On May 15, 2020, the Ministry of Energy (“SENER”) published in the evening edition of the Official Gazette of the Federation the “Reliability, Safety, Continuity and Quality Policy for the National Electric System” (“Reliability Policy”), which establishes the guidelines that the Members of the Electric Industry, the Energy Regulatory Commission (“CRE”), the governments of the federal entities and their municipalities, as well as any authority of the federal public administration must observe.
• SENER may define strategic power plant projects whose development and implementation are necessary to comply with the National Energy Policy. Said projects will enjoy preferential priority for their interconnection to the National Transmission Networks or General Distribution Networks. • Generation permits (amended and new), as well as interconnection agreements (to be executed or subject to amendment by extension), must contemplate the figure of “early termination” in the event that the terms and conditions established therein are not met. • The figure of the “interconnection viability opinion” is created, which will be issued by the National Energy Control Center (“CENACE”) and may be considered by the CRE for the granting of generation permits, as well as by CENACE to reject applications for interconnection studies. • It establishes that, in those cases where a Power Plant with Intermittent Clean Energy requests an interconnection study at a point, zone, region or system in which there are already congested transmission and transformation elements, CENACE, based on criteria of sufficiency, dispatch security and economic efficiency, may reject said applications. • Wind and photovoltaic plants interconnected to the SEN are required to permanently guarantee voltage control. • The incorporation of Distributed Generation with Intermittent Clean Energy must be through smart inverters with the capacity to regulate frequency and voltage, and with the equipment necessary for monitoring, communication and control from the distribution control centers of the Federal Electricity Commission and CENACE. There are arguments that allow the conclusion that the Reliability Policy was issued in contravention of the applicable regulatory framework, among which the following stand out: > It contravenes the provisions of article 14, sections IV, XVI and XVII, of the Energy Transition Law, since the Reliability Policy seeks to limit, under the concept of Power Plants with Intermittent Clean Energy, the development of wind and photovoltaic plants throughout the country. > It contravenes article 4 of the Electric Industry Law, since the modification of the conditions under which plants may be interconnected to the SEN has implications contrary to competition and free market access in the generation market. > It contravenes article 33 of the LIE by limiting the interconnection of power plants through the “viability opinion” and by establishing preference for the interconnection of projects selected by SENER. > It contravenes Article 66 of the General Law on Regulatory Improvement, since a regulatory impact analysis was not previously carried out. > As a result of the foregoing, the constitutional principles of equality and non-discrimination, freedom of commerce, due grounds and motivation, legal certainty and free competition are violated. In view of the foregoing, depending on the particular case and in order to suspend or restrict the effects of the Reliability Policy, or to seek compensation for the damages caused, the admissibility of various means of challenge before the Federal Court of Administrative Justice, district courts, investment arbitration tribunals and the Federal Economic Competition Commission could be analyzed. For additional information, contact our experts: Adrián Magallanes, Partner: +52 (55) 5258 1077 | amagallanes@vwys.com.mx Edmond Grieger, Partner: +52 (55) 5258 1048 | egrieger@vwys.com.mx Rodrigo Barradas, Associate: +52 (55) 5258-1077 | rbarradas@vwys.com.mx Ariel Garfio, Associate: +52 (55) 5258 1048 | agarfio@vwys.com.mx Roberto Flores, Associate: +52 (55) 5258 1048 | rflores@vwys.com.mx
