Brian Rickman, Georgia Court of Appeals. (Photo: John Disney/ALM)

The Georgia Court of Appeals revived a challenge to continued funding for Georgia Power Co.'s two new reactors at Plant Vogtle, ruling a trial judge must determine whether allowing the project—already billions of dollars over budget—to be completed before a court can weigh in would result in "irreparable harm" to the plaintiffs.

Estimates for the costs of the project to be prepaid by ratepayers was initially set at $5.8 billion, but have continued to grow. In 2017, during a semi-annual review, the Public Service Commission voted to allow the costs to continue to be added to customers' bills and to decide when it was finished whether the increases were "prudent."

Georgia Watch, Georgia Interfaith Power & Light and Partnership for Southern Equity filed petitions for judicial review of the decision but last year Fulton Superior Court Judge Shawn LaGrua dismissed them, ruling the state Administrative Procedures Act barred any court challenge to an agency's ruling other than a "final order." 

In a footnote, she also ruled the plaintiffs argument that an exception to the act for cases where delay would not provide an adequate remedy did not apply.

On Tuesday, an opinion written by Judge Brian Rickman with the concurrence of Presiding Judge M. Yvette Miller and Judge Clyde Reese, said LaGrua's ruling on the APA was correct.

But it said her footnote was unclear as to whether and why she "determined that this was the type of case where the lack of adequate remedy exception" was applicable. The panel instructed her to "analyze whether the appellants met their burden to show that review of the PSC's final order would not provide them an adequate remedy," it said. 

"We're glad to have another day in court to show that the commission's decision to continue Plant Vogtle despite dramatic changes to the cost and schedule and increased risk to customers was rushed and procedurally improper," said SELC senior attorney Kurt Ebersbach in a statement.

"We believe the decision by the Georgia PSC to continue the Vogtle project was well within its authority and complied with all applicable rules and laws," said GPC spokesman John Kraft. "Additionally, Georgia Power filed a motion to dismiss the appeals because we believe that the [2017] order is not appealable at this time."