Georgia groups challenge ruling dismissing appeal of flawed Plant Vogtle decision

Senior Attorney Kurt Ebersbach cross-examines Georgia Power expert witnesses about the Plant Vogtle project before the Georgia Public Service Commission in this 2017 photo. (© Emily Driscoll/SELC)

Georgia groups are challenging a ruling from the Fulton County Superior Court late last month, which dismissed their appeal of the Georgia Public Service Commission’s decision approving forecast cost increases at Plant Vogtle, where the price tag to build two new nuclear units has nearly doubled to roughly $26 billion. Attorneys representing the three groups filed a notice of appeal today.

“The court dismissed the appeal on technical grounds without addressing its substance,” said Senior Attorney Kurt Ebersbach. SELC is representing Partnership for Southern Equity and Georgia Interfaith Power and Light as they aim to protect customers from this massively over-budget project. Georgia Watch is also part of the case, represented by former Georgia Governor 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 the commission’s 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.”

Issued on December 21, 2018—exactly one year after the PSC approved continuation of the Vogtle nuclear expansion—the court’s decision found that dissatisfied customers cannot raise concerns about the unfairness of that process until 2022 or later, after the project is complete.

Despite Georgia Power’s repeated assurances that the project will stay on schedule, the Public Service Commission’s own staff has consistently expressed concerns about the likelihood of timely completion, even under the currently approved 5-year scheduling delay. Just last month, commission staff filed a report with strong recommendations for additional consulting expertise to oversee the Vogtle expansion to keep the project on track and prevent more billion-dollar budget-busting surprises.

In addition to the ongoing legal challenge, today’s action follows the groups’ participation in numerous proceedings before the Public Service Commission on the Vogtle project’s cost and schedule. In early 2018, the groups filed the appeal in Fulton County Superior Court, charging that the commission’s approval violated state law and the commission’s own rules concerning “ex parte” communications—i.e. private discussions between the commissioners and one of the parties involved, in this case Georgia Power.

In May, the groups filed a joint motion for limited discovery regarding the one-sided communications between the commission and Georgia Power in the days leading up to the commission’s decision to continue the vastly over-budget project, and to present evidence of those communications to the court.

In an October hearing before the Fulton County Superior Court, the parties presented oral argument concerning the two pending motions: the motion seeking limited discovery and a motion to dismiss filed by Georgia Power. The court ruled to dismiss the groups’ appeal in December 2018 on the basis that the commission’s decision was not “final” and appealable until the project is complete.

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