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The distributed generation regime in Brazil:
The electricity compensation system in Federal Law
No. 14,300 of January 2022
O regime de geração distribuída no Brasil:
O sistema de compensação de energia elétrica na lei federal
nº 14.300, de janeiro de 2022
El Régimen de generación distribuida en Brasil:
El sistema de compensación de energía eléctrica en la ley
federal n° 14.300, de enero de 2022
Vitor Rhein Schirato
Sao Paulo University (correspondent author)
City:
Sao Paulo
Country:
Brazil
Felipe de Almeida Ribeiro Campos
Independent legal researcher
City:
Sao Paulo
Country:
Brazil
Original Article (Legal analysis)
RFJ, No. 13, 2023, pp. 257 - 288, ISSN 2588-0837
ABSTRACT:
Federal Law No. 14,300, of January 6, 2022,
introduced substantial changes to the Energy Compensation
System (SCEE) applicable to consumers with small-sized
distributed generation in Brazil until then governed by
Normative Resolution No. 482, of April 17, 2022, of the National
Electric Energy Agency (ANEEL). The SCEE enables consumer
units participating in any of the compensation modalities to
reduce the amount of energy consumed with energy injected
into the distribution network. It was reformed under the new
DOI 10.26807/rfj.vi.463
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Law to update the requirements applicable to consumers to
frame the categories of micro and mini distributed generators
and of potential beneficiaries; the modalities of energy surplus
compensation, the legal framework for energy credits, and
the methodology for compensation for electricity consumed,
with the creation of transition regimes for the incidence of
new tariff components on compensated energy and changes in
the application of the availability tariff on the consumer unit
that is part of the SCEE and of the contracted demand on the
consumer unit with micro or mini distributed generation.
KEYWORDS:
Distributed generation, electric power,
compensation system.
RESUMO:
A Lei Federal nº 14.300, de 6 de janeiro de 2022,
introduziu alterações substanciais no Sistema de Compensação
de Energia Elétrica (SCEE) aplicável aos consumidores com
pequena geração distribuída no Brasil, até então regido pela
Resolução Normativa nº 482, de 17 de abril de 2022, da Agência
Nacional de Energia Elétrica. O SCEE, que possibilita às unidades
consumidoras participantes de alguma das modalidades de
compensação o abatimento na fatura do valor da energia
consumida com a energia injetada na rede distribuição, teve
novidades com a Nova Lei relativas ao enquadramento de
consumidor como micro e minigerador distribuído e como
beneficiário, às modalidades de compensação do excedente
de energia elétrica, ao regime jurídico dos créditos de
energia elétrica, e à metodologia de compensação da energia
elétrica consumida, com a criação de regimes de transição
para a incidência de novas componentes tarifárias sobre a
energia compensada e mudanças na aplicação do custo de
disponibilidade sobre a unidade consumidora integrante do
SCEE e da demanda contratada sobre a unidade consumidora
com micro ou minigeração distribuída.
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PALAVRAS-CHAVE:
geração distribuída, sistema de
compensação, energia elétrica.
RESUMEN:
La Ley Federal N° 14.300, de 6 de enero de
2022, introdujo modificaciones sustanciales al Sistema de
Compensación de Energía (SCEE) aplicable a los consumidores
con pequeña generación distribuida en Brasil hasta entonces
regido por la Resolución Normativa N° 482, de 17 de abril de
2022, de la Agencia Nacional de Energía Eléctrica (ANEEL).
El SCEE permite a las unidades consumidoras participantes
en cualquiera de las modalidades de compensación reducir la
cantidad de energía consumida con la energía inyectada a la red
de distribución. Se reformó bajo la nueva Ley para actualizar
los requisitos aplicables a los consumidores para enmarcar
las categorías de micro y mini generadores distribuidos y de
potenciales beneficiarios; las modalidades de compensación
de excedentes de energía, el marco legal de los créditos de
energía y la metodología de compensación de la energía
eléctrica consumida, con la creación de regímenes transitorios
para la incidencia de nuevos componentes tarifarios sobre la
energía compensada y cambios en la aplicación de la tarifa de
disponibilidad sobre la unidad consumidora que forma parte del
SCEE y de la demanda contratada sobre la unidad consumidora
con micro o mini generación distribuida.
PALABRAS CLAVE:
generación distribuida, sistema de
compensación, energía eléctrica.
JEL CODE:
O13, P28.
INTRODUCTION
On April 17, 2012, the Electric Energy Compensation
System - SCEE was introduced in Brazil, by force of Normative
Resolution No. 482 of the National Electric Energy Agency -
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ANEEL, which for the first time enabled consumers of electricity
from the captive market to compensate in the electricity bill
for the energy consumed from the distribution network with
energy produced locally or remotely, in small generating
plants, connected to consumer units of the same ownership or
members of a joint venture, such as shared generation or the
venture with multiple consumer units – EMUC.
The captive or
regulated market is the one in which consumers purchase the
energy consumed through the concessionaire or permissionaire
of electricity distribution (the “distributor”) under regulated
conditions. The distributor, in turn, should serve the entire
regulated market assigned to it under the terms of its respective
instrument granting the public distribution service. Then, the
provisions of article 2, caput, of Federal Law no. 10,848, of
March 15, 2004: Art. 2 The concessionaires, permissionaires,
and authorized public service of electric power distribution
of the National Interconnected System - SIN must guarantee
the service to the totality of its market, through regulated
contracting, using bidding, according to the regulation, which,
observing the guidelines established in the paragraphs of this
article, will dispose on: (...)
