Ga. Interfaith Power & Light, Inc. v. Ga. Power Co., A19A1426

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: Rickman, Judge.
• Citation: 352 Ga.App. 670,835 S.E.2d 656
• Parties: GEORGIA INTERFAITH POWER AND LIGHT, INC. et al. v. GEORGIA POWER COMPANY.
• Docket Number: A19A1426
• Decision Date: 29 October 2019

352 Ga.App. 670
835 S.E.2d 656

GEORGIA INTERFAITH POWER AND LIGHT, INC. et al.
v.
GEORGIA POWER COMPANY.

A19A1426

Court of Appeals of Georgia.

October 29, 2019

835 S.E.2d 657

Kurt David Ebersbach, Stacy Marie Shelton Esq., Jillian Leah Kysor, Roy E. Barnes, John Frank Salter Jr., for Appellant.

Kevin Greene, Steven James Hewitson, Thomas Edward Reilly, Atlanta, for Appellee.

Rickman, Judge.

352 Ga.App. 670

Following the Georgia Public Service Commission's ("the PSC") order regarding the 17th Georgia Power Company's Plant Vogtle construction monitoring report ("VCM"), Georgia Interfaith Power and Light, Inc., Partnership for Southern Equity, Inc., and Georgia Watch filed petitions for judicial review of a final decision by the PSC, which were consolidated. The superior court granted Georgia Power Company's motion to intervene and subsequently, Georgia Power filed a motion to dismiss the petitions for lack of jurisdiction.

The superior court granted Georgia Power's motion to dismiss, finding that the PSC's 17th VCM order was not appealable. The appellants contend that the superior court erred by granting Georgia Power's motion to dismiss.¹ For the following reasons, we affirm

835 S.E.2d 658

in part and vacate and remand in part with direction.

We apply a de novo standard of review to the superior court's grant of a motion to dismiss. See Alcatraz Media v. Yahoo , 290 Ga. App. 882, 882, 660 S.E.2d 797 (2008). The record shows that in 2009, the PSC approved Georgia Power's construction of two new Units, Units 3 and 4, at the already existing Plant Vogtle site. The order approving Units 3 and 4 required Georgia Power to file semi-annual monitoring reports with the PSC, and the PSC has conducted multiple VCM proceedings to consider these reports.

In March 2017, the lead contractor for Units 3 and 4 declared bankruptcy. Approximately five months later, Georgia Power filed a

352 Ga.App. 671

17th semi-annual construction monitoring report. In the filing, Georgia Power requested, inter alia,: that "the [PSC] approves the new cost and schedule forecast and find[ ] that it is a reasonable basis for going forward;" that Georgia Power will "retain[ ] the burden of proving all capital costs above $5.68 billion were prudent"; "[t]hat while [the] [PSC] will make no prudence findings in the ... VCM 17 proceeding ... the [PSC] recognizes that the certified amount is not a cap, and all costs that are approved and presumed or shown to be prudently incurred will be recoverable by Georgia Power"; and "[t]hat as conditions change and assumptions are either proven or disproven, [Georgia Power and the other Plant Vogtle owners] and the [PSC] may reconsider the decision to go forward."

Subsequently, the PSC issued a procedural and scheduling order to govern the 17th VCM proceeding. The scheduling order outlined two issues to be addressed in the 17th VCM proceeding: (1) "Whether the [PSC] should verify and approve or disapprove the expenditures as made pursuant to [the order approving Units 3 and 4] issued by the [PSC]."; (2) "Whether the [PSC] should approve, disapprove, or modify [Georgia Power's] proposed revisions in the cost estimates, construction schedule, or project configuration and whether the proposed costs are reasonable."

Following a multiple day hearing on the 17th VCM, the PSC issued an order finding "that the $542 million invested by Georgia Power within the 17th VCM ... reporting period were reasonable and necessary, and are hereby verified and approved." The PSC included a caveat that "[t]he [PSC] is only confirming the expenditures made in association with the Vogtle Project during this reporting period and it does not preclude the [PSC] from subsequently excluding those expenditures from rate base upon a finding of fraud, concealment, failure to disclose a material fact, imprudence, or criminal misconduct." The PSC further found that it was appropriate to continue with the construction of Units 3 and 4, that Georgia Power's revised schedule and cost forecast was reasonable, and that the revised project management structure was approved.

Additionally, the PSC cautioned that it

[found] as a matter of fact and conclude[d] as a matter of law that no directives or findings in any part of this Order suggest that there is a cost cap or that the [PSC] has approved or disapproved the recovery of any costs from customers. All decisions regarding cost recovery from customers will be made later in a manner consistent with Georgia law and the Stipulation approved by the [PSC] on

352 Ga.App. 672

January 3, 2017 and this decision.^{[2 ]} The [PSC] further finds that any costs spent up to the revised cost forecast will be deemed reasonable, but will be subject to the findings and presumptions as defined in the Stipulation approved on January 3, 2017. This includes th[at] [Georgia Power] retain[s] the burden of proof on prudency on all capital costs above $5.680 billion.

835 S.E.2d 659

The order explained that, "[t]he [PSC] finds that it will continue to conduct semi-annual VCM reviews and, as appropriate, verify and approve all expenditures on a semi-annual basis regardless of whether they exceed the original certified amount." Further, "[d]uring these VCM reviews, the [PSC] will not determine prudence, nor will it assure cost recovery to [Georgia Power]. All [PSC] decisions regarding cost recovery will be made after a prudence review at the end of construction of Units 3 and 4."

Following the PSC's 17th VCM order, the appellants filed petitions for judicial review, which were consolidated. Georgia Power intervened in the action and filed a motion to dismiss the petitions for lack of jurisdiction. The superior court granted Georgia...