Case Background
By Proposed Agency
Action Order No. PSC-2017-0287-PAA-EI, issued in this Docket on July 24, 2017
(PAA Order), the Florida Public Service Commission (Commission) proposed to
grant Florida Power & Light Company’s (FPL) Petition for Exemption from the
“Bid Rule,” which is codified at Rule 25-22.082, Florida Administrative Code
(F.A.C.). The exemption was granted pursuant to subsection (18) of that Rule.
On August 14, 2017, Sierra Club filed a
Petition to Intervene and Protest the PAA Order (Protest). In accordance with
the PAA Order, this was the last day that a protest of the PAA Order was
timely. On August 21, 2017, FPL filed its Response to Sierra Club’s Protest
(Response). On August 25, 2017, Sierra Club filed its Motion for Leave to File
a Reply to FPL’s Response and attached its Reply. On September 1, 2017, FPL filed its Motion
for Leave to File a Reply and Proposed Reply. By Order No.
PSC-2017-0358-PCO-EI, issued on September 20, 2017, (Order Denying Sierra
Club’s Protest) the prehearing officer denied Sierra Club’s Protest.
On October 2, 2017, Innovative Solar
Systems, LLC (ISS) filed its Petition to Intervene and Motion for Reconsideration
of the Order Denying Sierra Club’s Protest (ISS Petition and Motion). On October 9, 2017, FPL filed its Response in
Opposition to the ISS Petition and Motion. (Response in Opposition). The ISS Petition and Motion and the FPL
Response in Opposition are the subject of this staff recommendation.
Generally, in its Petition and Motion, ISS
asserts that Sierra Club’s Protest was denied because Sierra Club’s interests
were not substantially affected since Sierra Club is neither a potential
generation supplier for FPL’s anticipated need, nor a potential Request for
Proposals (RFP) participant. ISS attempts to cure Sierra Club’s deficiency by
asserting that ISS is such a supplier and potential RFP participant and will be
substantially affected by the Commission’s decision in this docket. ISS asks
that it be permitted to intervene, that the Order Denying Sierra Club’s Protest
be vacated, and that the Commission reverse the PAA Order and deny FPL’s Petition
for Exemption.
In its Response in Opposition, FPL argues
that the ISS Petition and Motion is legally deficient because: ISS did not file
a timely protest to the PAA Order; there is no pending proceeding to provide
ISS a point of entry in light of the Order Denying Sierra Club’s Petition; as a
nonparty ISS cannot seek reconsideration of the Order Denying Sierra Club’s Petition;
ISS cannot cure Sierra Club’s lack of standing by “stepping into its shoes;”
and finally, even if ISS’s standing could be established, ISS has identified no
mistake of fact of law in the Order Denying Sierra Club’s Protest that would
warrant reconsideration of that Order. FPL
asks that the ISS Petition and Motion be denied and that the Commission issue an
order consummating the PAA Order which granted FPL the exemption from the bid
rule.
Oral Argument was not requested. The
Commission has jurisdiction pursuant to Chapter 120, Florida Statutes (F.S.),
and Rule 25-22.029, F.A.C.
Discussion
of Issues
Issue 1:
Should the Commission grant ISS’s Petition to
Intervene?
Recommendation:
No. The
Commission should deny ISS’s Petition to Intervene. (Murphy)
Staff Analysis:
Staff
recommends that ISS is not timely in its attempt to intervene and participate
in this PAA docket.
Rule
25-22.029(1) and (3), F.A.C., establish the point of entry into a proposed
agency action proceeding, and provide, in pertinent part, the following:
(1) After agenda conference,
the Office of Commission Clerk, shall issue written notice of the proposed
agency action (PAA), advising all parties of record that . . . they have 21 days after issuance of the
notice in which to file a request for a Section 120.569 or 120.57, F.S.,
hearing.
