Pressure is growing on Aneel (National Electric Energy Agency) to suspend the authorization given to a company of the J&F group (controller of the global meat company JBS) to supply energy through an existing plant instead of others that are behind schedule.
After questioning the TCU (Union Court of Auditors), sent to Aneel on Thursday (26), different consumer protection entities in the energy area filed appeals with the agency requesting the immediate suspension of the operation.
By rule, the thermal plants of Âmbar Energia (from J&F) should have come into operation on May 1st. The company should pay a fine while it does not supply energy as planned and have the contract canceled if it fails to start the new thermal plants on August 1st.
A provisional decision by Aneel, however, made an exception that has been provoking reactions.
According to Aneel’s rules, a request for suspensive effect, in the case of those presented by the entities, opens space even for a monocratic decision by the agency’s director-general. There is an expectation that the interim at the post, director Camila Figueiredo Bomfim, will evaluate the use of the device.
According to the auction rules, a PCS (Simplified Competitive Procedure) carried out in October last year, only new projects could be authorized to participate, and the energy would have to be delivered by the auction winners, as highlighted in clause 4.4 of the contract.
“The energy defined in the contract cannot be delivered by another plant of the seller, by another agent of the CCEE [Câmara de Comercialização de Energia Elétrica]nor by the set of agents due to the optimized operation of the SIN [Sistema Interligado Nacional]”, highlights the text.
The director of Aneel and rapporteur of this case, Efrain Pereira da Cruz, defended a precautionary measure that suspended the monthly fine of R$ 209 million foreseen for the delay of the four new thermal plants of Âmbar and released the operation of the thermal plant in Cuiabá, with the right to receive revenue R$ 1,761.30 per MWh, to be debited from the electricity bill.
Cruz is saying goodbye to the agency. He tried to be nominated for the post of director general, as he could not be reappointed to the same post. He has been working behind the scenes so that the precautionary measure is not overturned, as this is a trend among the agency’s technicians.
In January, Âmbar placed a first order to supply energy from the Mário Covas thermal plant while the new projects were not ready. On that occasion, he received a negative from the technical area.
The company resubmitted the request, requesting the injunction in April, and got the go-ahead at a board meeting on May 17 — before technicians and the prosecution reassessed the proposal, which was under wraps.
Two other directors present at the meeting that dealt with the precautionary measure followed the rapporteur’s vote. Hélvio Neves Guerra, who chaired the work at the meeting, was reappointed and remains at the agency. Sandoval de Araújo Feitosa Neto will assume the main position (general director of the agency) in August.
The entities focused their efforts on technical arguments in the request for suspension of the precautionary measure.
Abrace (Association of Large Industrial Consumers of Energy and Free Consumers), which mainly represents companies that depend on electricity on a large scale, made a detailed resource in which it highlights the damage to the consumer.
“Consumers’ interest is not to pay for this expensive, unnecessary energy, which, if the requests of the Interested Parties are accepted, will infringe several rules”, states the text. The entity cites that the precautionary measure opposes the Provisional Measure that dealt with the water crisis, a resolution by the Chamber of Exceptional Rules for Hydroenergetic Management, an ordinance of the Ministry of Mines and Energy on the subject, the auction notice and the contract signed for the company.
“Abrace has great confidence in Aneel’s decision-making process and in the solidity of the arguments brought to the Agency”, Paulo Pedrosa, president of the entity, told the report. “With the involvement of the superintendencies and the attorney’s office and with the debate on the merits between the directors, the reversal of the precautionary decision that penalizes consumers is natural.”
Anace (National Association of Energy Consumers), which also asked for the suspension, presented direct questions to Efrain da Cruz’s arguments. He highlighted that the rapporteur’s vote “is fragile in terms of technical aspects and unacceptable from a legal point of view”. The entity does not rule out taking the case to court.
“What director Efrain is doing with the decision is breaking contracts. This sets a very dangerous precedent”, says Anace’s director of Technical and Regulatory Affairs, Mariana Amim, in a note on the matter. “When the contract is unfavorable to the entrepreneur, it can be changed, but when it is unfavorable to the consumer, it has to be fulfilled? I hope that common sense makes Aneel review the decision.”
The Polis Institute, a civil society organization that defends consumer rights, also asked for the suspension of the precautionary measure in an appeal prepared by the law firm Carvalho Siqueira, stating that it considers the decision to be financial irrationality.
The lawyers point out that the PCS plants were designed during the time of drought to operate as anti-blackout options and to preserve reservoirs. Now, however, the hydroelectric lakes are at 70% capacity. On the spot market, energy is sold at 55 MWh.
“In this context, Aneel’s decision becomes even more absurd”, says in a note the project coordinator of the Polis Institute, Clauber Leite.
OTHER SIDE
Sought, Aneel did not manifest itself until the publication of this text.
In a note sent to the report, Âmbar does not comment that the projects did not meet the May 1 deadline, but reinforces that it will be able to meet the deadline of 90 days.
“The appeals before Aneel start from the false premise that the four plants taken over by Âmbar would not enter into commercial operation within the period of 90 days provided for in the contract”, says the text.
Âmbar also says that it presented to Aneel two alternatives for fulfilling the contracts: generation from the four plants or generation from UTE Mário Covas, with a reduction in fixed revenue and unit variable cost, totaling an estimated benefit of R$ 650 million in favor of consumers.
The company also highlights that the request is supported by precedents from the Federal Court of Auditors and the Superior Court of Justice.
It also says that if Aneel does not confirm the acceptance of the Mário Covas generation, the contracts will be fulfilled with the generation of the four plants, which are on the verge of starting commercial operation, without the savings proposed by Âmbar.
“There is, therefore, no hypothesis in which the contract is not fulfilled. Behind this fanciful narrative is a mere attempt to break contracts irregularly”, states the text.
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