PSC says it does have authority

By Steve Estes

While local governmental attorneys and others involved in the seemingly endless battle over the potential electrification of No Name Key seem to believe that last month’s ruling by Circuit Court Judge David Audlin abdicating jurisdiction to the Public Service Commission leaves some potentially litigious decisions still on the table, General Counsel for the PSC Kurt Kiser says that’s not the case in their halls.

“I hear that the county attorney and Keys Energy Attorney believe that Judge Audlin’s dismissal leaves some things unsettled concerning No Name Key regardless of the PSC actions taken,” said Kiser. “We don’t necessarily believe that to be the case.”

Kiser said he believes that a decision made by the PSC would supersede all other jurisdictional questions.

The Public Service Commission, he says, was formed in the days of the railroad barons to prevent the railroads, which had a monopoly on transit by rail, from showing bias against the types of goods to be transported, the companies they would transport for, and to prevent rates that would harm the general public.

The PSC evolved from that early mission into what it is today, he says, but its overriding mission is the same.

That mission, he says, is to bring an unbiased eye to the table, one capable of looking at the “total picture” with the expertise and experience to do just that.

“We deal with issues like this all the time,” said Kiser.

Kiser says that the PSC’s jurisdiction derives from the federal Sherman Anti-Trust laws through the state legislature.

“The anti-trust laws were written to prevent companies from establishing a monopoly over necessary services,” he said. “But there is an exception written into the Sherman Anti-Trust legislation that provides the need for something like the PSC.”

The battle to electrify No Name Key has been going on for decades. After the last legal volley, the county wrote into its comprehensive land use plan’s land development regulations a prohibition against the extension of public utilities into Coastal Barrier Resource System units, of which No Name is but one of 15.

Using that prohibition as a backdrop, the county has denied easements for the extension of an electrical grid to No Name Key over conservation lands it owns on the island, and has said that the prohibition will prevent the county building department from eventually issuing permits for the individual homeowners to hook into lines even if they were to be installed.

With those questions out there, the county sought a declaratory action from the circuit court to clarify what county legal staff called, the “authorities and responsibilities” of the county in allowing electrification of the island.

Currently there is no commercial power or water to No Name Key. The 43 homes there are powered by solar arrays or generators, or a combination of the two, with potable water from cisterns.

The exception to which he refers is the necessary monopoly clause of the Sherman Anti-Trust legislation, says Kiser.

“Generally the exception holds that services which are necessary to the public good, and are provided through a monopolistic avenue, require government regulation,” said Kiser. “When the government steps in as a regulator, it removes the framework of the anti-trust laws and instead relies on the regulatory agency to ensure that bias and discrimination in delivery of services does not exist.”

The state has to have the PSC to regulate those necessary services that are delivered via monopolies, says Kiser.

“From day one, the mission of the PSC was to control monopolistic activities and ensure a level playing field,” said Kiser.

The real issue, he says, is one of IOUs, or Investor Owned Utilities where contracts for exclusive services exist with governmental agencies, or where the governmental agency owns the utility.

“We have IOUs where they will annex large portions of mostly undeveloped land to their service boundaries. Without the oversight of the PSC, the utility, with a profit motive, could charge whatever rate it wished, provide whatever level of service it desired,” he said.

The PSC prevents such things from happening, he says.

“We are there to prevent say an IOU from extending premium service to an affluent community where they are sure the bills get paid, and denying the same level of service to a less-affluent, rural community where bills may not be paid as promptly, or at all,” he said.

It was precisely to avoid that type of activity that the legislature vested sole jurisdiction in such matters to the PSC, he says.

“And historically, the courts have ruled to PSC jurisdiction on all energy delivery matters,” Kiser said.

After Audlin dismissed the declaratory action, No Name Key resident Bob Reynolds filed with the PSC to ask it to force Keys Energy to ignore the county’s land-use prohibitions and proceed to string a power grid to No Name Key.

Commercial power opponents and the county joined in an appeal of Audlin’s decision. Keys energy has asked the PSC to dismiss Reynolds’ filing as moot since the KEYS Utility Board approved the line extension agreement over the recommendation of its attorney.

Kiser said the PSC is waiting to see who joins in the court appeal, and what they have to say, before making any further decisions in the matter.

“We always take a big picture approach. That’s what we’re set up to do,” said Kiser.

He said that no decision has yet been made on when Reynolds’ motion might be heard, or when KEYS’ request to dismiss might be heard.

The Monroe Board of County Commissioners last month authorized the county attorney’s office to file to intervene in the PSC case because, as Chief Assistant County Attorney Bob Shillinger phrased it, “The PSC is being asked to litigate your power to enforce your land development regulations.”

But Kiser said the PSC is still discussing whether it will wait for the court’s decision on the declaratory action dismissal before it moves.

Kiser said that the question of whether the county could be forced to issue building permits against its own prohibitions, “Isn’t in the court yet,” and would not commit to an opinion.

Both Shillinger and KEYS’ Attorney Nathan Eden have said that the circuit court’s dismissal of the declaratory action leaves a lot of unanswered legal questions on the table.

“Where others seem to think future actions aren’t clear, we believe they are clear,” said Kiser.

Kiser also would not comment on other aspects of the case, such as federal prohibitions against development in a CBRS unit, the county/federal agreement through the Habitat Conservation Plan/Incidental Take Permit and the timing of property purchase by those who bought property when the prohibition was in place.

He was also noncommittal concerning the county arguments that properties on No Name Key aren’t without power, just commercially delivered power.

No Comments »

Leave a Reply