REN 482 thus introduced the two categories of
distributed mini generators and microgenerators, according to
the installed power of the generating plant connected to the
holder’s consumer unit, through which regulated consumers
were given the possibility of joining the SCEE (
Ioan and Dorin,
2014). Originally, the distributed microgeneration corresponded
to the generating plant with an installed capacity lower or
equal to 100 kW (one hundred kilowatts), and the distributed
mini generation corresponded to the generating plant with an
installed capacity higher than 100 kW (one hundred kilowatts)
and lower or equal to 1 MW (one megawatt). However, these
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limits had already been changed by later resolutions of ANEEL.
Distributed microgeneration had its maximum limit of installed
power reduced to 75 kW (seventy-five kilowatts) by ANEEL
Normative Resolution No. 687 of November 24, 2015, while
distributed mini generation had its maximum limit extended to
5 MW (five megawatts) by ANEEL Normative Resolution No.
786 of October 17, 2017.
Until the publication of REN 482, the electricity sector
in Brazil presented a strong dichotomy between generation and
consumption. Generators corresponded to concessionaires,
permissionaires, and those authorized to generate electricity
through formal concession instruments delegated by ANEEL,
with few exceptions.
The figure of the Auto producer of
Electric Energy is the one that came closest to overcoming the
generator-consumer dichotomy since its production of energy
is intended primarily for the exclusive use of the producer.
However, it still requires a concession instrument granted by
ANEEL in the form of authorization. Article 2, II of Federal
Decree No. 2,003 of September 10, 1996:
Art. 2 For the provisions of this Decree, it is considered:
(...) II - Auto-producer of Electric Power, the individual
or legal entity or companies gathered in a consortium
that receives a concession or authorization to produce
electric power for their exclusive use.
The concept of distributed generation itself did not
mean, for the regulatory order then in effect, a legal regime
specific to the generation that was completely different from the
others. Rather, distributed generation was a technical concept:
the production of electricity from facilities directly connected
to the distribution system.
Furthermore, the provisions of
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article 14, caput, of the Federal Decree nº 5.163, of July 30th,
2004:
Art. 14 For this Decree, distributed generation shall mean
the production of electric power originating from undertakings
of concessionaires, permissionaire, or authorized agents,
including those dealt with in Art. 8 of Law No. 9,074, of 1995,
directly connected to the buyer’s electrical distribution system,
except for that which originates from undertakings.
In these terms the provisions of the original wording of
article 3 and its paragraphs, of REN 482.
Thus, the same enabling
legal titles applicable to traditional centralized generation,
connected to large consumer centers through transmission
grids, were applied to distributed generation.
The generator-consumer dichotomy was finally
mitigated with the introduction of mini generation and
distributed microgeneration by REN 482. In addition to the main
technical concept of the distributed generation then in effect,
mini generation and distributed microgeneration (we will refer
to them jointly as small, distributed generation) effectively
introduced a special legal regime for the consumption and
generation of electricity in Brazil.
The REN 482 introduced a special consumption regime
because it allowed the regulated consumer class of small
generators distributed exclusively through the SECS to deduct
from the amount charged for the electricity consumed in their
bills the corresponding amount of electricity generated by their
small generating plants (
Sosnina, 2019).
Complementarily, the REN 482 introduced a new legal
regime for the generation of electricity in Brazil, since small,
distributed generators were authorized to generate electricity
without the need for an enabling legal title (concession,
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permission, or authorization), as long as they applied to the
distributor for the connection of the generating plant and
fulfilled the other regulatory requirements.
In these terms the
provisions of the original wording of article 3 and its paragraphs,
of REN 482.
However, the legal regime of small, distributed
generators and the SECS presented, until recently, a relevant
factor of legal uncertainty for its adherents. Unlike other legal
regimes for generation, guaranteed and provided for directly
by law, small, distributed generation was still provided for
exclusively by regulation - REN 482 - and could, in theory, be
amended at any time by ANEEL or even lose its effectiveness by
a law that would be enacted to the contrary.
Resolving the issue of insecurity, Federal Law no. 14,300
was finally enacted, on January 6, 2022, which established
the SECS and the special legal regime for small, distributed
generators in national law. Besides this simple, but main change
promoted by the new Law, new features were also introduced
in the operation of this regime and the SECS, which will be the
object of the following chapters.
Before moving on to a detailed analysis of the main
points of the new legal framework, it should also be noted that
the enactment of this framework seeks to respond, albeit in
a transitional manner, as will be seen below, to a demand by
different economic agents involved in the electricity sector for
greater distribution of costs and charges for the maintenance of
the electricity distribution system.
These agents include, on the one hand, the consumer-
generators themselves (small, distributed generators), which
after the enactment of REN 482, began to receive relevant
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discounts on their electricity bills for the energy compensated
by the injection of their energy into the distribution grid.
On the other hand, however, there is a portion of
the other consumers in the regulated market without their
generation - who are afraid of being proportionally more
responsible for certain charges and maintenance costs of
the distribution and transmission grid -, and especially the
distributor, which has observed a reduction in the distribution
market in recent years, since, with distributed generation, the
distributor sells less electricity to consumer-generators.
