IN THE SUPREME COURT OF FLORIDA

Transcription

1 Filing # E-Filed 12/28/ :19:42 PM IN THE SUPREME COURT OF FLORIDA CASE NO. IN RE: FLORIDA POWER & LIGHT COMPANY, L.T. Case Nos.: 3D , 3D , 3D , 3D Petitioner, RECEIVED, 12/28/ :23:26 PM, Clerk, Supreme Court vs. MIAMI-DADE COUNTY, et al., Respondents. / PETITION FOR DISCRETIONARY REVIEW OF A DECISION OF THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT PETITIONER S BRIEF ON JURISDICTION Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida Tel: (850) Peter C. Cunningham Florida Bar No PeterC@hgslaw.com Brooke E. Lewis Florida Bar No BrookeL@hgslaw.com Mohammad O. Jazil Florida Bar No White & Case LLP Southeast Financial Center 200 S. Biscayne Blvd. Suite 4900 Miami, Florida Tel: (305) Fax: (305) Raoul G. Cantero Florida Bar No rcantero@whitecase.com T. Neal McAliley Florida Bar No nmcaliley@whitecase.com Zachary B. Dickens Florida Bar No zdickens@whitecase.com Holland & Knight LLP 701 Brickell Ave. Suite 3300 Miami, Florida Tel: (305) Rodolfo Sorondo, Jr. Florida Bar No Counsel for Petitioner, Florida Power & Light Company Florida Power & Light Company 700 Universe Blvd. Juno Beach, Florida Tel: (561) Peter Cocotos Florida Bar No peter. cocotos@fpl.com AMERICAS

2 In Re: Power & Light Company vs. Miami-Dade County, et al. TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF AUTHORITIES... ii INTRODUCTION AND JURISDICTIONAL STATEMENT... 1 STATEMENT OF THE CASE AND FACTS... 1 ARGUMENT... 3 I. THE OPINION EXPRESSLY AND DIRECTLY CONFLICTS WITH A PRIOR DECISION OF THIS COURT... 3 II. THE OPINION EXPRESSLY AFFECTS A CLASS OF CONSTITUTIONAL OR STATE OFFICERS... 7 III. THIS COURT SHOULD ACCEPT JURISDICTION TO CLARIFY THE POWERS OF THE SITING BOARD AND THE PSC AND TO STABILIZE THE LAW RELATING TO POWER PLANTS... 9 CONCLUSION CERTIFICATE OF SERVICE AMERICAS i

3 TABLE OF AUTHORITIES CASES Page(s) Fla. State Bd. of Health v. Lewis, 149 So. 2d 41 (Fla. 1963)... 9 Fla. Power Corp. v. Seminole Cty., 579 So. 2d 106 (Fla. 1991)...passim Spradley v. State, 293 So. 2d 697 (Fla. 1974)... 8 Union Elec. Co. v. City of Crestwood, 499 S.W.2d 480 (Mo. 1973) Wallace v. Dean, 3 So. 3d 1035 (Fla. 2009)... 5 STATUTES AND RULES Fla. Stat Fla. Stat (1)... 4, 5, 6, 7 Fla. Stat Fla. Stat Fla. Stat , 6 Fla. R. App. P (a)(2)(A)... 7 OTHER AUTHORITY Art. III, 4, Fla. Const Art. V, 3(b)(3), Fla. Const Art. VIII, 1(e), Fla. Const Ch , 13, Laws of Fla... 6 AMERICAS ii

4 In re: Investigation into the cost-effectiveness of underground electric utility lines, PSC Order No A (1990)... 6 AMERICAS iii