*
* *
(3) One whose substantial interests may or
will be affected by the Commission’s proposed action may file a petition for a
Section 120.569 or 120.57, F.S., hearing, in the form provided by Rule
28-106.201, F.A.C. Any such petition shall be filed within the time stated in
the notice issued pursuant to subsection (1) of this rule, and shall identify
the particular issues in the proposed action that are in dispute.
The
Commission provided the following notice language in the PAA Order:
The action proposed herein is
preliminary in nature. Any person whose substantial interests are affected by
the action proposed by this order may file a petition for a formal proceeding,
in the form provided by Rule 28-106.201, Florida Administrative Code. This petition must be received by the Office
of Commission Clerk, 2540 Shumard Oak Boulevard, Tallahassee, Florida
32399-0850, by the close of business on August 14, 2017. (Emphasis
original).
ISS is asking 1) to intervene in the PAA docket, 2) for
the Commission to reconsider the procedural order that denied Sierra Club standing
to protest the PAA Order (based upon new facts and ISS replacing Sierra Club for
purposes of establishing standing), and 3) for the Commission to reverse the
PAA Order (based upon these new facts and ISS’s asserted standing). The effect
of granting the ISS Petition and Motion would be for ISS to substitute itself
for Sierra Club to establish standing that Sierra Club did not have, and then
rely upon the timeliness of the Sierra Club’s Protest of the PAA Order to
reverse the PAA Order which ISS failed to timely protest.
Moreover, by asking that the Commission reconsider the
Order Denying Sierra Club’s Protest, ISS implicitly asks that the Commission
determine that Sierra Club had standing to Intervene in this docket; however,
ISS’s pleadings are void of any argument on that point and instead conflate the
status of ISS, as if it had made a timely protest, with Sierra Club.
The parties’
arguments on intervention are set forth below.
ISS Petition and Motion
ISS asserts
that is it is a nationwide utility-scale solar farm developer with three
utility-scale solar farms under development in Florida and would submit these
three projects in an RFP issued by FPL. Efforts by ISS to discuss a direct power
purchase agreement (PPA) with FPL have been unsuccessful and FPL has indicated
that it has no interest in signing a solar PPA with ISS. Thus, ISS asserts that a mandatory RFP is the
only avenue by which FPL would be required to consider more cost-effective,
clean alternatives for the modernization of FPL’s Lauderdale Plant and ISS will
suffer injury if it is prevented from offering these projects to FPL for
consideration. ISS argues that this is the type of injury this docket is
designed to prevent.
ISS argues
that by exempting FPL from the bid requirement, the Commission is giving FPL
permission to continue to ignore clean, renewable, more cost-effective
alternatives and thwarting the development of renewables in Florida. ISS takes
issue with the basis of the underlying PAA Order as it relates to the effects
of modernizing a gas plant by building a larger gas plant. ISS avers that, if
given the opportunity, it can demonstrate that solar is superior to natural
gas. ISS asserts that its interests are substantially affected, and it will
suffer an injury in fact as a result of the Commission granting FPL the
exemption from the Bid Rule. In sum, ISS argues that it meets the requirements
for standing as set forth in Agrico Chemical Company v. Department of
Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981) rehearing
denied, 415 So.2d 1359 (Fla. 1982). As such ISS asks that it be permitted
to intervene in this docket, that the Commission vacate the Order Denying
Sierra Club’s Protest, and that the Commission reverse the PAA Order and deny
FPL’s petition for exemption from the Bid Rule.
FPL Response in Opposition
FPL asserts that the Commission should deny ISS’s petition to intervene because it is legally deficient for the following
reasons: (1) ISS failed to
file a protest within 21 days of the issuance of the Commission’s PAA Order granting FPL’s petition for an exemption
of the Bid Rule as required by Rule 25-22.029,
F.A.C., which governs protests of PAA Orders. Sierra Club is the only entity that filed a timely protest. ISS can neither refute
that fact nor attempt to latch on to Sierra Club’s
Protest in order to comply with
the protest deadline
set by the PAA Order. (2) There is no pending proceeding to provide a point of entry for intervention by ISS under Rules 25-22.029 and 25-22.039,
F.A.C., in light of the Order denying Sierra
Club’s Protest. Rule 25-22.039,
F.A.C., governing intervention in Commission
proceedings, only allows intervention
in a pending proceeding before the Commission.