1. FRAMING AS DISTRIBUTED GENERATION IN THE NEW
LAW
The New Law introduced some changes in the framework
of consumers as consumer-generator (or small distributed
generators) for adhesion to the SCEE. Two hypotheses of
classification were maintained: the holder of a consumer
unit with distributed microgeneration or minigeneration.
So
provides Article 1 of Federal Law No. 14,300/2022: Art. 1 For
the purposes and effects of this Law, the following definitions
are adopted: (...) V - consumer-generator: holder of a consumer
unit with distributed microgeneration or minigeneration.
The basic characteristics of the distributed
microgeneration category were not changed by the New Law.
Thus, it is classified as an electric power generating plant
with installed power lower or equal to 75 kW (seventy-five
kilowatts), whose energy source is qualified cogeneration or
renewable sources of electric energy.
Qualified cogeneration is
a type of energy generation provided for in ANEEL Resolution
No. 235 of November 14, 2006, which consists of the combined
production of heat and mechanical energy, which is totally or
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partially converted into electricity, provided that the process
meets the minimum energy rationality requirements outlined
in the regulation. This is provided by Article 1, item XI, of
Federal Law No. 14,300/2022.
Distributed minigeneration, in turn, has undergone
some changes. According to the REN 482, as updated, the
generating plant with an installed capacity greater than 75 kW
(seventy-five kilowatts) and less than or equal to 5 MW (five
megawatts) was classified as mini generation, and these limits
apply to both traditional and renewable sources of electricity.
That was the provision of article 2, item II, of REN 482, as
amended by ANEEL Normative Resolution No. 786, of October
17, 2017.
The New Law established some differences in the
maximum installed capacity of the generating plant according
to the source of generation. The maximum power of 5 MW
(five megawatts) was maintained for hydroelectric plants,
qualified cogeneration, biomass, and biogas, but for generating
plants from wind, solar or other sources not listed in the law,
the maximum power limit for classification as mini generation
was reduced to 3 MW (three megawatts).
This is provided by
Article 1, items IX and XIII, of Federal Law No. 14,300/2022.
However, as a transition mechanism, the New Law
determined that consumer units with a distributed generation
already existing on the date of publication of the Law (January
7, 2022) and those that file their request for access to the
distribution grid within 12 (twelve) months of the date of
publication of the Law may maintain the 5 MW installed power
limit until December 31, 2045. Therefore, the maximum limit of
3 MW (three megawatts) for the installed power of distributed
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mini generation will only be applied to units that request access
to the distributor as of January 8, 2023.
Thus, the generating
plants that exceed the limits of installed power foreseen by the
New Law, observing the transition rule, will be forbidden to
join the SECS. In this case, these generating plants may have
their energy destined for the commercialization of energy in
the free market or the participation in energy auctions of the
regulated market.
In any case, to prevent interested consumers from
artificially seeking the most beneficial classification of a plant
with greater installed power as distributed microgeneration
or minigeneration, the New Law prohibited the division of a
generating plant into smaller units for classification purposes, a
procedure known as “dismemberment of a plant”.
So provides
Article 11, paragraph 2, of Federal Law No. 14,300/2022.
In this regard, it should be noted that the New Law did
not impose a limit on the number of mini or micro-distributed
generation plants that the same consumer-generator my own,
and the consumer’s autonomy should prevail on this point.
In this way, the prohibition to dismember the plant does not
translate into the imposition of a general maximum limit
of installed power per consumer-generator, but only in the
maximum limit of installed power per consumer plant for
classification purposes.
Thus, the same consumer-generator may be the holder
of different consumer units with the mini or micro-distributed
generation, provided that such units cannot be considered the
result of the dismemberment of a larger plant.
ANEEL has not
regulated, to date, the exact criteria for considering smaller
plants as a split of a larger plant. However, the stipulation of
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such criteria will likely be related to the physical proximity
between the plants, the contiguity of the properties where
they are installed, and/or the sharing of network infrastructure
(such as the same power substation).
Additionally, the New Law allowed that the public
lighting installations of a municipality may be considered a
consumer unit with distributed generation for adhesion to
the SCEE, provided that the regulations on the subject to be
issued by ANEEL are observed.
Article 20 of Federal Law No.
14,300/2022 provides in this regard.
On the other hand, the New Law prohibited free
and special consumers who exercise the option to purchase
electricity in the Free Contracting Environment - ACL from
joining the SCEE and prohibited the classification as a small,
distributed generation to generation projects that already have
legal titles (concession, permission, or authorization) to sell
energy in the ACL or the Regulated Contracting Environment -
ACR, whose generated energy would already be committed with
any distributor.
This is provided by Article 9, sole paragraph, of
Federal Law No. 14,300/2022.
2. THE SECS
The Electric Energy Compensation System or SCEE
is what enables consumers in the regulated market (who buy
energy directly from the distributor) with mini and/or micro-
distributed generation to compensate, in their electric energy
bill, the amount to be paid for electric energy consumed from
the distribution network with the amount of electric energy
injected from the generating plant. In this way, the electric
energy injected into the distribution network is ceded as a free
loan to the distributor, and the distributor must compensate the
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consumer-generator by reducing the amount charged for the
energy consumed from the distribution network in the same
billing cycle or subsequent billing cycles.
