Florida’s Constitutional Battle for Clean Energy!

Florida’s Constitutional Battle for Clean Energy!

Written byTony Dutton

Florida, the “Sunshine State”, has the potential to be among the top three states nationally for solar energy. However, just 1/10th of 1% of its electricity is generated from solar energy, and it ranks below states like Massachusetts and New Jersey. One of the state’s largest utilities, Florida Power & Light, has recently noted that only about 3,000 of its 4.8 million customers have solar on their roofs.
At the same time, Florida is a state where the citizens, by their votes, control what is in its Constitution. Amendments may be proposed by the state Legislature or by citizen initiative, but they must, in every case, be adopted by 60% of the voters.
Three proposed solar Amendments to Florida’s Constitution now exist – one (Amendment 4) is to be voted on in the state’s August 30, 2016 primary election, and a second (Amendment 1) to be voted on in the November 8, 2016 general election. Proposed Amendments are numbered in the chronological order they qualify to be voted upon.
The third one has been promoted by a group named “Floridians for Solar Choice” (Solar Choice). It has no number because it has not qualified for a ballot position. The Solar Choice Amendment might possibly be voted on in the November 2018 general election.
Here they are:

AMENDMENT 4 – This non-controversial Amendment, commonly known as the “Solar Devices Exemption”, has been unanimously proposed by the Florida Legislature. It is designated as “Amendment 4” because it was the 4th proposed Constitution Amendment to qualify for the 2016 general election ballot. The Legislature, at the urging of the electric utilities, voted to place Amendment 4 on the August 30 primary ballot to avoid any confusion, in November, between it and proposed Amendment 1.
Residential properties are presently exempt, by law, from having their real property tax (ad valorem) assessments increased by the value of any installed rooftop solar or other renewable energy devices. Amendment 4 authorizes the Legislature to extend that exemption to commercial and industrial properties for a period of 20 years beginning in 2018. It is hoped by Amendment 4’s supporters that, if adopted, the change will encourage businesses to invest in solar energy and solar companies to move to Florida.

 

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It is noteworthy that Amendment 4 will not automatically grant solar tax exemptions to businesses, but has been written “to authorize” the Legislature to adopt laws exempting energy devices on commercial properties. Hence, if Amendment 4 passes, those supporting it must remain alert to ensure that the Legislature actually adopts the contemplated exemptions.

AMENDMENT 1 – This proposed Amendment, which is widely viewed as an anti-solar amendment, will appear on the November 8, 2016 general election ballot. It is sponsored by a group named “Consumers for Smart Solar, Inc.” (Smart Solar).
Florida is one of several states that, by statute and regulation, requires all sales of electric energy to be made by public utilities. Individuals and businesses may not sell solar or other electric power. During late 2014 and early 2015, hoping to expand the use and sale of solar and other renewable energy, a group of solar energy proponents formed Solar Choice. It drafted a proposed Amendment to the Florida Constitution that would permit any property owner to install solar panels, consume the energy produced by those panels and sell a limited amount of any surplus energy to neighbors and tenants. As required, that Amendment was approved by the Florida Attorney General, and, in the spring of 2015, Solar Choice began the long process of obtaining the more than 683,000 voter signatures required to place its proposed Amendment on the 2016 ballot.
The major electric utilities, led mostly by Florida Power & Light and Duke Energy, quickly realized that any sales of rooftop solar power by individuals or businesses would dilute their energy monopolies and cut into their business. They reacted by forming Smart Solar in July 2015. Smart Solar quickly drafted its own citizen initiative Amendment, gathered contributions from Florida’s public utilities (reportedly more that $7 million by the start of the 2016 summer) and proceeded to seek the signed Petitions necessary to place it on the 2016 ballot.
Citizen initiative Amendments must, by law, be approved as to form and content by the Florida Supreme Court. In March 2016, eight months after its formation, Smart Solar achieved that approval by a 4 to 3 vote, though most commentators noted that the Amendment’s language does not change the law at all, only placing in the Constitution what is the present statutory and regulatory law. In fact, one of the Supreme Court Justices wrote, “Let the pro-solar energy consumers beware. Masquerading as a pro-solar energy initiative, this proposed constitutional amendment, supported by some of Florida’s major investor-owned electric utility companies, actually seeks to constitutionalize the status quo.”
Smart Solar and its supporters had been aggressively collecting voter signatures since the summer, and by the time of the Supreme Court’s approval, it had all the signed Petitions it needed and was in position to be Amendment 1 – the first proposed Amendment to qualify for the November 2016 ballot.

FLORIDIANS FOR SOLAR CHOICE – Through the summer and early fall of 2015, Solar Choice continued to collect voter signatures on its Amendment Petition Form. It was helped in this effort by an unusual mix of business, conservation and environmental groups. They included the Florida Retail Federation, Greenpeace USA, the League of Women Voters of Florida, the Libertarian Party of Florida, and the Sierra Club Florida. Such groups work typically as volunteers in their Petition gathering efforts.
Common knowledge is that the required number of valid signed Petitions is so great that volunteers alone cannot achieve it. Hence, citizens trying to place a proposed Amendment on the ballot must rely on professional petition gatherers for much of the task. Unfortunately, Solar Choice had limited financial resources, and by early fall it could no longer afford to pay many of its Petition gatherers. The result was as might be expected, many workers left or switched from Solar Choice to Smart Solar which was able to compensate better the Petition gatherers. Solar Choice, it is understood, tried for a time to match the amounts offered by Smart Solar. But that effort only depleted Solar Choice’s limited funds and brought to an end its efforts to obtain enough Petitions to place its proposed Amendment on the November 2016 ballot.
The Solar Choice advocates have noted that under current law an Amendment Petition is valid for 24 months from the date it was signed. Hence, they have said that they expect all Solar Choice Petitions signed on or after February 1, 2016 will still be valid for the November 2018 ballot, if they are submitted to the state prior to the February deadline of that year. Several interesting legal questions are presented, however, if the Smart Solar Amendment 1 is adopted by the voters in 2016, and they will almost certainly lead to litigation.

The constitutional battle to expand clean renewable energy in Florida seems certain to go on for the next several years or longer. The electric utilities have invested heavily in fossil fuels and nuclear facilities. And the environmental communities are dedicated to ensuring that the future of electric power lies in the use of clean renewable sources. This article has sought only to describe the present landscape.

 

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