Case Background
On September 3,
2019, Achim Ginsberg-Klemmt, Christopher Pierce, Darrell Prather, Geoffrey P.
Dorney, Jeffrey L. Hill, John Bachmeier, J. Robert Barnes, Paul Romanoski,
Terry Langlois, and Robert Winfield filed a Joint Petition for Approval of
Regulatory Improvements for Decentralized Solar Net-Metering Systems in Florida
(Joint Petition). Joint Petitioners asked the Commission to take certain action
relating to the interconnection and net metering of customer-owned renewable
generation by electric utilities in Florida. Specifically, Joint Petitioners
requested that the Commission revise certain terms and requirements related to
interconnection and net metering.
On September 30,
2019, five of the Joint Petitioners, Achim Ginsberg-Klemmt, Christopher Pierce,
Jeffrey L. Hill, Paul Romanoski, and Robert Winfield, filed a Memorandum in
Opposition to FPSC Staff’s Recommendation to Deny the Joint Petition for
Approving Improvements for Decentralized Net-Metering Systems in Florida
(Memorandum in Opposition). In addition,
on October 1, 2019, Mr. Ginsberg-Klemmt and Mr. Chris E. Pierce filed
Petitioners’ Response Opposing Staff Recommendation to Deny (Response in
Opposition). Mr. Ginsberg-Klemmt addressed the Commission at the October 3,
2019 Agenda Conference at which the Joint Petition was heard. By Order No. PSC-2019-0410-FOF-EI,
issued October 10, 2019 (Final Order), the Commission ordered that the Joint
Petition be treated as a petition to initiate rulemaking to amend Rule
25-6.065, Florida Administrative Code (F.A.C.), Interconnection and Net
Metering of Customer-Owned Renewable Generation. Further, the Commission denied
the Joint Petition.
On October 21,
2019, Mr. Ginsberg-Klemmt (Petitioner) filed a timely Motion for
Reconsideration of the Final Order. Also on that date, Petitioner filed a
Request for Oral Argument. On November 4, 2019, Petitioner filed a Notice of
Appeal with the Florida Supreme Court. By the November 13, 2019 Order of the
Florida Supreme Court, the appeal is being held in abeyance until the
Commission issues and files with the Commission Clerk its order disposing of
Petitioner’s Motion for Reconsideration. The Commission has jurisdiction
pursuant to Sections 120.54(7), 350.127(2), and 366.91, Florida Statutes (F.S.).
Discussion
of Issues
Issue 1:
Should the Commission grant Petitioner’s Request for
Oral Argument?
Recommendation:
No. The Commission should deny Petitioner’s Request
for Oral Argument. (DuVal, Cowdery)
Staff Analysis:
Petitioner filed a Request for Oral Argument on his Motion
for Reconsideration. Petitioner
states that oral argument “would provide sufficient time for the Petitioner to
discuss and rebut the faulty conclusions contained in the Commission Staff’s
written recommendation which were merged almost verbatim into the Final Order.”
Petitioner requested that he be granted 15 minutes for oral argument.
Rule
25-22.0022(1), F.A.C., states that the request for oral argument must state
with particularity why oral argument would aid the Commissioners in
understanding and evaluating the issues to be decided. Petitioner’s request for
oral argument does not explain why oral argument would aid the Commission’s
understanding and evaluation of the issues raised in the Motion for
Reconsideration.
Petitioner’s
Motion for Reconsideration fully sets forth the Petitioner’s arguments. Staff
does not believe that oral argument would aid the Commission in understanding
and evaluating Petitioner’s Motion for Reconsideration. Thus, staff recommends
that Petitioner’s Request for Oral Argument be denied.
Issue 2:
Should the Commission grant Petitioner’s Motion for
Reconsideration of the Final Order Denying Petition to Initiate Rulemaking?
Recommendation:
No. Petitioner’s Motion for Reconsideration should
be denied because it does not meet the required standard for a motion for
reconsideration. Petitioner has failed to identify a point of fact or law that
was overlooked or that the Commission failed to consider in rendering Order No.
PSC-2019-0410-FOF-EI, Order Denying Petition to Initiate Rulemaking. (DuVal,
Cowdery, Vogel)
Staff
Analysis:
Standard
of Review
The appropriate standard of review in a motion for
reconsideration is whether the motion identifies a point of fact or law that
was overlooked or that the Commission failed to consider in rendering its Final
Order. Stewart Bonded Warehouse, Inc.
v. Bevis, 294 So. 2d 315 (Fla. 1974); Diamond Cab Co. v. King, 146
So. 2d 889 (Fla. 1962); and Pingree v. Quaintance, 394 So. 2d 161 (Fla.
1st DCA 1981). In a motion for
reconsideration, it is not appropriate to reargue matters that have already
been considered. Sherwood v. State,
111 So. 2d 96 (Fla. 3d DCA 1959), citing State ex rel. Jaytex Realty Co. v.
Green, 105 So. 2d 817 (Fla. 1st DCA 1958).
Petitioner’s Motion for Reconsideration
Petitioner asserts that he was given insufficient time to
discuss and rebut the “faulty conclusions” in the staff recommendation. Petitioner
states that the Commission misconstrued Joint Petitioners’ request “to allow
net-metering customers or their contractors to freely choose the size of their
net-metering systems providing that the existing electric grid connection
supports the requested size and the requested solar system fully complies with
the applicable technical standards controlled and verified by the current
building permit inspection process at the County level.” Petitioner states that
he agrees that net-metered solar systems should not be allowed to exceed
transformer capacity, but that Florida Power & Light Company should not be
allowed “to unilaterally impose arbitrary limitations on solar net-metering
systems.”
