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.l), 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.l), 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.l), 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.l), 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.l). 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.l). 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.
1. Appellants contend that the trial court erred in granting the motion for summary judgment filed by Appellees without holding an oral hearing despite a timely request. Uniform Superior Court Rule 6.3 provides for oral argument on a motion for summary judgment if either party files a written, timely request. Our appellate courts have consistently held that once a
However, oral argument was heard by the trial court in this case on September 23, 2009. The motion for summary judgment was filed by Appellees on August 21, 2009, which was more than 30 days prior to the date of the oral hearing as required by OCGA § 9-11-56 (c). The trial court, pursuant to its authority to “order a hearing on its own motion[,]”
Kelley v. First Franklin Financial Corp.,
2. Appellants contend that the trial court erred in concluding that they lacked standing to seek judicial review of the PSC’s certification order. OCGA § 50-13-19 (a) sets out two requirements before a person can seek judicial review of an agency action: a person must have “exhausted all administrative remedies available within the agency and [must be] aggrieved by a final decision in a contested case. ...” Appellants have shown that they are aggrieved by the PSC’s certification order because they are Georgia Power ratepayers and an increase in one’s utility rates has previously been held to provide a person with the requisite aggrieved status.
Georgia Power Co. v. Campaign for a Prosperous Georgia,
This Court has consistently held that “ ‘[a]s long as there is an effective and available administrative remedy, a party is required to pursue that remedy before seeking equitable relief in superior court.’
[Cit.]”
Diverse Power v. Jackson,
We note that we do not anticipate that the holding we reach today will result in a flood of appeals of PSC rate decisions, since OCGA § 50-13-19 (a) limits the right to petition for review to persons “who have exhausted all administrative remedies available within the agency” in “contested cases,” OCGA § 50-13-19 (a), and since the PSC has the authority to limit the number of intervenors before it and place conditions on the participation of those to whom it does grant the right to intervene. OCGA § 46-2-59 (c), (e), (f). Moreover, when persons who have been permitted to intervene, and who have established standing to seek judicial review, take an appeal to superior court, the review of the PSC decision is limited to the record. . . . [Cit.]
Georgia Power Co. v. Campaign for a Prosperous Georgia, supra. Therefore, in order to exhaust administrative remedies before the PSC, a person must file a timely application for leave to intervene and participate in the certification proceedings. Since Appellants did not file a timely application to intervene, they have not satisfied the first requirement of OCGA § 50-13-19 (a). Therefore, the trial court properly concluded that Appellants lack standing to seek judicial review of the certification order.
3. Appellants also contend that the trial court erred by ruling on their appeal of the PSC’s order denying their application for leave to intervene in the certification proceedings without holding a hearing. OCGA § 50-13-19 (g) provides that a “court, upon request, shall hear oral argument and receive written briefs.” Appellants correctly note that this provision requires a trial court to hold a hearing on the denial of an application to intervene in an administrative proceeding if requested by a party. Nevertheless, Appellants were afforded such an oral hearing on September 23, 2009. A review of the transcript of this hearing establishes that Appellants were able to argue, and did in fact argue, why their application to intervene in the certification proceedings should not have been denied as untimely by the PSC. Appellants had an opportunity to argue the merits of this issue in front of the trial court, and, therefore, the trial court satisfied its obligation under OCGA § 50-13-19 (g).
4. Appellants contend that the trial court erred in denying permanent injunctive relief against Georgia Power in its order granting summary judgment to Appellees because the motion was not filed by Georgia Power. In its order, however, the trial court not only granted the summary judgment motion filed by Appellees but also entered judgment in favor of all defendants on all counts of Appellants’ petition, including the claim for injunctive relief against Georgia Power. Furthermore, in
Georgia Public Svc. Comm. v. Southern Bell,
5. Appellants’ final enumerations of error all challenge the constitutionality of OCGA § 46-2-25 (c.l). However, the trial court declined to reach the merits of the constitutional challenges, but merely ruled that Appellants lacked standing to raise them. Since this Court “ ‘will not rule on a constitutional question unless it clearly appears in the record that the trial court distinctly ruled on the point,’ ” the constitutional challenges cannot be considered on appeal.
Marks v. State,
Furthermore, Appellants have neither enumerated as error the ruling of the trial court that they lack standing to raise a constitutional challenge to OCGA § 46-2-25 (c.l) nor provided any argument or citation of authority with respect to that ruling. Accordingly, it was not made an issue in this appeal, and therefore will not be considered.
Marks v. State,
supra at 75 (4);
Mundy v. State,
Judgment affirmed.