5 In Re: Power & Light Company vs. Miami-Dade County, et al. INTRODUCTION AND JURISDICTIONAL STATEMENT This case concerns approval of siting for a regulated Florida public utility s proposed new electrical generating nuclear units and associated transmission lines. The Third DCA overturned a decision of the Governor and Cabinet, sitting as the Power Plant Siting Board, and held that the Board had the authority to require that the utility s transmission lines be installed underground. That decision expressly and directly conflicts with this Court s decision in Florida Power Corp. v. Seminole County, 579 So. 2d 106 (Fla. 1991), which held that such regulatory authority belongs exclusively to the Public Service Commission ( PSC ). The decision also affects the powers of the Siting Board, the PSC, and local government entities that apply land-use regulations to construction of transmission lines, pipelines and other linear facilities. Together these entities constitute two separate classes of constitutional or state officers. STATEMENT OF THE CASE AND FACTS 1 This case involves siting approval for two new 1,100-megawatt nuclear generating units in Miami-Dade County, at the Turkey Point Power Plant owned by Petitioner Florida Power & Light Company ( FPL ), along with 89 miles of transmission lines needed to supply electricity to millions of South Florida consumers. In accordance with the Florida Electrical Power Plant Siting Act 1 The facts are taken from the Third DCA s opinion, which is attached as the Appendix. A. # refers to the page number of the Appendix. AMERICAS

6 ( PPSA ), which governs certification of new power plants and associated facilities, FPL submitted a site certification application to the Florida Department of Environmental Protection ( DEP ) (A. 7). During the evidentiary hearing before an administrative law judge ( ALJ ), several local governments protested the proposed transmission lines based on aesthetic concerns (A. 7-8). The local governments contended that the Siting Board had the power to order FPL to install its transmission lines underground (A. 14). The ALJ s recommended order approved the project without requiring underground construction of the proposed transmission lines (A. 8-9). After considering numerous exceptions to the recommended order, the Siting Board adopted it in a Final Order, which recognized that the requesting entity typically absorbs the incremental costs of constructing transmission lines underground for aesthetic reasons (A. 9). As did the ALJ, the Siting Board concluded that it lacked the authority to require FPL to install the transmission lines underground at far greater cost to FPL and its ratepayers (Id.). On appeal, the Third DCA reversed. The court concluded that the general grant of power provided in section of the PPSA to impose conditions on certification authorized the Siting Board to require FPL to install transmission lines AMERICAS

7 underground at FPL s expense (A. 14). 2 The court rejected FPL s argument that Seminole County prohibited the Siting Board from requiring FPL to install its transmission lines underground (A ). Rather, it concluded that the Siting Board s power in no way infringes on the PSC s authority with regard to ratemaking, and there is no conflict with the PSC s role (A. 18). It remanded the case to the Siting Board for further proceedings (A. 28). ARGUMENT I. THE OPINION EXPRESSLY AND DIRECTLY CONFLICTS WITH A PRIOR DECISION OF THIS COURT The Third DCA reversed the Siting Board s conclusion that it lacked the power to require FPL to install its transmission lines underground, holding that the PPSA s general grant of power to the Siting Board to impose conditions and site specific criteria, standards, or limitations on certification authorizes it to require FPL to install transmission lines underground at FPL s expense (A ). That holding expressly and directly conflicts with this Court s holding in Seminole County. In that case, the County and the City of Lake Mary decided to widen a road with power lines along a right of way maintained by Florida Power Corporation ( FPC ). 579 So. 2d at 106. The City and the County both enacted ordinances that effectively required FPC to relocate the power lines underground at 2 The Court reversed on other grounds as well, concluding that the Siting Board failed to apply applicable local land development regulations and erred in treating Miami-Dade County s East Everglades Ordinance as a zoning regulation (A. 2). AMERICAS

