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Opponents to justices: Energy choice proposal deceptive

August 28, 2019

TALLAHASSEE, Fla. (AP) — Opponents of a proposed constitutional amendment that would deregulate the power industry told the Supreme Court on Wednesday that it should be kept off the Nov. 2020 ballot because it’s confusing and deceptive — and the justices seemed to agree.

A group called Citizens for Energy Choices is collecting signatures to get the measure on the ballot. If it succeeds and at least 60 percent of voters approve, big, for-profit utilities such as Florida Power & Light would no longer generate power in Florida. Instead, their role would be limited to transmitting power and maintaining the lines that do so. That would open the market to virtually anyone else to sell electricity to Florida customers.

But a team of lawyers that represented opponents, including Attorney General Ashley Moody, for-profit utilities and others, said not only was the language confusing, but deceptive in several ways. The proposed ballot language says customers could buy power from anyone, but lawyers said that’s not true if they wanted to continue buying power now generated by Florida Power & Light and similar companies. The proposed amendment also says municipal and co-op utilities wouldn’t be affected, but many buy power from for-profit power companies that would be out of the sales game, forcing them to scramble for new energy providers, lawyers said.

“This summary ... is something you can’t figure out, even if you were a sophisticated insider,” said lawyer Barry Richard, representing Florida Power & Light and Gulf Power.

Justices seemed to agree.

“A summary cannot be affirmatively misleading. It cannot state something that’s not true,” Chief Justice Charles Canady said to Ken Sukhia, who is representing Citizens for Energy Choices. “That certainly seems to be a good principle to follow, and I having trouble seeing how we can follow that principle and uphold this.”

Similarly, Justice Ricky Polston said, “The summary is confusing to me.”

Polston said the proposed amendment states that investor-owned utilities can’t sell power, but that the companies that would replace them also would be making a profit and essentially be investor-owned utilities.

“It seems contradictory on its face,” he said.

The group needs 766,200 voter signatures to get the proposal on the ballot. It currently has more than 403,000 signatures verified. But the Supreme Court still has to approve the ballot language.

Justice Robert Luck questioned whether a voter would understand that having a choice in electricity means not being able to choose their current provider. He used Florida Power & Light as an example.

″’Would a reasonable voter say, ‘I would like FPL ... I like my bill, I like what I’m getting, I like the service I’m getting and I want to use FPL.’ Would a reasonable voter understand they cannot choose FPL?” Luck said. “How can that be a choice?”

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