The STJ (Superior Court of Justice) revoked, this Wednesday (22), the injunction that required ANEEL (National Electric Energy Agency) to immediately compensate energy generating companies affected by generation cuts (constrained-off) carried out by the ONS (National Electric System Operator).
The injunction had been granted to the associations ABSOLAR (Brazilian Association of Photovoltaic Solar Energy) and ABEEólica (Brazilian Wind Energy Association).
A ANEEL appealed the decision of the TRF1 (Federal Regional Court of the 1st Region), arguing that the measure would represent a serious impact on public and economic order, and could generate costs exceeding R$1 billion for energy consumers.
For the president of the STJ, minister Herman Benjamin, the TRF1 did not fully consider the effects of its decision for other agents in the electricity sector.
Read also: ANEEL tries to reverse decision on constrained-off payment.
ABEEólica and ABSOLAR argue that Normative Resolution No. 1.030/2022, which regulates compensation for generation cuts, is in disagreement with Law No. 10.848/2004 and Decree No. 5.163/2004, resulting in losses for generators.
According to TRF1, the resolution would have exceeded its regulatory power by not ensuring full compensation for all generation cuts.
On the other hand, Minister Benjamin considered that complex issues in the electricity sector require detailed technical analysis.
He stressed that a literal interpretation of the rules is not sufficient to conclude that the resolution exceeded the limits of regulatory power, considering that laws are drawn up in an abstract manner and do not contemplate all technical specificities.
Read also TRF1 determines full compensation for renewable generators affected by constrained-off.
Defense of ANEEL
A ANEEL stated that the resolution was widely discussed with industry stakeholders, including associations. The agency highlighted that the generation cuts implemented by the ONS meet systemic technical criteria and are risks inherent to the generators' activity.
Furthermore, ANEEL warned that the questioned court decisions put the stability of sectoral rules at risk and may unduly benefit wind and solar generators, members of ABEEólica and ABSOLAR, to the detriment of electricity consumers.
As argued by the agency, urgent injunctions represent an “immediate and very serious risk of harm to public order and the economy”.
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An answer
ANEEL, unfortunately it is in the hands of the concessionaires, it is subject to political lobbying, unfortunately we who are in the Solar sector are at the mercy, without support from the government and regulatory bodies.