EN 
PT_BR 
A CELA (Clean Energy Latin America), a financial advisory and strategic consultancy company in renewable energies, published a study that maps solar and wind PPAs in the free market Brazilian.
Based on interviews and questionnaires completed by the largest renewable energy generation companies in the country, the survey provides insights into the evolution of the two sources in the segment.
In total, 91 PPAs (Power Purchase Agreement) – long-term energy purchase and sale agreement or contract – signed in the ACL (Free Contracting Environment) were analyzed, of which 57 are for solar energy projects and 34 for wind, totaling around 2.6 average GW contracted.
In terms of installed capacity of projects with contracted energy, the survey shows that Brazil has approximately 10.7 GW in solar energy projects (8.3 GW) and wind energy (2.5 GW).
In an interview with Solar Channel, Marília Rabassa, director of CELA, highlighted that the numbers presented in the research are promising and show a maturation of solar and wind energy in the free market. “The market has learned and gained experience in contacting the end customer and signing PPAs, which shows that solar and wind are gaining more expertise within the ACL”, he assessed.
According to her, although macroeconomic and supply chain conditions were more challenging last year, which led to an increase in the prices of signed PPAs, the volume of signed projects was still 37% greater than those mapped in 2020. “Despite the problems faced, the market is still growing, which shows the attractiveness of the ACL and how this has been the key for large generating companies to make their projects viable”, he highlighted.
Marília explains that the expected growth at the beginning of 2021 was greater than the 37% presented last year, but that, due to all the problems listed, the slowdown compared to the previous year is understandable. “We had identified a growth of 260% between 2019 and 2020. In other words, this year, even though there was a slowdown, we still had good growth, taking into account all the challenges”, he highlighted.
Marília also pointed out that the financial institutions that provide part of the capital for the projects are now more diversified and that the profile of offtakers of this energy last year was mostly from Industry and less from traders. “PPAs are increasingly being signed with end consumers, in this case, with electro-intensive consumers. This is, in fact, a trend that we had already identified last year, but which, in 2021, was consolidated”, he concluded.
One Response
The conflict between Minas Gerais State Law 23762/21 and Federal Law 14300/22, regarding mini energy generation through photovoltaic collection.
Let us present, with our highlights, without further ado, a specific point of collision between the two legal diplomas, in the following transcription, highlighting ab initio the incompetence of the states to legislate on energy, as provided for in art. 22, of the Fundamental Law of the Republic.
federal Constitution
Art. 22. The Union is exclusively responsible for legislating on:
IV – water, energy, IT, telecommunications and broadcasting;
Federal Law 14300/22
Art. 1 For the purposes and effects of this Law, the following definitions are adopted:
XIII – distributed minigeneration: renewable electrical energy generating plant or qualified cogeneration plant that is not classified as distributed microgeneration and that has an installed power, in alternating current, greater than 75 kW (seventy-five kilowatts), less than or equal to 5 MW ( five megawatts) for dispatchable sources and less than or equal to 3 MW (three megawatts) for non-dispatchable sources, according to * Aneel regulations, connected to the electricity distribution network through consumer unit installations; * Aneel Resolution 482/12
State Law 23762/21
Art. 1 The following art is added to Law No. 6,763, of December 26, 1975. 8º-E:
“Art. 8º-E. The Executive Branch is authorized, in the form, within the term and under the conditions set out in regulation, and as long as there is authorization in an agreement signed and ratified by the states and the Federal District, under the terms of Federal Complementary Law No. 24, of January 7, 1975 , reducing the relative tax burden to up to 0% (zero percent):
II – distributed minigeneration to an electrical energy generating plant with an installed power greater than 75kW (seventy-five kilowatts) and less than or equal to * 5MW (five megawatts), which carries out qualified cogeneration or uses renewable energy sources, connected to the distribution network through installations of consumer units.”. * 5MW (five megawatts – Aneel Resolution 482/12.
Without deepening the analysis regarding the reception of Complementary Law 24/75, when the Federal Constitution of 1988 was promulgated, clearly, THE COMPETENCE TO LEGISLATE ON ENERGY IS PRIVATE AND RESPONSIBLE TO THE UNION.
Of course, they will insist on accepting Complementary Law 24/75, which contravenes the Federative Principle and therefore the Principle of the Constitutional Distribution of Tax Competences. So say the experts on the subject or the STF, invested in the task of clarifying this type of question. From our point of view, the legislation outlined in the Minas Gerais state diploma was not received. Now, if the competence is exclusive, if there is a clear delimitation of competences in the constitutional text, the intended reception is therefore excluded. It means seeking a lot of support in the legal and logical void... In view of the above, there still remains the obstacle of the tax exemption limit, common to both diplomas, the state and the federal. With a rapidly expanding market around the world, nothing is more absurd than the over-mentioned limit of 5 MW (five megawatts). Ask Absolar and IBGE about the installed capacity of energy captured by photovoltaic panels! Seek information from research institutes – the exemption limit will appear as absurd (causing perplexity), as someone observing a tiny sidereal point in a newly discovered galaxy or some unknown micro organism, placed under the lenses of an ultramicroscope.
