## Facts

- A Florida municipal electric utility and an affiliated, out-of-state “merchant” wholesale generator jointly sought a Florida Public Service Commission (PSC) determination of need for a new generating plant in Volusia County.
- The merchant generator was not regulated by the PSC as a Florida public utility.
- Only a relatively small share of the plant’s output was intended for the municipal utility; most output was to be sold at wholesale to other utilities, largely for the Florida market but not exclusively.
- The request proceeded under the Florida Electrical Power Plant Siting Act and the Florida Energy Efficiency and Conservation Act (FEECA), which link plant siting and need determinations to statewide planning and utility obligations.
- The PSC granted the determination of need over dissent, and investor-owned utilities appealed directly to the Florida Supreme Court.

## Issues

1. Whether the PSC had statutory authority under the Siting Act and FEECA to issue a determination of need for a plant primarily proposed and operated as a merchant facility by an unregulated wholesale generator partnered with a municipal utility.
2. Whether the PSC’s need determination complied with the statutory framework governing need determinations, including the statutes’ focus on regulated utility planning and service obligations.

## Decision

- The Florida Supreme Court reversed the PSC’s order granting the determination of need.
- The Court held the PSC lacked statutory authority, under the statutes as written at the time, to approve a need determination for the merchant-plant arrangement presented.
- The Court concluded reversal was required because the defect was legal (absence of statutory authority), not factual, so additional proceedings would not cure it.

## Legal Principles

- The PSC is a creature of statute and may exercise only those powers expressly granted or necessarily implied; courts will not infer agency authority from policy preferences.
- Need determinations under the Siting Act and FEECA are tied to the statutory scheme governing regulated utilities’ planning and obligations to serve Florida retail load, not to facilitating unregulated entities’ wholesale marketing.
- A merchant generator that is not subject to PSC public-utility regulation is not, absent legislative authorization, a proper proponent for obtaining a PSC determination of need through a joint arrangement where most output is sold wholesale.
- Broad statutory policy goals (e.g., reliability, fuel diversity, competition) cannot substitute for clear legislative authorization to expand the class of projects or entities eligible for a need determination.

## Conclusion

The court vacated the PSC’s determination of need because the Siting Act and FEECA did not authorize the PSC to extend the need-determination process to a predominantly wholesale, unregulated merchant-generation project, even when presented in partnership with a municipal utility.


Tampa Electric Co. v. Garcia, 767 So. 2d 428 (Fla. 2000)