8 FPC s and its customers expense. Id. FPC sued the City and the County, seeking to enjoin enforcement of the ordinances. Id. Among other things, FPC argued that similar ordinances would follow and that the aggregate cost of burying all of its lines would exceed $2 billion. Id. The trial court upheld the ordinances. Id. On appeal (after the Fifth DCA passed through jurisdiction), this Court explained that section (1), Florida Statutes, expressly confers jurisdiction on the [PSC] to regulate and supervise each public utility with respect to its rates and service and that the PSC s jurisdiction shall be exclusive and superior to that of all... municipalities... or counties, and, in case of conflict therewith, all lawful acts, orders, rules, and regulations of the commission shall in each instance prevail. Seminole Cty., 579 So. 2d at 106. This Court added that the PSC has broad powers in the exercise of its exclusive and superior jurisdiction. Id. at (citing , Fla. Stat.). Applying these statutes, the Court concluded that [r]equiring FPC to place its power lines underground clearly affects its rates if not its service. Id. at 107 (emphasis added). The Court continued: As with any other regulated public utility, FPC is entitled to charge rates sufficient to make a reasonable rate of return. If FPC has to expend large sums of money in converting its overhead power lines to underground, these expenditures will necessarily be reflected in the rates of its customers. We believe that the jurisdiction of the [PSC] to regulate rates and services of public utilities preempts the authority of the city and county to require FPC to place its lines underground. AMERICAS

9 Id. (citations omitted). This Court invalidated the ordinances requiring FPC to install its overhead power lines underground. Id. at 108. Seminole County s holding applies equally here. The PSC s jurisdiction regarding rates and services of public utilities is exclusive and superior to that of all other state actors listed in section (1) which includes not only counties and cities, but also all other boards, agencies, and political subdivisions. 579 So. 2d at 106. Moreover, requiring a public utility to install transmission lines underground falls within the exclusive jurisdiction of the PSC. Id. Thus, only the PSC has the power to direct a public utility to install transmission lines underground. Id. In contrast, the Third DCA holds that the Siting Board also has the power to require a public utility to install its transmission lines underground (A. 18) (holding that the Siting Board s power to require FPL to bury transmission lines in no way infringes on the PSC s authority with regard to rate-making, and there is no conflict with the PSC s role. ). The Third DCA attempts to distinguish Seminole County. First, it states that Seminole County said nothing... regarding whether undergrounding may be required as a condition of certification in the licensing of a transmission line corridor (A. 18). But an express and direct conflict need not involve identical facts. See Wallace v. Dean, 3 So. 3d 1035, 1039 (Fla. 2009). Seminole County held that the PSC has broad powers in the exercise of its exclusive and superior AMERICAS

10 jurisdiction and that other state actors listed in section (1), which includes boards like the Siting Board, are preempted from ordering public utilities to bury transmission lines at the utility and its customers expense. 579 So. 2d at And unlike the ordinances at issue in Seminole County, in this case section warns that the PPSA shall not affect in any way the ratemaking powers of the [PSC]. Yet unlike Seminole County, the Opinion holds that the Siting Board is not preempted from requiring the underground installation of transmission lines. Thus, the Opinion stands in express and direct conflict with Seminole County. The Third DCA also found Seminole County distinguishable because the Supreme Court s determination regarding the [PSC] was based on statutory language that the Legislature has since deleted from this section (A. 18). But while this Court did cite to such language, its discussion began well after its discussion of PSC preemption. 579 So. 2d at Further, this Court began its discussion of the language with the phrase, if there was any doubt, indicating its reliance on that language as mere additional not primary support. Id. at 108. And the Legislature deleted the language as obsolete after the PSC made the statutorily required determination and report as to cost-effectiveness not to change the PSC s authority. Ch , 13, Laws of Fla.; In re: Investigation into the cost-effectiveness of underground electric utility lines, PSC Order No A (1990). AMERICAS

