Wednesday, April 28, 2010

S.C Supreme Court Affirms SCPSC Approval of Nuclear Generating Facility

On April 26, 2010, the South Carolina Supreme Court affirmed the decision of the South Carolina Public Service Commission (Commission) approving SCE&G’s application to construct and operate a two-unit nuclear facility in Jenkinsville, South Carolina and to revise its rates to reflect the cost of capital applied to the project. Friends of the Earth v. The Public Service Commission of South Carolina, et al., Op. No. 26811 (S.C. April 26, 2010).

Friends of the Earth, a not-for-profit group, opposed the new facility before the Commission. On appeal, Friends of the Earth urged the Court to apply a new standard of “heightened scrutiny” when reviewing this decision of the Commission under the recently enacted Base Load Review Act. The Court found no basis in law for this request, stating that varying degrees of scrutiny are ordinarily limited to those cases where a state statute’s constitutionality is being challenged under the Equal Protection Clause. Accordingly, the Court applied the standard of review traditionally applicable to decisions of the Commission.

Friends of the Earth next tried to establish flaws in SCE&G’s application by stating that SCE&G failed to update its intergrated resource plan or complete a review of potential energy efficiency and demand side management load reductions. The Commission found that SCE&G adequately addressed both of these concerns in its forecasts. Applying its usual, deferential standard of review, the Court agreed with the Commission.

Finally, Friends of the Earth tried to prove that SCE&G failed to establish the need for the facility given SCE&G’s size relative to other utilities, the steep economic downturn, and the fact that SCE&G would be the first utility to build this type of facility. The Commission’s decision evaluated the factors under the relevant statute, S.C. Code Ann. Section 58-33-270. The Court pointed out that the Commission is the “expert” on this subject matter, and it declined to substitute its judgment for the Commission's. Accordingly, the Court affirmed the Commission’s decision allowing the application for the facility to move forward.

For a full text of the decision, click here.