This is provided by
Article 9, sole paragraph, of Federal Law No. 14,300/2022.
According to the New Law, the measurement and
calculation of the amount of electric power injected into the
distribution network, the amount of active electric power
consumed, and the eventual surplus of electric power verified
(positive difference between the energy injected and the energy
consumed) must be conducted by the distributor at each billing
cycle, and must be performed by tariff station, when applicable.
This is provided by Article 12 of Federal Law No. 14,300/2022.
Then, at each billing cycle, for each tariff station, the electric
power distribution concessionaire must calculate the amount
of active electric power consumed and the amount of active
electric power injected into the grid by the consumer unit with
distributed microgeneration or minigeneration in its respective
concession area. This is provided by Article 9, sole paragraph,
of Federal Law No. 14,300/2022.
The compensation described above may occur by up
to four distinct and successive mechanisms. In the first two
mechanisms, the compensation occurs in the same consumer
unit to which the generating plant with distributed micro or
mini generation is connected and in the same billing cycle.
These four procedures, which we refer to here as mechanisms,
are not systematically set out in Federal Law No. 14,300/2022
but can be inferred from the analysis of its provisions. These
mechanisms should not be confused with what the New Law
calls compensation modalities, which, as we will see below,
are conditioning categories of what we call here tertiary and
quaternary compensation.
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Firstly, the electric energy injected into the distribution
grid by the consumer unit with mini or micro-distributed
generation will compensate for all the active electric energy
consumed by the same consumer unit calculated in the same
tariff station of the same billing cycle (in the same month). If
the amount of electric energy injected is lower than the amount
of energy consumed, the energy injected will be completely
compensated only by this first mechanism, with no advance
for the following ones. In this case, the consumer will have
an immediate discount (in that same billing cycle), equivalent
to the energy injected, in the amount charged in the invoice
for the energy consumed in that same tariff station and must
pay the distributor the residual value corresponding to the
energy consumed that was not compensated.
Moreover, the
provisions of the first part of Article 12, § 1, of Federal Law No.
14,300/2022:
Art. 12 (...)
§ 1 The surplus electricity from a tariff station must
be initially allocated to the same tariff station and
sequentially to other tariff stations of the same
consumer unit that generated the electricity and,
subsequently, to one or more of the following options
.
In the shared generation and EMUC compensation
modalities, which will be analyzed below, the New Law seems
to allow an exception to this rule. Along these lines, in the two
modalities mentioned above, all the electric power injected
could, at the holder’s discretion, be distributed as a surplus to
other connected consumer units, even if energy consumption
was calculated in the consumer unit to which the generating plant
is connected. In this regard, check the provisions of the second
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part of article 1, item VIII, of Federal Law no. 14,300/2022. In
the shared generation and EMUC compensation modalities,
which will be analyzed below, the New Law seems to allow an
exception to this rule. Along these lines, in the two modalities
mentioned above, all the electric power injected could, at
the holder’s discretion, be distributed as a surplus to other
connected consumer units, even if energy consumption was
calculated in the consumer unit to which the generating plant
is connected. In this regard, check the provisions of the second
part of article 1, item VIII, of Federal Law no. 14,300/2022.
Although the New Law does not conceptualize each of
the four mechanisms, this first mechanism could be called, due
to its characteristics and operation, primary compensation or
compensation of the energy injected in the same tariff station.
This is provided by the first part of Article 1, item VIII
of Federal Law No. 14,300/2022:
Art. 1 (...)
VIII - electric power surplus: the positive difference
between the electric power injected and the electric
power consumed by the consumer unit with distributed
microgeneration or minigeneration owned by the
consumer-generator, determined by tariff station at
each billing cycle.
This mechanism could be called secondary
compensation or immediate compensation of the surplus
in the other tariff posts of the unit with generation. It is the
provision of the second part of article 12, § 1, of Federal Law
No. 14,300/2022:
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Art. 12 (...)
§ 1 The surplus electricity from a tariff station must
be initially allocated to the same tariff station and
sequentially to other tariff stations of the same
consumer unit that generated the electricity and,
subsequently, to one or more of the following options
.
On the other hand, if the electrical energy injected is
higher than the electrical energy consumed in the same tariff
station, all this consumed energy will be compensated and the
remaining difference will constitute surplus electrical energy.
This is provided by the first part of Article 1, item VIII of
Federal Law No. 14,300/2022:
Art. 1 (...)
VIII - electric power surplus: the positive difference
between the electric power injected and the electric
power consumed by the consumer unit with distributed
microgeneration or minigeneration owned by the
consumer-generator, determined by tariff station at
each billing cycle.
Initially, this surplus electricity shall be allocated to
the other tariff positions of the same consumer unit to which
the power plant is connected.
This mechanism could be called
secondary compensation or immediate compensation of the
surplus in the other tariff posts of the unit with generation. It
is the provision of the second part of article 12, § 1, of Federal
Law No. 14,300/2022:
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Art. 12 (...)
§ 1 The surplus electricity from a tariff station must
be initially allocated to the same tariff station and
sequentially to other tariff stations of the same
consumer unit that generated the electricity and,
subsequently, to one or more of the following options
.
