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Florida Supreme Court Says FPL Can Charge Customers to Clean Up the Company's Pollution

Florida Supreme Court Says FPL Can Charge Customers to Clean Up the Company's Pollution
Courtesy of FPL

Florida Power & Light's Turkey Point Nuclear Generating Station in South Miami-Dade has leaked saltwater into the Biscayne Aquifer, South Florida's main source of drinking water. But the Florida Supreme Court said yesterday in a unanimous ruling that FPL is allowed to make Florida residents pay to clean up the mess its equipment created.

"Safeguarding the Biscayne Aquifer from future saline intrusion requires the cleanup of existing saline intrusion, and that action protects the environment from future harm," the judges wrote.

Turkey Point infamously uses a nuclear-wastewater cooling method that is unique in the country. Rather than using standard towers (as seen on the Simpsons), Turkey Point funnels used water through a 5,900-acre series of canals that stretch out along Biscayne Bay. Unfortunately, those canals were built in 1972 and have since sprung some massive leaks. They've created a huge saltwater plume that now threatens Miami's central source of drinking water.

Since the plume was discovered, FPL has been less than enthusiastic about cleaning it up. The state began monitoring the plant more closely in 2009. In 2013, the Miami-Dade County Department of Environmental Management said "there is hypersaline water attributable to FPL’s actions in the groundwaters outside the boundaries of the [CCS], which exceeds County water standards and criteria."

(FPL maintains that the plume is not currently impacting drinking water and that the saltwater plume existed before Turkey Point was constructed, a spokesperson said after this story was initially published.)

Then, by 2014, "monitoring data allowed regulators to conclude that CCS [cooling canal system] waters had infiltrated into the Biscayne Aquifer as much as three miles west of the CCS, and that the CCS was releasing, on average, 600,000 pounds of salt per day into the Biscayne Aquifer," the Florida Supreme Court wrote yesterday. In June 2016, the state finally ordered FPL to fix its mess within ten years.

FPL then asked the Florida Public Service Commission (PSC) — the state body that oversees Florida's electricity monopolies — if it could raise customer rates by $176 million to cover cleanup costs. The PSC eventually said the company could raise rates by a maximum of $132,577,031.

As a fix, FPL proposed a joint cleanup plan with Miami-Dade County that environmentalists also lambasted as potentially dangerous and a way to use government agencies to subsidize its cleanup. FPL instead argued the plan was mutually beneficial to both Miami-Dade and the power utility. Critics also warned that the cleanup plan could take 60 years, far longer than the power utility claims.

But the PSC's ruling was, of course, controversial. For one, critics argue that FPL can easily afford to cover the costs by itself because its parent company — the Juno-based NextEra Energy — reported a $6.6 billion net profit in 2018 alone. (FPL has faced similar backlash after trying to raise rates to clean up after major storms, including Hurricane Irma.) And even if NextEra weren't raking in that much cash, the company's numerous environmental critics say FPL should cover the costs from a moral standpoint, because FPL's own technology was responsible for the saltwater plume. Eventually, the Florida Office of Public Counsel, a state body representing the interests of Florida citizens and ratepayers, appealed the PSC's ruling all the way to the Florida Supreme Court.

But the state's highest court yesterday ultimately sided with FPL. In an 18-page opinion, the justices wrote that the company was within its rights to ask for the rate upgrade. Turkey Point has been under a state monitoring agreement since 2009, and the Supreme Court ruled that the 2009 legal agreement allows FPL to raise rates to fix water-quality issues — even if it created them. State law also allows FPL to raise rates to cover "prudently incurred environmental compliance costs."

The judges explained:

In such a situation, the remediation of past harm through abatement of the pollution-causing source and cleanup of contaminated resources or ecosystems is an essential part of shielding as-yet uncontaminated ecosystems, or portions thereof, from harm. Perhaps unlike some other kinds of protective measures, actions prudently needed to “protect the environment” can primarily remedy existing conditions caused bypast actions, provided the harm in question continues to adversely impact the environment. This would be especially true where continuing environmental damage is expected to spread and increase if remedial action is not taken.

In a brief filed with the court, however, the Office of Public Counsel had argued FPL wasn't trying to raise rates to keep up with environmental standards but to clean up its own mess.

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“The money at issue will not pay for ‘compliance’ with laws or regulations designed to protect the environment, but instead will explicitly pay for FPL’s noncompliance because the costs are paying for cleaning up the effects of decades of FPL’s past, unlawful pollution,” the office argued.

This story has been updated to include comments from an FPL spokesperson.

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