Court Again Rules that Flawed Decision to Continue Vogtle Project May Not be Challenged Until Project is Finished

ATLANTA, GA—A Fulton County Superior Court has again declined to address the merits of a challenge to the 2017 decision by the Georgia Public Service Commission (PSC) to approve continuation of the Plant Vogtle expansion despite billions of dollars in cost overruns and more than five years’ delay.

This is the second ruling by the Court holding that it lacked jurisdiction to consider the merits of the challengers’ claims. It comes after the Georgia Court of Appeals partially vacated the Court’s prior ruling and remanded the matter for further consideration.

The Southern Environmental Law Center represents Partnership for Southern Equity and Georgia Interfaith Power & Light, and the Barnes Law Group represents Georgia Watch in the appeal. The groups are currently considering options at this time.

In response to the decision, the following statement is from Kurt Ebersbach, Senior Attorney for the Southern Environmental Law Center:

“We are disappointed by the decision, which holds that the Court does not have jurisdiction to hear our claims until the project is complete. This decision means we must wait several years to press the merits of our claims, which will make it harder to protect customers from bearing the full brunt of this costly project, the most expensive in state history.”

Background:

In early 2018, the groups filed the appeal in Fulton County Superior Court, charging that the procedure to greenlight continued construction of the Vogtle project 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 May 2018, the groups filed a joint motion for limited discovery regarding the one-sided communications between the PSC 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 2018 hearing before the Fulton County Superior Court, the parties presented oral argument concerning the two pending motions before the Court: the motion seeking limited discovery, and a motion to dismiss filed by Georgia Power.

In an order issued on December 21, 2018—exactly one year after the PSC’s unanimous vote to approve continue the project despite the dramatically changed circumstances—the Court ruled that dissatisfied customers cannot raise concerns about the unfairness of the PSC’s process until 2022 or later, after the two new nuclear units are complete.

The parties appealed the Fulton County Superior Court’s decision to the Georgia Court of Appeals in January 2019. In October 2019, the Court of Appeals vacated part of the lower Court’s ruling regarding the challengers’ contention that postponing review would not adequately remedy their claims. The Court of Appeals remanded the case back to the lower Court to determine whether the groups had met their burden to show that postponing their appeal until after the project is finished would not provide them an adequate remedy.