The Court started by examining section 366.93, F.S. The Court held that the statutory language that directs the PSC to establish cost recovery mechanisms “for the recovery of costs incurred in the siting, design, licensing, and construction of a nuclear power plant, including new expanded, or relocated electrical transmission lines and facilities that are necessary thereto, or of an integrated gasification combined cycle power plant” provides sufficient standards to determine if the PSC is complying with the statute. The Court noted that the statute only authorizes the PSC to allow the recovery of “prudently incurred costs.” While SACE argued that such language did not provide sufficient standards to provide any real guidance to implement the statutory mandate, and was therefore an improper delegation of legislative power, the Court disagreed, noting that statutes and caselaw have in many cases applied the prudence standard in the context of setting public utility rates.
The Court next examined whether the PSC could have found that FPL and PEF had demonstrated a sufficient intent to build to justify approval of preconstruction cost recovery. The Court noted that since such a finding of intent was a factual issue, SACE would have to show that there was no competent, substantial evidence to support the PSC’s finding if SACE was to prevail. As section 366.93 defined costs as expenses involved in “siting, licensing, design, construction, or operation of a plant”, the utilities would have a right to recover costs if they could establish any of those conditions. The Court concluded that the efforts of FPL and PEF to obtain necessary regulatory approval for the nuclear power plants provided sufficient evidence for the PSC to find an intent to build, and therefore, authorize cost recovery by the utilities.