Case Background
On August 26, 2019, Floyd
Gonzales and Robert Irwin (Petitioners) filed a Petition to Compel Florida
Power & Light Company (FPL) to Comply with Section 366.91, Florida Statutes
(F.S.) and Rule 25-6.065, Florida Administrative Code (F.A.C.) (Petition).
Petitioners assert they are permitted by law to be included in FPL’s net
metering program and FPL’s requirement that customer-owned renewable generation
must be sized not to exceed 115 percent of the customer’s annual kWh
consumption violates Rule 25-6.065, F.A.C.
On September 16,
2019, FPL filed a Motion to Dismiss the Petition or in the Alternative to Treat
the Petition as a Request for a Declaratory Statement (FPL Motion and
Alternative Request). On September 23, 2019, the Petitioners filed a Response
in Opposition to FPL’s Motion to Dismiss and Alternative Request.
By email dated October 21, 2019,
from FPL attorney, Ken Rubin, to the Petitioners’ attorney, Kyle Egger, FPL
expressed that based upon a review of Petitioners’ increased electricity usage,
such usage was within FPL’s 115% guideline and Petitioners’ application for
interconnection as a tier 2 net metered customer could proceed for approval.
Specifically, FPL stated that “[o]ur goal is to interconnect your client’s
system as soon as possible so that he may begin to net meter.”
Presented with the suggestion that the Petition had become
moot, the attorney for the Petitioners responded to FPL’s attorney on November
20, 2019, that “at this point and with all resources spent on trying to get FPL
to do what it was supposed to do from the outset, [Petitioners] still want a
formal opinion on their petition.” Net metering for Petitioners became
operational on December 5, 2019. In this recommendation, staff addresses the
merits of the Petition and does not make a recommendation on the FPL Motion and
Alternative Request.
Discussion
of Issues
Issue 1:
Should the Commission grant Floyd Gonzales and
Robert Irwin’s Petition to Compel FPL’s Compliance with Section 366.91, F.S.,
and Rule 25-6.065, F.A.C., and request for a refund?
Recommendation:
No. FPL is currently providing net metering to the Petitioners
and granting Petitioners’ request for a refund is inappropriate and not warranted
under the circumstances presented. (Murphy)
Staff Analysis:
Net Metering
Petitioners argue that FPL improperly rejected their
application for inclusion in FPL’s net metering program in violation of Section
366.91, F.S., and Rule 25-6.065, F.A.C. Petitioners aver that the intent of
both the applicable rule and statute is to encourage customers to install solar
panels. Petitioners contend that, in accordance with Rule 25-6.065(4), F.A.C.,
the only size limit on a customer’s renewable power generation is that it may not
exceed 90% of the customer’s utility distribution service rating. Petitioners
conclude that if a customer-owned renewable generation project does not exceed
90% of that customer’s utility distribution service rating, the project
qualifies and should be accepted into any utility’s net metering program. Petitioners argue that their anticipated
renewable power generation is well within the foregoing limits and, as a
result, Petitioners’ application should have been immediately approved as the Rule requires.
Petitioners assert that FPL imposes limits based on a
customer’s historical energy consumption and not capacity. Specifically,
Petitioners aver that FPL’s net metering portal instructs its customers that
their “[s]ystems should not be sized so large that energy produced by the
renewable generator would be expected to exceed 115 percent of the customer’s
annual kWh consumption.” Petitioners
argue that FPL’s arbitrary limitations violate Section 366.91, F.S., and Rule
25-6.065, F.A.C., and that FPL must be compelled to comply with same and
approve Petitioners’ application for inclusion in its net metering program.
Petitioners ask that the Commission order FPL to approve
Petitioners’ application for inclusion in FPL’s net metering program and refund
to Petitioners all money unnecessarily spent on electricity because of FPL’s
wrongful rejection of their net metering application.