In sequence, if the energy consumption verified in all
the tariff posts of the consumer unit with distributed generation
is completely compensated with the calculated surplus, and
there is still a surplus not compensated, the residual value
of this surplus may have different destinations, depending
on the compensation modality chosen by the consumer.
The
compensation modalities presented by the Law could properly
be called tertiary and quaternary compensation modalities or
simply surplus destination modalities, to differentiate them
from the first two compensation mechanisms that apply, as a
rule, regardless of the modality chosen.
The modalities will establish the way and the possibility
of application of the tertiary compensation mechanism
(compensation by other consumer units in the same billing
cycle). About the tertiary compensation and the destination of
the surplus, the third part and the clauses of article 12, § 1, of
the Law:
Art. 12. (...)
§ The surplus electricity from a tariff station should
be initially allocated to the same tariff station and
sequentially to other tariff stations of the same
consumer unit that generated the electricity and,
subsequently, to one or more of the following options:
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I - same consumer unit that injected the electric power,
to be used in subsequent billing cycles, transformed
into electric power credits;
II - other consumer units of the same consumer-
generator, including parent company and branches,
served by the same electric power distribution
concessionaire or permissionaire;
III - other consumer units located in the undertaking
with multiple consumer units that injected the electric
power; or
IV - consumer units of the holder of shared generation
served by the same electric power distribution
concessionaire or permissionaire.
Firstly, the surplus may be destined for the same
consumer unit that generated it, becoming electric energy
credits, to be used for compensation of energy consumed
in future billing cycles. This modality is called local self-
consumption.
This is provided by Article 1, the item I of Federal
Law No. 14,300/2022:
Art. 1 (...)
I - local self-consumption: modality of microgeneration
or minigeneration distributed electrically close to the
load, participant of the Electric Energy Compensation
System (SCEE), in which the surplus electric energy
generated by a consumer-generator consumer unit,
natural or legal person, is compensated or credited by
the same consumer unit. This compensation modality
may be useful when a high seasonality index is verified
in the generation of electric energy of the power plant.
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In this way, the energy generated in the summer could
generate electric energy credits to be deducted from
the energy bill consumed during the winter.
Alternatively, the surplus may be destined for another
consumer unit owned by the same individual or legal entity that
owns the consumer unit as micro or minigeneration, provided
that both or all the participating consumer units are located
in the concession area of the same distributor. To this second
modality, the New Law attributes the denomination of remote
self-consumption.
So provides Article 1, item II of Federal Law
No. 14,300/2022:
Art. 1 (...)
II - remote self-consumption: modality characterized
by consumer units owned by the same legal entity,
including parent and branch offices, or individuals who
own consumer units with distributed microgeneration
or minigeneration, with all consumer units being
served by the same distributor.
In this case, the surplus may compensate the electric
energy consumed by the beneficiary unit of the holder in the
same billing cycle in which it was generated, contributing to
the corresponding discount or rebate in the electric energy bill,
or, if the surplus is higher than the energy consumed by the
beneficiary unit in that billing cycle, it will be transformed into
electric energy credits to be used for compensation in future
billing cycles, following the mechanism exposed above.
So
provides Article 1, item II of Federal Law No. 14,300/2022:
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Art. 1 (...)
II - remote self-consumption: modality characterized
by consumer units owned by the same legal entity,
including parent and branch offices, or individuals who
own consumer units with distributed microgeneration
or minigeneration, with all consumer units being
served by the same distributor.
In the shared generation compensation modality, the
surplus verified in a consumer unit with distributed micro or
mini generation may be destined to consumer units of other
holders, whether they are individuals or legal entities, provided
that all the holders of the participating consumer units integrate
the same civil entity for shared generation and that the units are
in the concession area of the same distributor.
The New Law introduced a major innovation in
this type of compensation by allowing consumers to join for
shared generation purposes using voluntary civil or building
condominiums or any other form of civil association instituted
for this purpose, in addition to the possibilities of consortium or
cooperative, already contemplated by REN 482. This flexibility
means, in practice, that the Law expands the number of potential
consumers capable of “purchasing” energy from distributed
micro and mini-generation projects by joining an association
for a shared generation. The amendment also allows for the
diversification of business models in the distributed generation
sector, contributing to an increase in market competitiveness.
In this regard, see the provisions of article 1, item X of Federal
Law No. 14,300/2022, and article 2, item VII of REN 482, as
amended.
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Finally, the compensation modality enterprise with
multiple consumer units or EMUC may be formed by the set
of consumer units located in the same property or contiguous
properties, without separation by public roads or by other
properties that do not integrate, in which the facilities to serve
the common use areas constitute a distinct consumer unit,
to which the generating plant with mini or micro distributed
generation is connected.
The physical proximity between
the consumer units of the EMUC, often coinciding with the
condominium building, is one of the main differences in this
compensation modality for a shared generation.
In this case, the surplus verified in the consumer unit
of the common use areas may be distributed among the other
consumer units integrating the enterprise (
this is the provision
of Article 1, item VII, of Federal Law No. 14,300/2022).
In all compensation modalities with the plurality of
participating consumer units (that is, except for the local self-
consumption modality), the consumer-generator holder of the
consumer unit with distributed generation may establish the
criterion for distribution of the surplus among the beneficiary
units. The distribution may occur by percentage (e.g. 60% for
one unit, 40% for another), as already provided by REN 482,
or by priority (e.g. destination of the surplus to consumer
unit X until full compensation of its consumption, with the
destination of the remaining surplus to consumer unit Y, to
the extent available), a new possibility introduced by the Law.