The Motion for Reconsideration states that the Commission should,
but is not required to, change Rule 25-6.065, F.A.C., to “mitigate negative
effects” caused by the 10kW Tier 1 provision. Petitioner states that the Tier 1
threshold should be increased to 50kW because the 10 kW provision is not
powerful enough to cover the needs of a larger home with electric vehicles. The
Motion for Reconsideration also states that the Commission could “simply waive”
the insurance requirement of one million dollars or grant a variance for all
residential solar installations. Petitioner
further alleges that the core problem is “the missing enforcement and missing
oversight capabilities of existing rules during the permitting process” and
that Commission staff lacks technical expertise concerning net-metering.
Petitioner argues that the Joint Petition’s request to
increase minimum compensation for surplus solar electricity to a minimum of
$0.08 per kWh was a “simple request for a rate increase” that was inappropriately
treated as a petition to initiate rulemaking, but if the treatment of the
request as a petition to initiate rulemaking was proper, the rule should be
modified. Petitioner maintains that because Rule 25-6.065(2)(a), F.A.C., defines
customer-owned renewable generation as a system that is primarily intended to
offset part or all of the customer’s electricity requirements with renewable
energy, it follows that there exists a secondary purpose that allows customers’
net-metering systems to produce surplus power based on future usage.
Analysis
Staff disagrees with Petitioner’s claim that he had insufficient
time to address the staff recommendation. Petitioner responded to and addressed
the staff recommendation in the Memorandum in Opposition, the Response in
Opposition, and at the October 3, 2019 Agenda Conference. Further, Petitioner’s
Motion for Reconsideration sets out in detail Petitioner’s reasons for
requesting reconsideration. As explained below, the Motion for Reconsideration
does not cite to any point of fact or law that was overlooked or that the
Commission failed to consider in rendering its decision to deny the Joint
Petition. Instead, Petitioner reargues the three points raised in the Joint
Petition that have already been considered by the Commission in rendering the
Final Order.
Petitioner’s first argument on reconsideration is that the
Commission misconstrued its request in the Joint Petition for net-metering
customers or their contractors to be allowed to “freely choose the size of
their net-metering systems” subject to proper standards. The Motion for
Reconsideration does not identify a point of fact or law that was overlooked or
that the Commission failed to consider. Instead, Petitioner makes the same
argument that he addressed in the Memorandum in Opposition, citing legal
analysis in Docket No. 20190167-EI
and Exhibit D. Petitioner
likewise addressed this point at the October 3, 2019 Agenda Conference,
specifically raising Docket No. 20190167-EI. The Final Order addressed Joint
Petitioners’ arguments and concluded that the Joint Petitioners’ suggested
amendment would not promote the development of small customer-owned renewable
generation or otherwise meet the purpose of Rule 25-6.065, F.A.C.
Petitioner’s second argument on reconsideration is that
the 10kW Tier 1 provision of Rule 25-6.065(4)(a)2., F.A.C., should be increased
to 50kW to allow more economical and less bureaucratic installation of solar
systems for larger homes with electric vehicles. The Motion for Reconsideration
does not identify a point of fact or law that was overlooked or failed to be
considered by the Commission. Instead, Petitioner makes the same arguments that
were made in the Joint Petition, the Memorandum in Opposition, the Response in
Opposition, and at the October 3, 2019 Agenda Conference. The Final Order
addressed the 10kW Tier 1 provision arguments and concluded that the allowable
range for Tier 1 customers should not be amended.
Likewise, the Motion for Reconsideration does not allege
that the Commission overlooked or failed to consider any facts or law
concerning insurance requirements, rule enforcement, or staff expertise. Further,
the Final Order does not address these points because the Joint Petition did
not ask the Commission for relief on these matters.
Petitioner’s third point for reconsideration concerns
surplus power production. The Motion for Reconsideration does not identify a
point of fact or law that was overlooked or failed to be considered by the
Commission. The Joint Petition argued that “compensation for surplus solar
electricity generated by decentralized solar net-metering systems” should be
increased to a minimum of $0.08 per kWh. Although Petitioner makes a general
statement that this was a “simple request” for a rate increase and it was not
appropriate to treat this request as a petition to initiate rulemaking, this argument
was not raised in the Joint Petition, Memorandum in Opposition, Response in
Opposition, or at the October 3, 2019 Agenda Conference. The Motion for
Reconsideration’s general argument that increased compensation is needed to
encourage the production of surplus solar electricity reargues the same points
raised in the Joint Petition and in the Response in Opposition. The Final Order
addressed the issue of amending Rule 25-6.065(8)(f) and (g), F.A.C., to change
the amount by which unused credits are purchased by a utility and concluded
that the current amount is appropriate because it is consistent with the rate
paid by investor-owned utilities to all other power producers in Florida.
Finally, the Motion for Reconsideration does not identify
a point of fact or law that was overlooked or failed to be considered by the
Commission in rendering the Final Order’s conclusion that if the purpose of the
Joint Petition was to allow individuals to generate and sell electricity on a
wholesale basis, the request was outside the scope of Rule 25-6.065,
F.A.C. Instead, Petitioner’s argument
that the Rule 25-6.065(2)(a), F.A.C., definition of customer-owned renewable
generation should be read to allow customers to produce surplus power based on
future usage, is the same argument that was made in the Joint Petition, the
Response in Opposition, and at the October 3, 2019 Agenda Conference, and is repeated
almost verbatim from the Memorandum in Opposition. The Commission considered
this argument and rejected it.
Conclusion
Staff recommends that Petitioner’s Motion for
Reconsideration be denied because it does not meet the required standard for a
motion for reconsideration. Petitioner has failed to identify a point of fact
or law that was overlooked or that the Commission failed to consider in
rendering Order No. PSC-2019-0410-FOF-EI, Order Denying Petition to Initiate
Rulemaking.
