Challenge to Vogtle denied, but appeal planned

By Mary Landers – Savannah Morning News

Consumer and environmental groups are appealing a dismissal of their challenge to the Georgia Public Service Commission’s 2017 decision to continue the over-budget and behind-schedule construction of two additional reactors at Plant Vogtle.

In late December, Fulton County Superior Court Judge Shawn Ellen LaGrua granted the motion of Georgia Power, the lead owner of Vogtle and an intervenor in the case, to dismiss the groups’ petitions. LaGrua wrote that the PSC action was not a “final decision” and that the petitioners had not “exhausted all administrative remedies.”

“Georgia law is clear that a party aggrieved by an administrative agency’s decision must raise all issues before that agency and exhaust all available administrative remedies before seeking a judicial review of that agency’s decision,” she wrote.

The price tag to build two new nuclear units at Vogtle has nearly doubled to roughly $26 billion. It’s five years behind schedule. Residential ratepayers already pay about $100 a year in a nuclear pre-construction fee. The delay and increased cost are expected to result in $5 billion of additional profit for Georgia Power, which owns 45.7 percent of the project. The other co-owners are Oglethorpe Power Corp., Municipal Electric Authority of Georgia, and Dalton Utilities.

Georgia Interfaith Power & Light, the Partnership for Southern Equity and Georgia Watch challenged the PSC decision last year after the commission approved continued construction of the Plant Vogtle expansion and billions of dollars in cost overruns in its 17th semi-annual Vogtle Construction Monitoring Report, known as the 17th VCM. They charged that the approval violated state law and the commission’s own rules concerning private discussions between the commissioners and Georgia Power and that it favored Georgia Power shareholders over its ratepayers.

Now they say the Superior Court decision means that dissatisfied customers cannot raise concerns in court about the unfairness of that process until 2022 or later, after the project is complete. Attorneys representing the three groups filed a notice of appeal Wednesday.

“The people of Georgia have been pre-paying for this mismanaged project since 2011, while the price tag has ballooned and the project timeline has slipped again and again,” said Liz Coyle, executive director of Georgia Watch. “Unless the Court reverses the Commission’s decision, Georgia Power customers remain exposed to significant financial risk with seemingly no end in sight.”

Georgia Watch is represented by Roy Barnes and John Salter of the Barnes Law Group LLC.

“The commission effectively gave Georgia Power a blank check by approving project continuation without the cost cap recommended by their own staff,” Salter said. “The utility’s customers are saddled not only with the higher construction costs, but up to $5 billion in increased profit for Georgia Power’s shareholders.”

Kurt Ebersbach of the Southern Environmental Law Center, who is representing Partnership for Southern Equity and Georgia Interfaith Power and Light, said the court dismissed the appeal on technical grounds without addressing its substance. He disagreed with the court’s argument that the decision of the PSC was not final.

“There were procedural irregularities unique to the 17th VCM,” he said. “They have to be addressed now, not four or five years down the road.”

Among those irregularities were the private discussions between commissioners and Georgia Power.

“It boils down to we think the commission and Georgia Power more or less colluded to keep this thing going,” Ebersbach said.

But he also noted that the law provides an exception about waiting for a final decision “if the review of the final agency decision would not provide an adequate remedy.” It can’t, Ebersbach said, because that final agency decision at the end of the Vogtle construction won’t be able to address a key decision made in 2017, which was whether the construction should continue.

LaGrua addressed that exception in a footnote, writing that “the Court finds that this exception does not apply to the current case,” but offering no further explanation.

The PSC did not join Georgia Power in its motion to dismiss. The utility has repeatedly stated that “the decision by the Georgia PSC to continue the Vogtle project was well within its authority and complied with all applicable laws.”

Copyright © 2019 Savannah Morning News

Source: Savannah Morning News