Inside the contentious fight over rooftop solar in Florida
Dueling ballot measures are testing Floridians’ ability to understand solar.
Solar now seems as much in dispute in Florida as the Bush-Gore election once was.
Two solar initiatives, backed by dueling diverse coalitions, are competing for the almost 700,000 signatures needed to get on the 2016 Florida ballot. And it is not easy to understand the differences between them.
The first proposed initiative came last winter from Floridians for Solar Choice (FSC), a so-called Green Tea coalition led by the Southern Alliance for Clean Energy (SACE), the Tea Party Network, Republican conservatives, and the Sierra Club.
“We are trying to open up the market so Florida’s families and businesses will have the option of powering their homes and workplaces with solar power,” said SACE Action Fund Florida Energy Policy Attorney George Cavros.
The second initiative came this spring from Consumers for Smart Solar (CSS), a coalition representing former Democratic and Republican legislators, several Florida Chambers of Commerce, conservative consumers, and the Florida utilities.
“Our Smart Solar Amendment establishes the right to solar in Florida’s constitution,” CSS Co-Chair Dick Batchelor wrote to Utility Dive. “It makes it a right under Florida’s constitution for consumers to own or lease solar equipment to generate their own electricity.”
Despite the ostensible similarities between the proposals, there is real bitterness between the groups.
“Our amendment was made necessary by theirs,” Batchelor said. “Solar is too important to Florida’s future to be represented on our ballot only by a flawed proposal that deserves to fail.”
The two solar petitions may confuse voters and that was the intent, Cavros responded. “That has implications for our signature-collecting and fund-raising efforts and will make it harder for us to get our initiative on the ballot. This is a highly coordinated campaign to deceive Florida voters on solar.”
FSC members believe the state’s utilities are behind the CSS initiative. “They have a monopoly on the market and they are shutting down solar choice for customers,” Cavros said.
Florida Power and Light (FP&L) is not directly involved in CSS, Public Affairs Director Mark Bubriski said. “They reached out to us. We offered some technical and policy analysis. We have not yet contributed financially but we expect to. They are doing the right thing. There are many other groups supporting them.”
Editor's Note: After publication of this story, Bubriski confirmed to UtilityDive that FPL has made a $30,000 donation to CSS.
FP&L’s central concern with the FSC initiative is that “if it were to pass, it would force Floridians to give up their basic consumer rights,” Bubriski said. “We believe this is a reckless, unprecedented, unconstitutional ban on consumer protection. We want more solar in Florida but this is the wrong way to achieve that.”
Floridians for Solar Choice vs. Consumers for Smart Solar
To get on the 2016 ballot as a proposed constitutional amendment, an initiative’s petition must have 683,149 verified voters’ signatures and the language must be approved by the state Supreme Court.
FSC’s petition, Cavros said, has about 170,000 signatures. The 100,000 that have been verified more than qualify it for a Supreme Court review of its language. A September 1 hearing is scheduled. “We are continuing to collect signatures and fundraise and we are confident we will get it on the ballot.”
Its official summary: Limits or prevents government and electric utility imposed barriers to supplying local solar electricity. Local solar electricity supply is the non-utility supply of solar generated electricity from a facility rated up to 2 megawatts to customers at the same or contiguous property as the facility. Barriers include government regulation of local solar electricity suppliers’ rates, service and territory, and unfavorable electric utility rates, charges, or terms of service imposed on local solar electricity customers.
Meanwhile, CSS is obtaining signatures. “We should gather enough to trigger a Supreme Court review by next month, though verification of signatures adds some time to the process,” Batchelor reported. “We are on track to complete the signature drive by the February 1 certification deadline.”
Its official summary: This amendment establishes a right under Florida's constitution for consumers to own or lease solar equipment installed on their property to generate electricity for their own use. State and local governments shall retain their abilities to protect consumer rights and public health, safety and welfare, and to ensure that consumers who do not choose to install solar are not required to subsidize the costs of backup power and electric grid access to those who do.