Rule 25-22.029, F.A.C.,
governs points
of entry into a
PAA proceeding before the Commission, and provides
for a point of entry to a proceeding only if a
timely protest is filed by a substantially affected person within 21 days of the issuance of the PAA
Order. Because Sierra Club did
not seek reconsideration of the Order
Denying Sierra Club’s Protest by the
deadline for motions for reconsideration,
there was no
“pending proceeding” that would have provided
ISS a point of entry for its petition
to intervene in this proceeding.
Conclusion
While ISS might otherwise have standing to intervene in a docket and protest
a PAA Order, or to seek reconsideration of a procedural order if it established
standing on its own and timely protested the issuance of a PAA Order, staff
recommends that, in the instant case, FPL is persuasive in its argument that
ISS is not timely in its attempt to intervene and participate in this docket. The
protest of the PAA Order had to be filed by August 14, 2017. ISS filed its
Petition and Motion on October 2, 2017. By the Order Denying Sierra Club’s
Protest, the prehearing officer determined that Sierra Club lacked standing to
intervene and protest the PAA Order that granted FPL the RFP exemption. Staff recommends
that ISS cannot properly rely on Sierra Club’s timely protest of the PAA Order
and then substitute itself for Sierra Club to establish ”injuries in fact” for
purposes of standing pursuant to Agrico Chemical Company v. Department of
Environmental Regulation,
and thereby revive both Sierra Club’s standing
and the underlying Protest. Thus,
staff recommends that ISS’s Petition to Intervene should be denied.
Staff does
observe that, as with Sierra Club, there is nothing preventing ISS from
petitioning the Commission to intervene in the underlying need determination
proceeding that will address the modernization of the Lauderdale Plant. Docket
No. 20170225-EI, Petition for
determination of need for Dania Beach Clean Energy Center by Florida Power
& Light Company, has recently been opened to address that subject and
all elements of that case must be proven by FPL. Moreover, if ISS believes that
FPL has refused to purchase renewable power from ISS and that FPL is legally
required to do so, ISS can file a complaint with the Commission based upon that
concern.
Issue 2:
Should the Commission grant ISS’s Motion for
Reconsideration of the Order Denying Sierra Club’s Petition?
Recommendation:
No. The Commission should deny ISS’s Motion for
Reconsideration of the Order Denying Sierra Club’s Petition. (Murphy)
Staff Analysis:
The legal standard for
reconsideration of an order is to bring to the attention of the administrative
agency some point of fact or law that it overlooked or failed to consider when
it rendered its order. Diamond Cab Company of Miami v. King,
140 So.2d 889, 891 (Fla. 1962); Stewart
Bonded Warehouse, Inc. v. Bevis, 294 So.2d 315 (Fla. 1974); Pingree v. Quaintance, 394 So.2d 161
(Fla. 1st DCA 1981). Notwithstanding that ISS impermissibly attempts
to use a motion for reconsideration to substitute itself for Sierra Club in
order to cure Sierra Club’s lack of standing, ISS also fails to meet the
standard for reconsideration. Thus, the Commission should deny ISS’s Motion for
Reconsideration of the Order Denying Sierra Club’s Protest.
ISS Petition and Motion
ISS asserts that it is a nationwide utility-scale solar
farm developer and would submit projects in response to an RFP in this docket. ISS
takes exception to the decision reached by the Commission in the PAA Order
issued in this docket. ISS argues that it is substantially affected by the
Order Denying Sierra Club’s Protest, and that FPL has not been interested in
signing a solar PPA with ISS.