Naturally, such issues require the drafting of a Complementary Law, to regulate the matter, not an expired Agreement and Complementary Law. The requirement is constitutional. The intricacies are obvious and political, but it is clear that it is not up to the regulatory agency in question to LEGISLATE ON THE MATTER, replacing parliament. Infra-legal norm cannot – define, conceptualize, or draw outlines on topics reserved by the Fundamental Law of the Republic to the National Congress.
If the conflict between the aforementioned laws were not enough, art still prevails. 110 of the CTN, reproduced below, (highlights highlighted), when it addresses the pertinent scope of Civil Law.
Art. 110. Tax law cannot change the definition, content and scope of institutes, concepts and forms of private law, used, expressly or implicitly, by the Federal Constitution, the Constitutions of the States, or the Organic Laws of the Federal District or Municipalities, to define or limit tax powers.
And what would be the civil concept to define the energy received and transformed through the photovoltaic system? In what class of goods could it be classified?
Now, in this way, Aneel is absolutely constrained from exercising any regulatory aspect – when it intends to interfere in a place reserved for the Complementary Law of General Standards, the CTN, which is duly received by the Maximum Statute of the Republic, according to repeated decisions of the EG; STF.
Art. 146. The complementary law is responsible for:
I – deal with conflicts of jurisdiction, in tax matters, between the Union, the States, the Federal District and the Municipalities;
II – regulate constitutional limitations on the power to tax;
III – establish general rules on tax legislation, especially on:
a) definition of taxes and their types, as well as, in relation to the taxes detailed in this Constitution, the respective triggering events, calculation bases and taxpayers;
b) tax obligation, assessment, credit, prescription and expiry;
c) adequate tax treatment of the cooperative act carried out by cooperative societies.
So, from reading the constitutional text, it is easy to extract that the norm indicated by the original constituent legislator is a Complementary Law, to be drawn up by the National Congress, not by Aneel, through an infra-legal normative diploma. A standard lower in hierarchy than the CTN, cannot, as required by the Constitution of the Republic, regulate matters reserved for the Complementary Law. The constitutional command is quite express and clear.
We have an obligation – and the market will press vehemently – to choose a future with great potential for our country, a source of renewable, abundant, clean energy, capable of placing Brazil in the spotlight of international development entities, to attract resources. necessary for the development and massification of technologies, good, beneficial, structuring, driving, increasingly accessible, betting again on the goodwill and strategic vision of the political body.
As for the aforementioned Complementary Law No. 24/75, here is the search result in the reference legislative repository https://legislacao.presidencia.gov.br/atos/.
COMPLEMENTARY LAW No. 24 OF JANUARY 7, 1975
Signature date: January 7, 1975
Summary:
PROVIDES FOR AGREEMENTS FOR THE GRANT OF EXEMPTIONS FROM TAX ON OPERATIONS RELATING TO THE MOVEMENT OF GOODS AND MAKES OTHER PROVISIONS.
Status: There is no express revocation
Head of Government: ERNESTO GEISEL
Origin: Executive
Publication Date: January 9, 1975
Source: DO OF 01/09/1975, P. 345
Link: Full text
Referendum: MINISTRY OF FINANCE – MF; PLANNING SECRETARIAT OF THE PRESIDENCY OF THE REPUBLIC – SEPLAN
The expression “there is no express revocation” is quite undefined. Times of yesteryear, ancien régime, a period in which the current ICMS was called ICM and the Union legislated without hindrance, or supported by a constitutional basis – at the time – on matters currently the responsibility of other federative entities.
Art. 19. The Union, the States, the Federal District and the Municipalities are prohibited from:
I – establish religious cults or churches, subsidize them, hinder their operation or maintain relationships of dependence or alliance with them or their representatives, except, in accordance with the law, for collaboration in the public interest;
II – refuse to authenticate public documents;
III – create distinctions between Brazilians or preferences between them.
A simple reading of article 19, II, of the Lex Maxima of the Republic, mentioned above, makes the expression even more dubious, as it is a public document referring to a legal diploma from the past, saying: “Situation: There is no repeal expresses “. There is tremendous, enormous doubt about the constitutionality of Complementary Law No. 24/75. Here we finish.
Bruno Rezende Palmieri, Lawyer.