On August 1, 2008, the Georgia Power Company filed an application with the Georgia Public Service Commission PSC to certify two new nuclear units at Plant Vogtle and to approve an updated Integrated Resource Plan. The application also sought approval by the PSC to allow costs from the “construction work in progress” of the new units to be included in Georgia Power’s rate base in the form of a nuclear tariff starting in 2011. The PSC published public notice of the proceedings on the application several times in August and September 2008. Several public hearings on the application were held, after which an agreement between Georgia Power and the PSC was made except for the issue of the nuclear tariff. The PSC’s Public Interest Advocacy Staff opposed the nuclear tariff and contended that the construction costs should be added to the rate base once the project was completed. While the certification proceeding was pending, the General Assembly passed the Georgia Nuclear Energy Financing Act, codified as OCGA § 46-2-25 c.1, which amended OCGA § 46-2-25 to allow for the recovery of construction costs for nuclear power plants before completion of construction. Ga. L. 2009, pp. 39-40. After the passage of OCGA § 46-2-25 c.1, the PSC issued the certification order on Georgia Power’s application on March 30, 2009, which certified the proposed new units at Plant Vogtle and found that the nuclear tariff should be included in the rate base starting January 1, 2011. In allowing the nuclear tariff, the PSC stated that its inclusion was mandated by OCGA § 46-2-25 c.1, but was also supported by the evidence submitted in the relevant proceedings.
On April 9, 2009, Appellants Fulton County Taxpayers Foundation, Inc., and John S. Sherman, who is a taxpayer and resident of Fulton County, submitted an application to intervene in the above proceedings, and the application was denied by the PSC on May 14, 2009 as untimely. On April 29, 2009, Appellants filed a petition for declaratory judgment challenging the constitutionality of OCGA § 46-2-25 c.1, mandamus, and judicial review against the PSC and its members in their official capacities, as well as Sonny Perdue in his official capacity as Governor Appellees. The trial court permitted Georgia Power to intervene, and Appellants amended their petition to request an injunction prohibiting Georgia Power from including the nuclear tariff in their rate base pursuant to OCGA § 46-2-25 c.1. On August 21, 2009, Appellees filed a motion for summary judgment addressing standing issues as well as the merits of the petition. Appellants filed a response brief on standing issues on September 14, 2009, and a response to the State’s motion for summary judgment on September 23, 2009. Oral argument before the trial court was heard on September 23, 2009. The trial court granted the motion for summary judgment filed by Appellees, holding that Appellants lack standing to petition for judicial review and to challenge the constitutionality of OCGA § 46-2-25 c.1. The order also stated that the PSC’s denial of Appellants’ intervention application was reasonable. Finally, the order denied all remaining claims. Appellants appeal from that order.