“The Shady Solar Amendment advocated by our opponents is written to benefit the third-party solar electricity industry, not consumers,” Batchelor asserted. “It does nothing for those who want to buy or lease solar equipment and generate their own electricity. Ours does.”
The FSC initiative is backed by local and national solar installers and advocates. Its backers want to make a second type of third party ownership (TPO) for financing solar, the power purchase agreement (PPA), legal in Florida.
The leasing of solar and other distributed generation is allowed but not common in Florida, Cavros explained. Bubriski agreed but noted it is not constitutionally authorized.
The CSS initiative “places in our constitution the right of individuals and businesses to own and lease solar equipment to generate their own electricity,” Batchelor said. “Putting it into the constitution ensures that it is highly unlikely to change, which provides certainty to those considering a significant investment in solar.”
“Leasing is already authorized by commission rule,” Cavros said, citing Section (2)(a) of the Florida Administrative Code. “Florida’s net metering rule includes systems that are leased as long as the lease is not based on the output of the system, which would be a PPA."
The FSC initiative would allow TPO financed systems of up to 2 MW to operate under a PPA. It would be a fundamental shift in the state’s law because it would allow owners of solar to sell to other utility customers in the immediate proximity. That privilege now belongs only to Florida’s utilities.
PPAs would allow national solar installers backed by multimillion dollar investment funds to provide rooftop systems to Florida electricity consumers at no upfront cost and relieve them of ownership maintenance responsibilities.
The PPA, which would be made legal by the FSC initiative, is the policy behind the national solar boom. Some 72% of 2014’s “explosive” U.S. solar growth was through TPO financing, according to a just-released GTM Research Market report.
Does FSC compromise consumer protections?
“We don’t think Floridians should have to sacrifice basic consumer protections in order to enjoy greater access to solar energy,” Batchelor believes. “Their amendment exempts big, out-of-state solar companies from Florida laws and regulations that protect consumers.”
Bubriski agreed, citing two specific sections of the FSC petition. A “solar electricity supplier,” explains subsection (1), “shall not be subject to state or local government regulation…”
Subsection (2) seems to indicate that “reasonable health, safety and welfare regulations, including, but not limited to, building codes, electrical codes, safety codes and pollution control regulations” cannot “prohibit or have the effect of prohibiting the supply of solar-generated electricity…”
“It is saying health, safety, and welfare is OK as long as it doesn’t inhibit the solar installers,” Bubriski explained. “It bans anything from getting in the way of their business.”
If passed, Bubriski believes, the FSC initiative would allow solar installers to challenge any local code or ordinance they perceive as inhibiting their business.
“That is an incorrect reading of the petition,” Cavros said. “It specifically ensures that state and local governments retain their authority to exercise their police powers for the protection of the health, safety, and welfare of the public.”
The language is primarily to pass muster with the Supreme Court and is no different than existing law, Cavros added, citing Florida Statutes, Title XI, Chapter 163, section 163.04 covering “energy devices based on renewable resources.”
It supports local codes and ordinances except ones that unreasonably make it impossible to build renewables, Cavros said. It is not the right to install solar that threatens the public.
“Regulation at the local level still protects the public interest,” Cavros went on. “That includes electrical standards and zoning standards. If it is a reasonable regulation intended to protect the public, any solar electricity supplier would have to meet it. A code would have to completely prohibit the installation. That is a pretty high bar.”
A solar provider could challenge a local authority’s enforcement of the code but it would be pointless to make “frivolous” challenges, Cavros said. “Current codes would have to be met. They are reasonable and they are there for a reason.”
Why did CSS win the poll?
“The good news is that our message is resonating,” Batchelor reported. “A recent Mason-Dixon poll shows our Smart Solar Amendment garnering 66% support while only 22% do not support.”
In response to speculation the poll was skewed by FSC opponents, Mason-Dixon Managing Director Bradford Coker told the Tampa Bay Times the polling research company paid for it. "We don't work for either group."
