TEC Cogeneration Inc. v. Florida Power & Light Co.

• Decision Date: 10 June 1996
• Docket Number: 94-4496,Nos. 94-4323,s. 94-4323
• Citation: TEC Cogeneration Inc. v. Florida Power & Light Co., 86 F.3d 1028 (11th Cir. 1996)
• Parties: TEC COGENERATION INC., RRD Corporation, as they are partners in South Florida Cogeneration Associates, Thermo Electron Corporation, Rolls-Royce, Inc., Plaintiffs-Appellees, v. FLORIDA POWER & LIGHT COMPANY, FPL Group, Inc., FPL Energy Services, Inc., Defendants-Appellants, Wayne H. Brunetti, Larry T. Atkinson, Joe C. Collier, Jr., Clark Cook, Defendants, Florida Public Service Commission, Movant. TEC COGENERATION INC., RRD Corporation, as they are partners in South Florida Cogeneration Associates, Thermo Electron Corporation, Rolls-Royce, Inc., Plaintiffs-Appellees, v. FLORIDA POWER & LIGHT COMPANY, FPL Group, Inc., FPL Energy Services, Inc., Defendants-Appellants, Wayne H. Brunetti, Larry T. Atkinson, Joe C. Collier, Jr., Clark Cook, et al., Defendants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1028

86 F.3d 1028

TEC COGENERATION INC., RRD Corporation, as they are partners

in South Florida Cogeneration Associates, Thermo

Electron Corporation, Rolls-Royce, Inc., Plaintiffs-Appellees, v. FLORIDA POWER & LIGHT COMPANY, FPL Group, Inc., FPL Energy

Services, Inc., Defendants-Appellants,

Wayne H. Brunetti, Larry T. Atkinson, Joe C. Collier, Jr.,

Clark Cook, Defendants,

Florida Public Service Commission, Movant.

TEC COGENERATION INC., RRD Corporation, as they are partners

in South Florida Cogeneration Associates, Thermo

Electron Corporation, Rolls-Royce, Inc., Plaintiffs-Appellees, v. FLORIDA POWER & LIGHT COMPANY, FPL Group, Inc., FPL Energy

Services, Inc., Defendants-Appellants,

Wayne H. Brunetti, Larry T. Atkinson, Joe C. Collier, Jr.,

Clark Cook, et al., Defendants.

Nos. 94-4323, 94-4496.

United States Court of Appeals Eleventh Circuit.

June 10, 1996.

James P. Atwood, Daniel M. Gribbon, Steven J. Rosenbaum, Washington, DC, for Appellants.

David H. Erichsen, Boston, Massachusetts, Charles J. Gray, Peter A. Spaeth, Boston, MA, for Appellees.

Appeals from the United States District Court for the Southern District of Florida (No. 88-2145-CIV-Atkins), Clyde Atkins, Judge.

ON PETITION FOR REHEARING AND SUGGESTION OF REHEARING EN BANC

Before EDMONDSON, Circuit Judge, HILL, Senior Circuit Judge, and MILLS ^*, District Judge.

PER CURIAM:

Upon consideration of the appellee's suggestion for rehearing en banc, treated as a petition for rehearing by the panel, the same is granted, and the opinion filed in this case on March 8, 1996, and published at 76 F.3d 1560, is modified in one respect. The first column, consisting of three full paragraphs, 76 F.3d at 1570, is deleted, and in lieu thereof the following three paragraphs, including two footnotes, are substituted:

We agree with the district court that the issue in this case is active supervision vel non. We disagree with the district court that the PSC's supervision was insufficient. The record reflects that the PSC played an active and substantial role "in determining the specifics of the economic policy" pursued by FPL in the areas of wheeling, rates, and interconnection. See Ticor, 112 S.Ct. at 2177.

Utilities, including suppliers of electrical energy, are traditionally heavily-regulated industries. It is not unusual for them to be given monopoly positions, as in Florida, with state regulation supplanting competition as the price and economic viability control. The record in this case reflects a history of active regulation. ¹ As to wheeling, after an eleven-month contested administrative proceeding, the PSC approved FPL's actions in denying the Cogenerators' wheeling request. As to rates related to cogeneration (backup, avoided cost, and interruptible), the record reflects that these rates are determined by PSC rulemaking and have been the subject of extensive and contested agency proceedings. Furthermore, the resulting rates...