State Seeks to Short-Circuit Climate Lawsuit

Article reposted with permission from The News Service of Florida.

The state is seeking to end a lawsuit filed by a group of young adults who allege the Florida Public Service Commission has improperly signed off on plans that can help lead to pollution-emitting power plants that contribute to climate change.

Lawyers in the state Attorney General’s Office filed a motion Friday in Miami-Dade County circuit court, arguing that the lawsuit should be dismissed. The six plaintiffs argue that the Public Service Commission’s actions have violated their rights under the state Constitution, including the right to “to enjoy and defend life.”

The case centers on what are known as 10-year site plans, which utilities submit to the regulatory commission for review. The plans detail issues such as future electric-generating needs and potential power-plant projects.

The lawsuit, filed in October and revised in December, contends that the commission plays a “gatekeeping” role in reviewing the plans and that by signing off it has “prevented the promotion of clean renewable energy.”

“The commission’s conduct has created and locked in for decades a fossil fuel-dependent electricity sector in Florida that emits nationally and globally significant amounts of climate pollution into the atmosphere,” the lawsuit said.

But the state’s lawyers raised a series of arguments in Friday’s motion to dismiss the case, including that the commission doesn’t determine whether power plants are built. It said decisions are made by the governor and Florida Cabinet, which act as a power-plant siting board, and the state Department of Environmental Protection.

“Plaintiffs’ position is that ending the use of fossil fuels in power plants is the only way to stop or prevent their alleged injuries,” the state’s motion said. “However, the plain language of the operative laws show that even if this court does exactly what plaintiffs ask and directs the PSC (the Public Service Commission) to find future TYSPs (10-year site plans) unsuitable, that alone would not close existing plants or stop the Department of Environmental Protection or the siting board’s certification and approval of any future fossil-fueled power plants. To the contrary, the statutory authority plainly shows the PSC’s characterization of a TYSP as suitable or unsuitable has no bearing on any utility’s ability to obtain approval and certification of fossil-fueled power plants from the siting board.”

Also, the state’s motion argued that the case involves “nonjusticiable political questions” because the Legislature sets energy policy and delegates duties to the commission.

“The entire amended complaint (the revised version of the lawsuit) is based on the Legislature’s policy decisions regarding energy, the use of fossil fuels, and environmental impacts,” the motion said. “Thus, the plain language of the Constitution and Florida statutes demonstrate these policy areas are squarely in the discretion of the Legislature and political process and must not be regulated or intruded on by the judiciary.”

But the lawsuit alleged that the commission’s “conduct leads to substantial amounts of climate pollution that injures plaintiffs, thereby worsening already dangerous conditions and serving as a barrier to the transition to renewable energy.”

“In carrying out its statewide energy planning and oversight responsibilities under (a section of state law), the commission perpetuates and locks in a fossil fuel-dependent electricity sector in Florida that produces nationally and globally significant levels of climate pollution that worsen the existing harms plaintiffs are suffering, and cannot escape, in MiamiDade County,” the lawsuit said. “This unlawfully infringes upon plaintiffs’ fundamental and inalienable right to enjoy and defend life guaranteed by (part of the Constitution).”

The plaintiffs range in age from 18 to 25 and live in Miami-Dade County. The lawsuit contends that climate change poses “existential threats” to young people in the county, affecting their health and posing risks from such things as sea-level rise.

While Florida utilities in recent years have significantly expanded the use of solar energy, they overwhelmingly rely on natural gas to fuel power plants. The lawsuit focuses on natural-gas plants.

The lawsuit is backed by Our Children’s Trust, an organization that also has launched similar cases in other states. In addition to citing part of the Florida Constitution that includes the right to “to enjoy and defend life,” it points to another part that says no “person shall be deprived of life, liberty or property without due process of law.”

But in the motion to dismiss, the state’s attorneys argued that “neither of these constitutional provisions entitle plaintiffs to a certain type of energy generation or environmental condition. Thus, plaintiffs effectively ask this court to create a new fundamental right that has no basis in the Florida Constitution or in Florida law.”