Last week, the ANEEL (National Electric Energy Agency) opened the Public Consultation No. 13/2024 to discuss the application of the discount on TUST (Transmission System Usage Tariffs) and TUSD (Distribution System Usage Tariff) for solar, wind and biomass thermal plants with up to 300 MW of power, in compliance with Rulings No. 2.353/2023 and No. 129/2024 of the TCU (Federal Audit Court).
The court asked the ANEEL that suspend the issuance of new grants with discount on TUST/TUSD, claiming that projects above 300 MW were being divided with the aim of obtaining the benefit.
What generated fear in the market was legal uncertainty that the measure could bring to the sector, as, in these first two rulings, the TCU implied that even grants already issued could be reviewed. However, on May 15th, the Ruling No. 955/24 made it clear that the court's determination would not affect grants already granted.
“Regarding the past, I would say to you that we were quite satisfied, although we could never have imagined that the past would be under scrutiny by the TCU and the ANEEL. But there came a time when we doubted the legal and regulatory security in relation to the grants already issued”, said Carlos Dornellas, Technical and Regulatory Director of ABSOLAR (Brazilian Solar Energy Association).
“We did intense and very consistent work with the TCU and the ANEEL. Fortunately, the vote of the board of directors ANEEL confirmed that there is no need to talk about the past, because the past is correct”, concluded Dornellas.
ABEEólica (Brazilian Wind Energy Association) said that the entity also had a huge job of convincing the TCU and the ANEEL, in order to show that changes that would change the past would cause enormous damage to the electricity sector as a whole.
In addition to increasing legal uncertainty, this would scare away new investments. If there was no clarification from the TCU, said the association, the risk that agents would run would be incalculable. This is because hundreds of thousands of operations and businesses carried out by renewable plants (wind and solar) would be compromised.
“From the beginning, ABEEólica has argued that legal security and the preservation of business must dominate the agenda during the discussion of this matter. The fractionation of projects has been a possibility since the construction of the first renewable complexes (before 2010) and has always received approval from the regulatory agency, through a delegation granted by law to grant new plants in the electricity sector”, he said.
“We understand that, upon requesting the grant, the company obtains rights to explore potential for energy generation, but also obtains duties towards the electrical system. For this reason, our position is that every plant that has already had a grant requested should be outside the TCU's discussion. In our understanding, only in this way will we be able to broadly preserve the security of investments made in Brazil”, added ABEEólica.
In CP18, the ANEEL established that enterprises whose application for granting an incentivized source has been submitted by March 2, 2022 and is pending instruction must forward the TDPA (Authorization Continuation Declaration Term) or the TDSA (Authorization Suspension Declaration Term) by June 3, 2024. Those who do not send any of the terms within the stipulated period will have their grant requests rejected.
Agents who sign the TDPA will assume the risk of continuing to implement projects without knowing what the new rules for wire discounts will be. ABSOLAR told the Canal Solar that is in contact with the ANEEL to extend this deadline, considered too short for agents to make such an important decision.
“For agents to make this decision, they need to take into account several factors, mainly how discounts will be maintained from now on,” said Dornellas. “We want to understand what the future scenario will look like, so that agents are comfortable signing one term or another.”
Another point is how the ANEEL will regulate the definition of complex. One of the proposals is that a generation complex be established as long as there are two or more installations, with the same electrical energy generation technology, that have the same direct corporate control, even if they have different measurement systems, and that access the transmission and/or distribution through the same connection infrastructure. Furthermore, the measurement of the injected power will be done by adding the injected power of the plants whose authorization acts have been classified as “generation complexes”.
ABEEólica does not rule out a possible judicialization of this issue. “When they request their concessions, companies have already spent enormous amounts of resources carrying out the viability analysis of that plant, as well as signing contracts with landowners, surveying the land, anemometric measurements, etc. Companies that feel seriously harmed will certainly take legal action.”
CP 13/2024 will receive contributions until July 5th. Click here to access the complete documentation.
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