11 Finally, the Third DCA attempts to distinguish Seminole County by noting that the Seminole holding was made in the context of rate-making with regard to the power vested in the [PSC] and not in the context of any of the Siting Board s powers (A. 18). Seminole County, like this case, was not a rate-making case. Such a case would necessarily involve a direct appeal from the PSC. See , Fla. Stat. The PSC participated in Seminole County as an amicus curiae. Rather, both cases address whether a state actor other than the PSC may direct a public utility to place its transmission lines underground. In Seminole County, this Court invalidated the ordinances of two state actors because undergrounding clearly affect[ed] [FPC s] rates if not its service, and therefore such decisions were preempted by the PSC s exclusive jurisdiction. 579 So. 2d at 107. The Third DCA reached the contrary conclusion that the Siting Board, a similarly situated state actor under section (1), has the power to require FPL to install transmission lines underground; and that such power in no way infringes on the PSC s authority with regard to rate-making (A. 18). Therefore, the Opinion expressly and directly conflicts with this Court s holding in Seminole County. II. THE OPINION EXPRESSLY AFFECTS A CLASS OF CONSTITUTIONAL OR STATE OFFICERS This Court also has jurisdiction under article V, section 3(b)(3) and rule 9.030(a)(2)(A)(iii) because the Opinion expressly affects two separate classes of constitutional or state officers. Decisions affect a class of constitutional and state AMERICAS

12 officers when they directly and, in some way, exclusively affect the[ir] duties, powers, validity, formation, termination or regulation. Spradley v. State, 293 So. 2d 697, 701 (Fla. 1974). The Opinion affects the powers of the Siting Board, the PSC, and local governments. Together these entities constitute two separate classes of constitutional or state officers. The Opinion affects the powers of the Siting Board. It holds that the PPSA gives the Siting Board the power to impose the condition of requiring that the power lines be installed underground, at FPL s expense (A ) (emphasis added). The Opinion also affects the powers of the PSC. 3 Seminole County held that the PSC s jurisdiction to regulate the rates and services of public utilities preempts the authority of other state actors from requiring public utilities to bury their transmission lines at the utility s expense. 579 So. 2d at 107. Thus, the Third DCA s conclusion that the Siting Board also has that power directly affects the PSC s jurisdiction, duties, and powers. Collectively, the Siting Board and the PSC constitute a class of constitutional and state officers that, according to the Third DCA, separately and independently exercise the identical power to require utilities to underground transmission lines at the utility s expenses. 3 The PSC, a statutorily created five-member commission, is a state officer for purposes of this Court s jurisdiction. See , Fla. Stat. An entire chapter of the Florida Statutes governs its operation and the Legislature has explained that the PSC has been and shall continue to be an arm of the legislative branch of government , Fla. Stat. AMERICAS

13 Finally, the Opinion held that local land-use regulations applicable throughout the 67 counties and 410 municipalities of the state apply to the installation of transmission lines under the PPSA (A ). That holding affects the powers of all local governments that must now apply their land-use regulations to previously excluded linear facilities, including transmission lines, pipelines and other linear facilities. The Siting Board and local governments constitute a class because they must separately and independently exercise [the] identical powers of applying land-use regulations to facilities previously excluded from such regulation. Fla. State Bd. of Health v. Lewis, 149 So. 2d 41, 43 (Fla. 1963). Both members of the Siting Board and of city and county commissions are constitutional officers. Art. III, 4, Fla. Const.; Art. VIII, 1 (e) (referring to county commissioners) and 2(b) (referring to a municipal legislative body ); see also Lewis, 149 So. 2d at 43 ( a decision defining the duties of a board of county commissioners may affect all other boards of county commissioners and thereby fall within the reviewable category ). III. THIS COURT SHOULD ACCEPT JURISDICTION TO CLARIFY THE POWERS OF THE SITING BOARD AND THE PSC AND TO STABILIZE THE LAW RELATING TO POWER PLANTS This Court should accept jurisdiction for several reasons. This case directly affects FPL s ability to install miles of transmission lines needed to supply electricity to millions of South Florida consumers. The Opinion also alters the AMERICAS

