COLUMBIA — South Carolina lawmakers have differing opinions of whether the state can win a lawsuit if the Legislature repeals the 2007 law that allowed SCANA to build two abandoned nuclear reactors at V.C. Summer station.
Legislators are currently weighing an offer from Dominion Energy to buy Cayce-based SCANA, which was the primary owner of the nuclear project in Fairfield County.
That deal mandates that the Legislature keep parts of the Base Load Review Act, the law that allowed SCANA to charge customers before the nuclear plant was finished. It also would require roughly 700,000 electric customers to continue to pay for the two failed reactors over the next 20 years — something many lawmakers aren’t pleased with.
As state leaders consider their options, the threat of a legal challenge by SCANA looms large.
Dominion CEO Thomas Farrell told a special House committee Wednesday that if lawmakers repeal the unpopular Base Load Review Act, the Virginia-based company would walk away. And SCANA, he said, would inevitably sue the state in a case that would likely lead to the South Carolina Supreme Court.
During Wednesday’s hearing, House Minority Leader Todd Rutherford, D-Columbia, questioned whether the state could actually win that legal battle against the troubled utility company. He characterized other lawmakers’ promises to repeal the law as “hollow” threats.
“I do not believe that this body or any other body in the state Legislature has the ability to violate the constitution and retroactively repeal the Base Load Review Act,” said Rutherford, who is a defense attorney in Columbia. “I do believe that if we did it, we would get sued and that SCANA — or whatever entity bought SCANA — would win.”
Other lawmakers, however, have more confidence in their ability to win. They believe the only way to stop customers from paying any more for the V.C. Summer project is to repeal the Base Load Review Act. Currently, SCANA is using that law to charge its customers $37 million a month for the unfinished project.
“There are going to be legal challenges. They’re coming,” said Rep. Peter McCoy, R-Charleston. “There is 100 percent certainty in my mind that they are going to file lawsuits and they are going to challenge that, absolutely.”
House Speaker Jay Lucas, R-Hartsville, wasn’t immediately available to comment on whether he still plans to hold a vote on the bill to repeal the Base Load Review Act. But McCoy said he plans to push ahead.
“I have had no one come to me and say let’s hold off on repealing the Base Load Review Act,” said McCoy, who leads a special committee that investigated the nuclear cancellation.
Lawmakers in support of the rollback of the utility-friendly law point to a legal opinion from the Attorney General’s office that called several parts of the law “constitutionally suspect.” South Carolina Solicitor General Bob Cook argued in court two weeks ago that parts of the law violate electric customers constitutional rights.
Many of the lawmakers in support of the repeal of the Base Load Review Act continue to focus on SCANA’s actions over the course of the decade-long project. They cite the company’s failure to develop a legitimate construction schedule and to disclose a critical audit that highlighted significant problems with the nuclear project more than a year before it was cancelled.
The Post and Courier revealed last year that SCANA knew as early as 2012 that its contractor Westinghouse didn’t use professional engineers to vet and approve the construction blueprints for the yet-untested nuclear reactors.
Lawmakers, like Rep. Kirkman Finlay, R-Columbia, said the state needs to figure out if SCANA violated the law by not disclosing that type of information to lawmakers, the state’s utility regulators and the public. He said the Legislature shouldn’t be accepting a deal with Dominion until that happens.
The entire scenario has state lawmakers feeling the pressure. During the hearing Wednesday, Rep. Russell Ott, D-St. Matthews, recognized the difficult decisions lawmakers have to make.
“I am afraid of the consequences for this state and the people we represent if we get this wrong,” Ott said. “The bottom line is this body signed off on a bad deal many years ago under the Base Load Review Act.”