Boies Schiller's Stuart Singer Wins 2 Appeals for FPL on Rates (OK) and Refunds (Not)

ALM Media
Updated

Stuart Singer, with Boies Schiller Flexner. Photo: J. Albert Diaz/ALM

Stuart Singer

Boies Schiller Flexner

Stuart Singer successfully argued two appeals for Florida Power & Light Co. in the U.S. Court of Appeals for the Eleventh Circuit and the Florida Supreme Court.

In Newton v. Duke Energy Florida, the U.S. Court of Appeals for the Eleventh Circuit unanimously affirmed the dismissal with prejudice of a putative class action brought against Florida Power & Light Co. and Duke Energy Florida LLC.

The plaintiffs sought more than $1 billion in refunds from the utilities under Florida’s Nuclear Cost Recovery System regulation, which allows utilities to recover the costs of nuclear plant planning and construction.

The case asked whether the state program was preempted by the federal Atomic Energy Act or violated the dormant commerce clause of the U.S. Constitution. Singer argued the case before U.S. District Judge William P. Dimitrouleas in Fort Lauderdale, who dismissed the suit with prejudice, and before the Eleventh Circuit last year.

The opinion issued July 11 establishes a precedent on the scope of state authority in nuclear plant financing. The federal appellate court found the clause addresses economic protectionism by states, not companies, leaving the plaintiffs "well beyond the zone" of protection. The court also found the state cost-shifting law was not preempted by federal law.

In Sierra Club v. Julie Imanuel Brown, the Florida Supreme Court unanimously rejected the Sierra Club’s challenge to state Public Service Commission approval of FPL’s base rate case. For public utilities, rate cases are generally the most important litigation companies can face as they establish allowable rates and return on equity for a four-year period.

The PSC approved a settlement resolving all rate issues. The Sierra Club challenged the allowance for over $600 million in cost recovery for building “peakers’’ — gas-fired plants used to meet peak power demand. Singer again argued for FPL.

The court’s unanimous opinion upheld commission approval of the rate settlement, found the prudency of the peakers was established and created a precedent making clear that settlements of contested regulatory matters may be approved if in the public interest without express findings on the subsidiary issues covered in a settlement.