Leadership Of Florida Senate, House Oppose Inclusion Of Electric Choice Initiative On Ballot

Leadership of the Florida Senate and House have filed briefs with the state's Supreme Court opposing inclusion of the proposed electric choice constitutional amendment initiative on the 2020 ballot, arguing that the initiative violates requirements to be on the ballot, such as the single subject rule, and also arguing that the initiative ballot summary is, "misleading."

The Supreme Court is charged with reviewing ballot initiative language and compliance with various requirements

A brief from Bill Galvano, in his official capacity as President of the Florida Senate, states that, "The ballot summary and title for the Energy Choice Initiative are defective. The ballot summary fails to fairly inform the voter of the chief purpose of the Initiative. The ballot summary does not even hint at the sweeping effects it will have by requiring the Legislature to upend the entire electric utility regulatory framework. The ballot summary affirmatively misleads the public by it stating it grants rights, but fails to include that such rights are dependent and subject to legislative action as the Initiative is not self-executing."

Galvano's brief states that the Energy Choice Initiative violates the single subject rule for ballot initiatives since it affects multiple areas of government

Furthermore, Galvano's brief states, "The Energy Choice Initiative also affects municipalities. This Court has held on multiple occasions that it is a violation of the single-subject requirement not merely if the amendment affects multiple branches of government but multiple levels of government."

Galvano's brief also states that the Energy Choice Initiative violates the Ballot Summary Rule

"By requiring the Legislature to enact sweeping policy reforms that fully effectuate the broad purposes of the Initiative, it is impossible for the voter to make an informed decision based upon the stated terms," Galvano's brief states

"Simply stating in the ballot summary that the Initiative 'repeals inconsistent statutes, regulations, and orders' is insufficient to put a voter on notice of the extensive effects that it will have on the entire utility industry," Galvano's brief states

"Another effect of the proposed Initiative which may weigh significantly on a voter’s decision, is the likelihood of the potential recovery of stranded costs through increased customer rates," Galvano's brief states

"Yet another factor that may weigh significantly on a voter’ [sic] decision which the ballot summary fails to disclose is the effect the creation of a competitive wholesale market will have on the state’s jurisdiction over the electric utility industry. Under the current framework the Florida Public Service Commission has the authority to determine and fix fair, just, and reasonable rates that a public utility may charge for its service. Fla. Stat. §366.06(1). However, the text requires a shift in the 'public policy of the state to wholesale and retail electricity markets.' Part (a)," Galvano's brief states

"The Federal Regulatory Commission (FERC) has exclusive jurisdiction over matters that directly affect wholesale electricity rates, including whether the rules or practices affecting wholesale rates are just and reasonable. 16 U.S.C. §824(b)(1). The U.S. Supreme Court has broadly interpreted this authority. F.E.R.C. v. Electric Power Supply Ass’n, 136 S.Ct. 760, 774-775 (2016)(upholding FERC’s authority extends to what takes place on the wholesale market, no matter the affect, even substantially, on retail rates). The Court explained this expanding scope of jurisdiction was a necessary result of the electric utility industry increasingly becoming a competitive intrastate business as a result of the reduction of utilities operating as vertically integrated monopolies in confined geographic areas. Id. at 768," Galvano's brief states

"While it is clear the Initiative opens the door to broad federal oversight, the degree of which ultimately depend on the structure of the competitive markets. Voters are entitled to know if they are being asked to open Florida to more federal oversight and, thereby, limiting the state’s authority to enact policies which it feels are in the state’s best interest. Another “problem therefore lies not with what the summary says, but, rather, what it does not say.” Askew at 421," Galvano's brief states

"The ballot summary and title are misleading in that the ballot summary directly states the Initiative grants the right of energy choice within the Constitution, which is materially different than what the actual text provides. Under the terms of the text, such rights become effective only upon implementation by and are subject to the broad discretion of the Legislature. A reasonable person could read the ballot summary and believe an affirmative vote for the Initiative would grant customers of investor-owned utilities the right to choose their electricity provider and to generate and sell electricity upon passage. While the ballot summary provides the Legislature is required to adopt laws 'providing for competitive wholesale and retail markets for electricity generation and supply,' such language does not sufficiently link this provision to the aforementioned rights it purports to grant. The Initiative is fatally defective because it leaves the impression it grants rights to a customer of an investor-owned utility, when in reality the proposed amendment creates an illusory right to a competitive market," Galvano's brief states

"The Energy Choice Initiative also fails to identify what parts of the Constitution it would affect," Galvano's brief states

A brief from the Florida House of Representatives argued that the initiative process cannot be used to add policy to the constitution, since Article I, section 3, of the Florida Constitution vests all legislative power, without reservation, in the Legislature