Energy Preemption Bills Hurt Small Businesses and Shift Policymaking to the Courts

March 25, 2021

Energy Preemption Bills Hurt Small Businesses and Shift Policymaking to the Courts

We elect officials so, on our behalf, they can debate policies and make decisions that will ultimately better our lives. So why would elected officials delegate that authority to the courts?

Unfortunately, that appears likely if the Florida Legislature passes the proposed energy preemption legislation. While the full text of the bill (SB 1128 and HB 919) is only about half as long as this column, the language is so overwhelmingly broad that it would create a cascading series of unintended – and undesirable – consequences.

This legislation could affect policies ranging from residential zoning designations and the location of industrial pipelines to minimum safety setbacks and the placement of massive solar farms. But absent from the legislation is any clarity about the specifics or conversation about its impact on small businesses.

That’s an invitation for one thing: lawsuits.

If these bills pass, they would invite legal challenges related to any number of current or future policies. Defense of those lawsuits would come out of the pockets of local residents and small businesses, costing millions of dollars that would benefit trial lawyers, but not taxpayers. It would ultimately force the courts to hammer out the details – determinations by judges rather than elected officials.

I have tremendous regard for bill sponsors Sen. Travis Hutson and Rep. Josie Tomkow, and the Legislature has often looked to provide clarity through tort reform that offers businesses more certainty – but unfortunately this legislation will have the opposite effect. There is undoubtedly a more tailored approach that would be less likely to create a devastating domino effect of questions that could end with the courts.

Beyond those challenges, the measure could actually impede progress if a community wants to take steps to secure its own energy independence and prevent the kind of energy crisis we’ve seen recently in Texas and California. That would undermine the local choice of those who seek to diversify energy sources.

Gov. Ron DeSantis has boldly called for the Legislature to approve $1 billion in funding to make Florida more resilient. Conservatives like Sen. Ana Maria Rodriguez are also coming to the table with forward-thinking ideas that would make schools – which also serve as emergency shelters – more resilient and cost-effective. Many utilities are also working to harden energy infrastructure and make meaningful investments in solar energy.

With all the attention on sea-level rise and resiliency, legislators shouldn’t make it more difficult for businesses that offer renewable energy to operate here. Let’s not take a step backward by injecting legal uncertainty and regulatory complexity into Florida’s energy policies when there are clearer ways to accomplish the same goal and avoid job-killing legislation.

We don’t need laws that essentially delegate policymaking to the courts, or that make it harder for families and businesses to keep the lights on during a crisis. My hope is that our elected state legislators will narrow the scope of this bill and avoid costly court challenges that make it more difficult to do business in Florida.

George Riley

Executive Director

CCE- Florida