This is the provision of Article 1, item VII, of Federal Law No.
14,300/2022. Also, this is provided by Article 14, caput, of
Federal Law No. 14,300/2022.
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3. LEGAL REGIME OF ELECTRICITY CREDITS
As seen above, after all the possibilities of compensation
of the surplus in the same billing cycle have been exhausted
- either by the consumer unit with distributed micro or mini
generation or any other beneficiary unit that has received it in
the modalities of remote self-consumption, shared generation
or EMUC - the surplus not compensated will accumulate in the
beneficiary consumer unit and will be transformed into electric
energy credits.
The electric energy credits, in turn, will be allocated to
the beneficiary consumer unit (which in the case of local self-
consumption, will be the unit with micro or minigeneration) and
may (i) be used in subsequent billing cycles to compensate for
the electric energy consumed; or (ii) be sold to the distributor.
In this line, the electric energy credits shall be
registered in the beneficiary consumer unit in terms of active
electric energy (kWh), and their accumulated amount cannot be
changed due to the variation in the electric energy tariff values.
For compensation for the energy consumed by the consumer
unit, the oldest credits shall always be used to the detriment
of the most recent ones. The credits are valid for 60 (sixty)
months from the billing date in which they were generated, and
their corresponding value will be destined to the tariff in case
of expiration of this term without the use of the credits by the
consumer.
With the distribution of credits among the consumer
units benefiting from the SCEE, in addition to the criteria
for sharing the surplus allowed to the consumer and already
explained above, the New Law innovated by conferring the right
to reallocate credits accumulated by a consumer unit to another
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consumer unit of the same ownership, upon simple notification
to the distributor. Under REN 482, reallocation could occur
only in the event of closure of a consumer unit, meaning that, in
practice, many consumer units accumulated excess credits that
they could hardly use or allocate to another unit. This change
consists of one of the main flexibilities conferred by the New
Law to the electric energy credit distribution regime.
4. CHANGES IN THE ENERGY COMPENSATION
METHODOLOGY IN THE SECS
In addition to the novelties presented in the previous
topics, the New Law introduced three substantial changes in
the methodology for the compensation of electric energy in the
SECS, which directly impact the viability and financial return
of distributed micro and mini generation projects. They are: (i)
the transition regimes for the incidence of tariff components
in the compensated energy in the SECS; (ii) the correction
of the “duplicity” in the collection of the availability cost for
consumers in tariff group B; and (iii) the application of the
TUSD Generation to consumers-generators in tariff group A
with distributed generation.
4.1. Transition Regimes for the Incidence of Tariff
Components on Compensated Energy
The main change in the methodology for calculating
the compensation of electric energy in the SECS consists of the
provision for the incidence of tariff components related to the
operation and maintenance of the distribution electric system
on all the energy compensated in new distributed micro and
minigeneration projects, as will be seen below.
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According to the Tariff Regulation Procedures approved
by ANEEL in the form of Normative Resolution No. 1,003, of
February 1, 2022 - PRORET, the monthly billing of users of the
electricity distribution system is made by charging the Energy
Tariff - TE and the Distribution System Use Tariff - TUSD. Both
are applied on the amount of energy consumed and, on the
demand, contracted by the user, when applicable, to calculate
the final amount to be paid in a billing cycle to the distributor.
Along these lines, under the REN 482 compensation
rules, the energy compensation that occurs under the SCEE
is considered as parity, since 1 MWh (one megawatt-hour)
injected into the distribution grid completely offsets all the
costs of 1 MWh (one megawatt-hour) consumed from the
distribution grid. In this way, the consumer only needs to pay
the bill for energy consumed that is not compensated, without
the incidence of any TE or TUSD tariff component on the
compensated energy.
Also, according to PRORET, TUSD is composed of
three tariff components: (i) TUSD Transport, which in turn
comprises TUSD Fio A - corresponding to the regulatory
costs for the use of transmission systems - and TUSD Fio B -
corresponding to the regulatory costs for the use of assets
owned by the distributor itself, including distribution system
administration, operation, and maintenance costs; (ii) TUSD
Charges; and (iii) TUSD Losses.
Thus, it can be observed that the equal compensation
allowed to small, distributed generators under REN 482 exempts
them from paying the TUSD and especially the TUSD Fio B -
its main tariff component, which remunerates the distribution
services - on all the compensated energy. This exemption allows
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small, distributed generators to currently bear comparatively
less of the costs of maintaining and operating the distribution
system than other consumers in the regulated market. This
difference is seen by some as a necessary cross-subsidy to
stimulate a renewable energy source in the national electricity
matrix, while by others, it is an injustice to the regulated
consumer who is outside the SECS.
The second view seems to have prevailed over the
legislator for the enactment of the New Law. Thus, transitional
regimes were instituted so that the compensation of electricity
under the SCEE ceases to be parity and becomes partial, with the
gradual incidence of TUSD components - mainly the TUSD Fio B
- on all electricity compensated by consumer units participating
in the SCEE, no longer being limited to the incidence of these
tariffs on the amount of energy not compensated.