FPL Response in Opposition
FPL asserts
that ISS cannot attempt to cure Sierra Club’s lack of standing, as determined
by the Prehearing Officer in the Order Denying Sierra Club’s Protest, by
“stepping into [Sierra Club’s] shoes” and then seeking reconsideration of that
Order. FPL avers that ISS is attempting
to take up the procedural mantle of the Sierra Club protest, a procedural
vehicle which ISS did not file itself within the 21-day deadline required by Rule
25-22.029, F.A.C. FPL contends that, by its Motion for Reconsideration, ISS is
trying to provide Sierra Club with a “third bite” at the apple in this docket. FPL
asserts that, because ISS failed to timely intervene or protest the PAA Order, ISS
is not a party to this proceeding. Thus, ISS cannot seek reconsideration of the
Order Denying Sierra Club’s Protest pursuant to Rule 25-22.0376, F.A.C., which
limits such motions to a “party.”
FPL further asserts
that, even if the Commission permits ISS to intervene in this proceeding, ISS
has failed to identify a single mistake of fact or law in Order No.
PSC-2017-0358-PCO-EI. FPL argues that, pursuant to Rule 25-22.0376, F.A.C., and
well established legal precedent, the standard for reconsideration of the Order
is to bring to the Commission’s attention some point of fact or law that was
overlooked or failed to be considered when the Prehearing Officer rendered the
Order. FPL
argues that ISS has failed to meet this burden and thus, has failed to
establish any lawful ground for reconsideration of the Order Denying Sierra
Club’s Protest.
Conclusion
While acknowledging that Sierra
Club was denied standing for “failure to demonstrate that their interests would
be substantially affected,” ISS fails to identify any mistake of fact or law,
in the Order Denying Sierra Club’s Protest, that would have supported Sierra
Club’s standing. Instead, ISS attempts to cure Sierra Club’s lack of standing
by alleging new facts which are intended to demonstrate ISS’s own standing to
protest the Commission’s PAA Order which ISS failed to timely protest. Stated
differently, ISS attempts to substitute itself for Sierra Club to bolster the
allegations in Sierra Club’s Protest by making new arguments to cure Sierra
Club’s deficient pleading and, in turn, seeks reconsideration. A party cannot use
reconsideration to make new arguments or seek to bolster a deficient pleading. See Order No. PSC-11-0097-FOF-WS, Issued
on February 2, 2011, in Docket No 100318-WS,
In re: Petition for order to show cause against Service Management Systems,
Inc. in Brevard County for failure to properly operate and manage water and
wastewater system. (“A motion for reconsideration is not the appropriate
vehicle for bolstering allegations and making new arguments to cure an earlier,
deficient pleading.”).
Because ISS has failed to bring to
the Commission’s attention some point of fact or law that the Prehearing
Officer overlooked or failed to consider in the Order Denying Sierra Club’s
Protest, ISS has failed to meet the standards for reconsideration set forth in Diamond Cab Company of Miami v. King, Stewart
Bonded Warehouse, Inc. v. Bevis, and
Pingree v. Quaintance. Therefore, staff recommends that the Commission
should deny ISS’s Motion for Reconsideration of the Order Denying Sierra Club’s
Protest.
Issue 3:
Should this docket be closed?
Recommendation:
Yes. The PAA Order at issue in this docket is final
upon the issuance of a consummating order. If the Commission agrees with the
staff recommendation in either Issue 1 or 2 of this recommendation, this docket
should be closed upon the issuance of an order consummating Order No. PSC-2017-0287-PAA-EI.
(Murphy)
Staff Analysis:
The PAA Order at issue in this docket is final upon
the issuance of a consummating order. If the Commission agrees with the staff
recommendation in either Issue 1 or 2 of this recommendation, this docket
should be closed upon the issuance of an order consummating Order No. PSC-2017-0287-PAA-EI.
406 So.2d 478 (Fla. 2d DCA 1981) rehearing denied, 415
So.2d 1359 (Fla. 1982).
