dissenting:
I respectfully dissent.
I adhere to my views expressed in my dissent concurred by *440Chief Justice Lewis, now retired, in Johnson v. Piedmont Municipal Power Agency, 277 S. C. 345, 287 S. E. (2d) 476 (1982). Reference is made to the report of that case for a more full understanding of the constitutionality of the Joint Municipal Electric Power and Energy Act of 1978, South Carolina Code Ann. §§ 6-23-10 to -330 (1983) (the Act), and of the new issues now presented to the Court with which we must deal.
The Act requires that a contract such as that proposed between PMPA and Duke be approved by the Public Service Commission of South Carolina. The basic issue with which the Commission was confronted was: Is the proposed sale and purchase contract mutually beneficial to PMPA and Duke. The Commission answered: Yes. The approval was appealed to the Circuit Court which affirmed the Commission’s action. The same issue is now submitted to this Court as a result of the appeal of Palmetto Alliance, Inc., a consumer oriented public organization which has intervened.
I have no difficulty in concurring with that part of the Commission’s finding that the contract is beneficial to Duke. Patent is the fact that the entire transaction has been orchestrated and finely tuned by the Duke Power Company. The agreed statement of fact in Johnson, in which Duke was a party, recites: “... That the sale of the Catawba Plant was considered advantageous by Duke since it would reduce the Company’s need to raise outside capital to finish its construction program in the future.” It absolves Duke of all liability and assures it of a cost plus construction and operational profit. It cannot lose. On the other hand, in my view, the ten towns and the ratepayers cannot win. The remote possibility of winning is certainly not worth the gamble involved.
The circuit judge’s order and the majority opinion, which in large measure quotes that order, disposes of the case by holding that the Commission had before it substantial evidence which is all that is required under the Administrative Procedures Act, South Carolina Code Ann. § l-23-380(g) (1983).
Section 6-23-60 of the Act sets forth six factors which should be considered in determining whether the contract is beneficial to both PMPA and Duke. I think there is merit in the second question raised by Palmetto Alliance, Inc.:
*441Did the trial judge err in affirming Commission Orders 82-815 and 83-475 in that they failed to make concise and explicit findings of fact on the economies and efficiencies to be achieved in constructing on a large scale, facilities for generating electric power and on the reliability, availability and costs of existing or alternative sources of power supply?
It is common knowledge that commercial nuclear power, once hailed as the cheapest, cleanest, and most efficient escape from the rising spiral.of energy costs, has floundered on the rocks of a more restrictive regulatory climate, environmental and safety concerns, diminished growth in consumer demand, and rapidly escalating capital cost. Equally well known is the fact that almost one hundred nuclear plants have been commenced and abandoned after billions of dollars were invested. In each instance, the builders have concluded that money could be saved by abandoning the projects as contrasted with attempting to complete them. Duke completely understands, if PMPA does not, the advantage of abandoning such projects. In November 1982, Duke announced cancellation of Cherokee Units No. 2 and No. 3; in April 1983, it discontinued the construction of Cherokee Unit No. 1. Obviously, so long as PMPA can sell bonds to pay Duke, Catawba No. 2 will not be cancelled. In these instances, the tremendous loss must be absorbed by either the stockholders or consumers. If, in the last analysis, this project should be abandoned, the loss must be absorbed by the ratepayers of Rock Hill, Gaffney, Easley, Greer, Westminster, Abbeville, Clinton, Laurens, Newberry, and Union. This is true because PMPA has no assets other than its ability to “tax” the consumers in these towns. There are no stockholders in the usual sense of the word and Duke, under this contract, is absolved of any liability. Presumably, if the contract is cancelled, it could collect its fees and PMPA would assess them against the consumers of the towns.
Also a matter of common knowledge is the fact that no new nuclear plants have been commenced in several years and none are now contemplated. It is difficult to understand how the Commission could find that the type of project no power company would commence today could be profitably bought. *442This is particularly true when patently no one can estimate with reasonable accuracy the total cost of the project and the price which PMPA will have to pay and pass on to the consumers. Truly PMPA is buying a pig in a poke. When this case was before us approximately two years ago, Beck (the consultant), Duke, and PMPA represented to the Court that there was involved between $675,000,000 and 767,000,000 in bond issues. In my dissenting opinion, I commented: “There is no assurance that the cost will be limited, and in this day of cost overrun and inflation, the cost might easily be twice as much.” It now develops that the best estimate of Beck, Duke, and PMPA is some $1,200,000,000 — which is almost twice as much. While total cost is unfathomable, it is certain that PMPA and its North Carolina counterpart, which buys a seventy-five percent interest in the project, must continue to borrow money by way of bond issues until sufficient funds are borrowed to pay the total cost. Assuming that bonds will sell, it is inescapable that this high risk project would involve high interest bonds. This factor alone makes the ultimate cost (principal and interest) completely unpredictable.
It should be pointed out that the testimony of Beck, the consulting engineer, was based, not on facts known to him, but on figures and information supplied by Duke. Beck and Associates are the same engineers who provided services to Washington Public Supply Systems which has resulted in the greatest bond default catastrophe in the history of the United States. The scheme of operation there and here is greatly similar.
It can be argued with some force that, if this is a bad contract, it is of no concern to the Court so long as it is legal. Even accepting this premise, the case should at least be remanded to the Commission for failure to make concise and explicit findings of fact on the economy and efficiencies to be achieved. The Commission appears to proceed on the theory that these towns have no better alternative than to agree to the Duke contract. The Commission does little more than recite that it has given consideration to the six factors enumerated in the Act. Nothing in the Act suggests that the Commission should limit its vision to nuclear plants, and nothing in the record indicates that nuclear is the most economical and efficient way to serve the power needs of PMPA’s *443members. The bulk of the applicant’s case is bottomed on the Beck study which is basically a comparison between two alternatives: (1) remaining wholesale customers of Duke; and (2) entering into the various agreements and contracts to purchase one-fourth of the Catawba Unit No. 2. The analysis conducted by Beck, and accepted by the Commission, simply (1) asserts that Catawba No. 2 and the other plants tied with it under the project agreement are the answer to the power needs of the PMPA members; and (2) focuses on why .ownership is better than being a wholesale customer.
When and if bonds are issued by PMPA, purchasers of the bonds may acquire certain constitutional protections growing out of the contract. At that point, PMPA and the ten towns and, in turn, the consumers may be locked into problems from which they cannot extricate themselves. The contract obligates PMPA, the towns, and the consumers to pay for the project even if abandoned and even if no benefits are ever received. Before PMPA should be permitted to impose an obligation upon the consumers, all other alternatives should be pursued and excluded. I submit that it is no longer feasible to commence a nuclear generating plant, it is no longer feasible to buy a twenty-five percent interest in one.
In oral argument, counsel takes position that all of the legal issues, including those enumerated in my dissenting opinion in Johnson, have been settled. I disagree.