In practice, this means that after the incidence of
the tariff components, the electric energy injected will have
a slightly lower value than the electric energy consumed,
increasing the operating costs of distributed generation with
those practiced under the REN 482.
However, due to the sensitivity of the topic, the New
Law instituted transition regimes to safeguard the legal security
of already existing projects and to mitigate the effect of the
incidence of these tariff components on the viability of future
distributed generation projects.
The first transition regime instituted by the New Law
consists simply of the continuity of the surplus valuation rules
of REN 482 until December 31, 2045 (that is, for almost 24
years after the enactment of the New Law). This transition
regime applies to all the developments already existing on the
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date of publication of the New Law and to those that file the
access request within 12 (twelve) months from its publication,
constituting a “window of opportunity” for the maintenance
of the parity compensation until the deadline provided by the
Law.
Regarding this final deadline for framing in the first
transition regime, it is important to highlight that the law
expressly states that the access request must be filed with the
distributor within 12 (twelve) months. The protocol of the
access request is the first step in the connection procedure
of a distributed micro or mini generation plant with the local
distributor, not to be confused with the later phases of issuing
the access opinion, signing the access opinion, or signing the
contracts for access to the distribution network.
These later
phases, therefore, may occur after the period of 12 (twelve)
months from the publication of the Law.
In any case, a second deadline must be observed for
this later phase to start the injection of energy by the power
plant in the distribution grid, to ensure the maintenance of
the framework in this first transition regime. This second
deadline is counted from the issuance of the access opinion
by the distributor and varies between 120 (one hundred and
twenty) days for microgeneration, 12 (twelve) months for
minigeneration of solar source, and 30 (thirty) months for
minigeneration of other sources.
The New Law also provided for other three transition
regimes, all applicable to consumers who file an access request
after 12 (twelve) months from the publication of the New Law,
with the three having as a common characteristic the levy of
the TUSD Fio B on all the energy compensated in the respective
consumer units as of 2023.
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In the second transition regime, applicable to the
consumer units that file an access request between the 13th
(thirteenth) and the 18th (eighteenth) month counted from the
publication of the New Law, the incidence will occur gradually,
starting with the incidence of 15% (fifteen percent) of the
TUSD Fio B as of 2023 until reaching 90% (ninety percent) as
of 2028, maintaining this percentage (and the transition regime
itself) until the end of 2030. The third transition regime, in
turn, applies to consumer units that file an access request as
of the 19th (nineteenth) month of the publication of the New
Law, and has the same characteristics as the previous one, with
the sole exception that in this regime the transition rules will
only be in force until the end of 2028.
Finally, the fourth and last transition regime, applicable
to units with distributed mini generation with installed capacity
greater than 500 kW (five hundred kilowatts) that meet some
specific energy and corporate requirements, consists in the
incidence until the end of the year 2028 of 100% (one hundred
percent) of the TUSD Fio B, 40% (forty percent) of the TUSD
Fio A and 100% (one hundred percent) of the Research
and Development (P&D), Energy Efficiency (EE) and the
Supervision Tax of Electric Energy Services - TFSEE.
After the end of each transition regime provided by
the New Law, the respective distributed generation projects
covered by it must adhere to the single post-transition regime
for the valuation of credits. However, the New Law gave great
indeterminacy to the compensation rules of this future regime.
On the one hand, it established that all consumer units
will be invoiced by the incidence of the TUSD components
on all the electric energy consumed from the grid and on the
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use or demand. On the other, it established that all benefits to
the electrical system provided by micro and mini-distributed
generation plants should be deducted from the amount billed.
Along these lines, the Law granted the National Energy
Policy Council (CNPE) the duty to establish the guidelines
for valuation of the costs and benefits of small distributed
generation within 6 (six) months of publication of the Law, and
ANEEL the duty to establish the calculations for valuation of
such benefits, following the guidelines approved by the CNPE,
within 18 (eighteen) months after publication of the Law.
4.2. The Cost of Availability
In contrast to the transition regimes of surplus valuation,
which increased costs for small, distributed generation, the New
Law also brought changes in the compensation methodology
that benefit the consumer-generator, such as the end of
“double” charging for the cost of availability for consumers in
Tariff Group B.
The availability cost is the minimum billable amount of
energy that must be paid in every billing cycle by the consumer
of Group B, to remunerate the distributor for the constant
availability of energy to the consumer.
Under REN 482, many consumer-generators in Group B
have the impression that they are paying the cost of availability
“twice” since the standard provides for the minimum collection
of the cost of availability in every billing cycle also for consumer
units participating in the SECS but does not stipulate any rule
that excludes from the compensation calculations the portion
of active energy consumed that must be paid anyway by the
consumer as availability cost. Thus, the consumer perceives a
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double financial impact, because he pays the cost of availability
with credits and with money every billing cycle.
The text enacted in the form of the New Law
responded to consumers’ demands for the elimination of this
duplicity in two distinct ways. For consumers under the first
transition regime described above, the New Law prevented
the value of the availability cost from being counted as part
of the energy compensated with credits, and it must only
be paid in currency, separately, without debiting the value
corresponding to the availability cost in the number of credits
used in the consumer unit.
With a similar economic effect, for the other transition
regimes, the New Law excluded the need for separate payment
of the availability cost. For these, the availability charge must
only be applied when the measured consumption is lower, and
the verified difference must be paid by the consumer.
