The Commission ultimately approved the
settlement agreement on December 15, 2016, concluding
"that the Settlement Agreement establishes rates that
are fair, just, and reasonable and is in the public
interest." In re Petition for Rate Increase by
Florida Power & Light Co., Order No.
PSC-16-0560-AS-EI at 5, 2016 WL 7335779, at *3.
did not appeal the settlement order, but Sierra Club, another
party to the rate case who was also not a signatory to the
settlement agreement, did oppose certain provisions of the
agreement and appealed the settlement order. See Sierra
Club v. Brown, 243 So.3d 903 (Fla. 2018). We affirmed
the settlement order in Sierra Club, concluding that
the Commission applied the appropriate public interest
standard in its consideration of the settlement agreement and
that the Commission's decision to approve the settlement
agreement was supported by competent, substantial evidence.
Id. at 913, 916. We also noted in Sierra
Club that "an independent express prudence finding
was not a prerequisite to a public interest finding . . . and
there was no need for the Commission to make an express
individual prudence determination." Id. at 913.
March 2017, in accordance with the settlement order, FPL
filed its Petition for Approval of Solar Base Rate
Adjustments (solar petition) in the Fuel and Purchased Power
Cost Recovery Clause docket (fuel docket), in which it
requested an increase in base rates to recover costs for the
SoBRA projects. FPL asserted that the 2017 and 2018 SoBRA
projects were cost effective under the settlement agreement
because they lowered the system CPVRR in 2017 and 2018 and
the cost for each center fell below the $1, 750 per kWac cap.
FPL asked the ...