14 balance of power between the state s highest elected officials, sitting as the Siting Board, and the PSC. The Opinion also frustrates the chief purpose of the PPSA to centralize and streamline the approval of transmission lines both in this case and in other cases statewide. Power plants and transmission lines provide crucial public benefits to consumers across large geographic areas and cost an enormous amount of money; but without the PPSA, they would be subject to the jurisdiction of multiple state and local governments with parochial concerns that could disrupt planning for these facilities. In Seminole County, this Court recognized the problems associated with piecemeal local regulation, noting that [i]f 100 such municipalities each had the right to impose its own requirements with respect to installation of transmission facilities, a hodgepodge of methods of construction could result and costs and resulting capital requirements could mushroom. 579 So. 2d at 107 (quoting Union Elec. Co. v. City of Crestwood, 499 S.W.2d 480, 483 (Mo. 1973)). This Court should accept jurisdiction to resolve this conflict and stabilize the body of law related to electrical power plants. CONCLUSION For the reasons stated above, this Court should accept jurisdiction. AMERICAS

15 Respectfully submitted on December 28, 2016: By: /s/raoul G. Cantero Raoul G. Cantero Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida Tel: (850) Peter C. Cunningham Florida Bar No Brooke E. Lewis Florida Bar No Mohammad O. Jazil Florida Bar No Holland & Knight LLP 701 Brickell Avenue, Suite 3300 Miami, Florida Tel: (305) Rodolfo Sorondo, Jr. Florida Bar No White & Case LLP Southeast Financial Center 200 S. Biscayne Blvd. Suite 4900 Miami, Florida Tel: (305) Fax: (305) Raoul G. Cantero Florida Bar No T. Neal McAliley Florida Bar No Zachary B. Dickens Florida Bar No Florida Power & Light Company 700 Universe Blvd. Juno Beach, Florida Tel: (561) Peter Cocotos Florida Bar No Counsel for Petitioner, Florida Power & Light Company AMERICAS

16 CERTIFICATE OF SERVICE I certify that a copy of this motion has been served electronically via the Florida eportal Court System to the following on this 28 th day of December 2016: Florida Department of Environmental Protection, for and on behalf of the State of Florida Siting Board Frederick L. Aschauer, General Counsel Francine M. Ffolkes, Deputy General Counsel Office of General Counsel 3900 Commonwealth Boulevard, MS 35 Tallahassee, Florida Tel.: (850) Fax: (850) fred.aschauer@dep.state.fl.us francine.ffolkes@dep.state.fl.us Rachel.Roopnarine@dep.state.fl.us Shayna.Acree@dep.state.fl.us Syndie.L.Kinsey@dep.state.fl.us Village of Pinecrest Mitchell A. Bierman, Village Attorney c/o Weiss, Serota, et al 2525 Ponce de Leon Blvd., Ste. 700 Coral Gables, FL mbierman@wsh-law.com Department of Environmental Protection Lea L. Crandall, Agency Clerk Douglas Building, Mail Station Commonwealth Boulevard Tallahassee, Florida Lea.crandall@dep.state.fl.us South Florida Water Management District Brian Accardo, Esquire General Counsel 3301 Gun Club Road, MSC 1410 Post Office Box West Palm Beach, Florida baccardo@sfwmd.gov Village of Pinecrest William C. Garner, Esquire Nabors, Giblin and Nickerson, P.A Mahan Drive, Suite 200 Tallahassee, Florida bgarner@ngnlaw.com AMERICAS