The CSS initiative polled Yes - 66%, No - 22%, and Undecided - 12%. The FSC initiative polled Yes - 30%, No - 45%, and Undecided - 25%.
“As with most constitutional amendments in Florida, getting on the ballot is made difficult by legal reviews of the language," the Mason-Dixon analysis explains.
Only the ballot language can explain the “sharp” difference in numbers on two similar solar proposals, the analysis continues. “The solar industry amendment is much more confusing to the average voter than the language offered in the counter-amendment.”
“The two competing solar amendments aimed at the 2016 ballot are complicated and confusing,” agreed Orlando Sentinel columnist Beth Kassab.
Getting 60% of Florida voters’ approval on such complicated language, Mason-Dixon’s analysis concludes, “will require a very well financed and executed campaign effort.”
A ballot initiative’s language must meet two technical legal requirements, Cavros explained. It must be on a single subject and the title and summary must not be misleading.
The CSS initiative “purports to create new rights in the Florida constitution to own solar panels. But the Florida constitution already provides the basic right to possess and protect property. That includes solar panels,” Cavros said. “The court would find that a clear legal defect. It may fool voters but not the Supreme Court.”
“Our committee has enlisted the help of John Sowinski, who is Florida’s foremost expert on statewide ballot initiatives,” Batchelor reported. “He has never been involved in writing any proposed amendment that has not been approved by the Supreme Court, and has never had an amendment he helped write defeated at the polls.”
Sowinki’s Consensus Communications “is well-versed in getting petitions successfully knocked of the ballot," Cavros countered.
The real challenge for Florida solar
CSS and FP&L’s Bubriski have concerns about the much debated shift of costs that some say solar-owners impose on non-solar owners.
“Smart Solar also allows the state to ensure that everyone who uses the electric grid helps pay to maintain it—so that consumers who don’t want or can’t afford solar aren’t forced to subsidize energy choices of those who do,” Batchelor promised. “Their amendment requires those who don’t want or can’t afford third-party solar electricity to subsidize grid access and use for those who do.”
Cavros pointed out that the claim of a subsidy is not conclusively supported by economic analyses, as some studies show rooftop solar adds more value for the grid than it imposes. “And their claim parrots power company talking points to stir up public opposition to the ballot initiative,” he said. “To argue that several thousand Florida solar customers are imposing costs on 9 million utility customers statewide isn’t grounded in reality.”
But the bigger question is whether solar is even a good fit for Florida.
“Our electricity rates are about 30% lower than the national average,” Bubriski said. “That is probably the biggest barrier to solar adoption. People invest in solar in other states to save money because their rates are high. Our rates are far lower than what independent providers can offer.”
Even with a net energy metering policy for systems as big 2 MW and other incentives, “it takes a long time to make your money back on solar whether you buy or you are the installer that leases it. That’s the math. And we don’t think we need to apologize for our low rates.”
“TPO wouldn't be feasible without a sufficiently low cost structure, which we don't expect to see in the near term,” GTM Research Sr. Solar Analyst Nicole Litvak agreed. “Despite this, Florida's residential market in on pace to grow by more than 60% in 2015.”
And in the longer term, Litvak added, ownership and TPO “will become more attractive financing options as costs come down.” Though even the FSC initiative won’t change their short term viability, “it will allow the companies with lower costs to make TPO available as soon as they can make the economics work."
Policy and Strategy VP of leading TPO player Clean Power Finance James Tong agreed. “Low rates make it difficult, but not necessarily impossible for TPO financing to be economically viable.”
But rates are only one factor, he explained. Others include the installed cost of solar, which is coming down, the amount of electricity a customer consumes, which is probably high in large parts of Florida because of the use of air conditioning, and the amount of energy a system can produce.
“Even if rooftop solar is largely uneconomical, there can be a sufficient number of potential prospects to create a viable TPO market," Tong said. "And if not, it will soon get there, given relative cost trends.”