Petitioners argue that the only limitation on net metering
is the 90% of the customer’s utility distribution service rating. However,
staff recommends that Petitioners’ arguments ignore the definition of “net
metering” in both Rule 25-6.065(2)(c), F.A.C., and Section 366.91(2)(c), F.S. Net
metering is defined as “a metering and billing methodology whereby
customer-owned renewable generation is
allowed to offset the customer’s electricity consumption onsite.” (Emphasis
added). Customer-owned renewable generation is “an electric generating system
located on a customer’s premises that is primarily intended to offset part or
all of the customer’s electricity requirements with renewable energy.” Rule
25-6.065(2)(a), F.A.C., and Section 366.91(2)(b), F.S. Thus, while
“customer-owned renewable generation” might
have a secondary purpose other than to offset part or all of a customer’s
electricity requirements, “net metering” is only allowed to offset the
customer’s electricity consumption onsite. FPL
does permit net metering of 115% of consumption because each unique system is
assessed on a range of values using photovoltaic watts resulting in some
fluctuation. Staff
recommends that this is a reasonable implementation of Rule 25-6.065(2)(c),
F.A.C.
In addition to the offsetting limitation for net metering,
Commission Rules also limit interconnection by providing that a customer-owned
renewable generation system is not to exceed 90% of the customer’s utility
distribution rating. That
is, a customer-owned renewable generation system does not qualify for expedited
interconnection to the utility’s facilities for net metering if it exceeds 90% of
a utility’s capacity to service the customer. Staff recommends that Rule
25-6.065(4)(a)1, F.A.C. is intended to provide a safety buffer for the utility
distribution system, ensuring that the capacity of utility facilities
interconnected to customer-owned renewable generation will not be
over-loaded. For example, a customer with a load that reaches 95% of its
utility distribution rating is only permitted to interconnect a customer-owned
renewable generation system that reaches 90% of the customer’s utility
distribution rating, notwithstanding
greater electric consumption on site. In sum, there are two limitations
associated with net metering: (1) net metering of customer-owned renewable
generation is to offset electricity consumption, and (2) customer-owned
renewable generation may not exceed 90% of the customer’s utility distribution
rating.
Staff recommends that FPL has
complied with the applicable rule and statute governing net metering, has
processed the Petitioners’ application for inclusion in the net metering
program, and is net metering the Petitioners’ usage; therefore, the Commission should
deny the Petition.
Requested
Refund
The Petitioners have asked the
Commission to order FPL to refund Petitioners for “all money unnecessarily
spent on electricity because of FPL’s wrongful rejection of their net metering
application, and such other relief as deemed just and proper.” However, because
staff recommends that FPL has not wrongfully rejected the Petitioners’ net
metering application, the premise underlying the request is unfounded.
In its Motion to Dismiss, FPL
addressed the merits of Petitioners’ demand for a refund. FPL asserts that a
refund is inappropriate because FPL billed Petitioners consistent with a
tariffed rate. FPL avers that the refunds Petitioners request are “purely
speculative, retroactive, and uncertain” and would be “entirely dependent on a
guess as to what Petitioners would have generated and what their usage would
have been had they been net metering.” FPL argues that while Rules 25-6.103 and
25-6.106(2), F.A.C., do provide refund mechanisms for customers impacted by
ascertainable metering or billing errors, there are no metering or billing
errors in this case. Staff recommends that FPL is persuasive in the foregoing
arguments regarding refunds. To the extent that Petitioners intend to request
damages, staff recommends that the Commission has no jurisdiction to make such
an award.[4]
Staff recommends that FPL’s actions do not warrant a refund,
refunds are inappropriate under the circumstances presented, and the Commission
has no authority to award damages; therefore, staff recommends that the
Petitioners’ request for a refund be denied.
Issue 2:
Should this docket be closed?
Recommendation:
Yes, if no person whose substantial interests are
affected by the proposed agency action files a protest within 21 days of the
issuance of the order, a consummating order should be issued and the docket
should be closed. (Murphy)
Staff Analysis:
If no person whose substantial interests are
affected by the proposed agency action files a protest within 21 days of the
issuance of the order, a consummating order should be issued and the docket
should be closed.