17 City of Miami Victoria Mendez, Esquire John A. Greco, Esquire Matt Haber, Esquire Forrest L. Andrews, Esquire Office of the City Attorney 444 Southwest 2nd Avenue, Suite 945 Miami, Florida South Florida Regional Planning Council Michael D. Cirullo, Jr., Esquire Goren, Cherof, Doody and Ezrol, P.A East Commercial Boulevard Suite 200 Fort Lauderdale, Florida Miami-Dade County Abigail Price-Williams, Esquire County Attorney Dennis A. Kerbel, Esquire Abbie Raurell, Esquire Miami-Dade County Attorney's Office 111 Northwest First Street, Suite 2810 Miami, Florida City of Coral Gables Elizabeth M. Hernandez, Esquire Christine L. Welstead, Esquire Akerman Senterfitt One Southeast Third Avenue, 25th Floor Miami, Florida Miami-Dade Limestone Products Vecellio and Grogen, Inc. d/b/a White Rock Quarries Kerri L. Barsh, Esquire Greenberg Traurig, P.A. 333 Avenue of the Americans Suite 4400 Miami, Florida City of Coral Gables Craig E. Leen, Esquire City Attorney 405 Biltmore Way Coral Gables, Florida City of Doral City of Homestead Matthew Pearl, Esquire Weiss, Serota, Helfman, Pastoriza, Cole and Boniske, P.L. 200 East Broward Boulevard Suite 1900 Fort Lauderdale, Florida Florida Public Service Commission Jennifer Crawford, Esquire 2450 Shumard Oak Boulevard Tallahassee, Florida AMERICAS

18 Florida Fish & Wildlife Conservation Commission Anthony Pinzino, Esquire Farris Bryant Building 620 South Meridian Street Tallahassee, Florida Department of Economic Opportunity Sherry A. Spiers, Esquire MSC East Madison Street Tallahassee, Florida Department of Transportation Kimberly Clark Menchion, Esquire Office of the General Counsel 605 Suwannee Street, MS 58 Tallahassee, Florida City of South Miami Thomas F. Pepe, Esquire Pepe & Nemire, P.A Madruga Avenue, Suite 202 Coral Gables, Florida Miami-Dade Expressway Authority Francine Steelman, Esquire 3790 Northwest 21st Street Miami, Florida Limonar Development Inc. Wonderly Holding Inc. Francisco J. Pines, Esquire Francisco J. Pines, P.A Ponce de Leon Boulevard Suite 220 Coral Gables, Florida City of Florida City Jeff P.H. Cazeau, Esquire Becker & Poliakoff Alhambra Plaza Coral Gables, Florida Coconut Grove Village Council Michelle Melin Niemeyer, Esquire Michelle M. Niemeyer, P.A Virginia Street Coconut Grove, Florida Kendall Homeowers Assoc. Ronald S. Lieberman, Esquire Southwest 100th Street Miami, Florida Kendall Federation of Homeowners Michael Rosenberg, President Associations, Inc SW 84 th Street Miami, FL AMERICAS

19 Monroe County Attorney s Office Steven T. Williams, Esquire Suite th Street Key West, Florida williams-steven@monroecounty-fl.gov National Parks Conservation Assoc. Jason AlexanderTotoiu, Esquire Everglades Law Center Suite South Dixie Highway Miami, Florida jason@evergladeslaw.org Rebecca A. Rodriguez, Esquire Gray Robinson 401 East Las Olas Blvd. Suite 1850 Fort Lauderdale, FL rebecca.rodriguez@gray-robinson.com Robert N. Hartsell Federal Tower 1600 South Federal Highway Suite 921 Pompano Beach, Florida Robert@hartsell-law.com Town of Medley Johanna Gamboa Moas 7777 Northwest 72nd Avenue Medley, Florida JGMoas@townofmedley.com legal@townofmedley.com Friends of the Underline Roy D. Wasson Wasson & Associates Courthouse Plaza, Suite West Flagler Street Miami, Florida roy@wassonandassociates.com Jason Alexander Totoiu, Esquire Everglades Law Center, Inc. Post Office Box 2693 Winter Haven, Florida jason@evergladeslaw.org Richard Grosso, Esquire Shepard Broad Law Center Nova Southeastern University 3305 College Avenue Fort Lauderdale, Florida grossor@nsu.law.nova.edu By: /s/ Raoul G. Cantero Raoul G. Cantero AMERICAS