4.3. The TUSD Generation in Small Distributed Generation
The New Law introduced yet another novelty to
the compensation methodology in the SCEE. This time, the
beneficiaries are Group A consumers, a group that, as a rule,
needs to contract demand with the distributor to guarantee the
availability of the energy needed in the grid at the time of use.
1
The novelty consists in the possibility of consumer
units with mini generation paying for the contracted demand
for the injection of the energy generated in the distribution
network at a tariff significantly lower than the one charged on
1
Group A consumers, except for those who can and choose to be billed
as Group B consumers (“B opting”), have the blue or green hourly tariff
mode and are required to contract demand with the distributor.
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the contracted demand for consumption. This special tariff is
called TUSD Generation or simply “TUSD g”.
Along these lines, TUSD Generation is a special tariff
for power plants regulated by Submodule 7.4 of the PRORET.
Although its specific value varies according to the concession
area where the plant is located, it is usually, on average,
considerably lower than the TUSD Demand or TUSD Load,
corresponding to the common energy consumption demand of
a consumer unit.
The Generation TUSD will be immediately applied to
distributed generation projects governed by the new transition
regimes (for which an access application is submitted to the
distributor after twelve months from publication of the Law),
but may only be applied to projects under the first transition
regime - which covers existing generating plants and those that
apply for access within twelve months of publication of the Law
- as from the first tariff review by the local distributor after the
publication of the Law
CONCLUSIONS
As seen above, Federal Law No. 14,300/2022 introduced
important changes to the legal regime of small, distributed
generations in Brazil. Firstly, by instituting the SECS by law, it
conferred greater legal security for consumers participating in
this market. The New Law also introduced novelties that made
the system’s compensation modalities more flexible, making
it possible, in the case of shared generation, for consumers
to join through any form of civil association permitted by
law, contributing to the expansion and diversification of the
distributed generation market. The distribution of the surplus
and credits was also made more flexible with the introduction
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of a new criterion of eligible distribution by the consumer-
generator, namely the distribution among the beneficiary units
in order of priority, and with the new possibility of reallocating
credits already accumulated by a consumer unit to another unit
of the same ownership, by simple request to the distributor.
As for the SCEE’s compensation methodology, the
New Law introduced transition regimes to allow the incidence
of TUSD tariff components - especially the part relating to the
operation and maintenance of the distribution network itself
- to new distributed generation projects, as a way to address
the growing concern of part of the electricity sector regarding
the increase in maintenance costs for other consumers in
the regulated market but creating mechanisms to preserve
the legitimate expectations of consumers who made their
investments under the previous rules of REN 482. On the
other hand, new projects may gain in efficiency with the end
of the “double” charging of the cost of availability, for Group B
consumers, and with the introduction of the Generation TUSD,
for Group A consumers.
Finally, it is worth noting that all changes that did not
require a change in regulations or procedures of the distributor
became effective immediately upon publication of the Law.
In all other cases, distributors and ANEEL were able to adjust
their regulations and procedures within six (6) months after
the publication of the Law.
REN 482, in turn, was not formally revoked by the
New Law, but all its provisions that diverge from the New Law
ceased to be in force as of its publication, due to the principle
of hierarchy of norms. Thus, ANEEL must update REN 482 to
adapt it to the new contours of the SECS stipulated by law.
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Câmara dos Deputados do Brasil.
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1995.
Ioan Dulu, L. and Dorin Bic, M. A. (2014).
Distributed
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Procedia
Technology
, 12, pp. 687-692.
National Electric Energy Agency
ANEEL. (2015). Normative
Resolution No. 687 of November 24, 2015.
National Electric Energy Agency
ANEEL. (2017). Normative
Resolution No. 786 of October 17, 2017.
Presidência da República da Brasil.
(2004). Federal Decree nº
5.163 of July 30th, 2004.
Presidência da República da Brasil.
(2004). Federal Law no.
10,848, of March 15, 2004.
Presidência da República da Brasil.
(2022).
Federal Law No.
14,300, of January 6, 2022.
Presidência da República da Brasil. (2022). Federal Law No.
14,300/2022.
Presidência da República da Brasil.
(2022). Federal Law No.
14,300/2022.
Sosnina, E. N., Shalukho, A. V., Lipuzhin, I. A. and Voroshilov,
A. A. (2019). The Increase of Small Distributed
Generation Efficiency,
2 019 IEEE Conference of
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Received:
10/08/2021
Approved:
09/26/2022
Vitor Rhein Schirato:
PhD Professor of Administrative Law
at the University of São Paulo (USP) Law School. PhD in State
Law from the Law School of USP. Master of Laws (LL.M.) in
Economic Administrative Law from the University of Osnabrück,
Germany.
Member of Associazione Italiana dei Professori di
Diritto Amministrativo (AIPDA).
Academic Secretary of the
Center for Studies of Administrative, Environmental and Urban
Law - CEDAU.
(USP)
City:
Sao Paulo
Country:
Brazil
Email:
vrschirato@usp.br
ORCID:
https://orcid.org/0000-0001-5563-2265
Felipe de Almeida Ribeiro Campos:
Independent legal
researcher
specialized in infrastructure and administrative law.
City:
Sao Paulo
Country:
Brazil
Email:
rfj@puce.edu.ec
ORCID:
https://orcid.org/0000-0003-4490-6755