Wednesday, May 8, 2019

Power deals should undergo competitive selection process, SC tells Meralco, DUs


Updated May 6, 2019, 6:41 PM By Jeffrey Damicog and Ellson Quismorio 

The Supreme Court (SC) has ordered the Manila Electric Company (Meralco) and other Distribution Utilities (DU) to pick their respective power suppliers through Competitive Selection Process (CSP).
In an en banc session held on May 3, the SC ruled that all power supply agreements submitted to the Energy Regulatory Commission (ERC) on or after June 30, 2015 should have undergone CSP pursuant to Department of Energy (DOE) Circular No. DC2015-06-0008.
Because of this, the High Court said that it “further ordered that the power purchase cost after compliance with the CSP shall retroact to the date of the effectivity of the PSA, but in no case earlier than 30 June 2015, for purposes of passing the purchase cost to the consumers.”
The SC acted on the petition filed by the Alyansa para sa Bagong Pilipinas, Inc. (ABP) which questioned ERC resolutions which pushed back the implementation of the CSP requirement set by the DOE and allowed DUs to make direct deals with power suppliers and skipped conducting CSPs.
The ABP named as respondents in its petition ERC Chairperson Jose Vicente Salazar, DOE Secretary Alfonso Cusi, Meralco, Central Luzon Premier Power Corporation, St. Raphael Power Generation Corporation, Panay Energy Development Corporation, Mariveles Power Generation Corporation, Global Luzon Energy Development Corporation, Atimonan One Energy, Inc., Redondo Peninsula Energy, Inc., and Philippine Competition Commission
In its ruling which granted the petition, the SC said the ERC gravely abused its discretion amounting to lack or excess of jurisdiction when it unilaterally postponed the effectivity of the CSP requirement twice through the issuance of ERC Resolution No. 13 in 2015 and ERC Resolution No. 1 in 2016.
“The ERC’s delegated authority is limited to implementing or executing Competitive Selection Process (CSP) in accordance with the 2015 DOE Circular, not postponing the CSP so as to freeze CSP for at least 20 years, effectively suspending CSP for one entire generation of Filipinos,” read the ruling penned by SC Associate Justice Antonio Carpio.
“The delegated authority to implement CSP does not include the authority to postpone or suspend CSP for 20 years, beyond the seven-year terms of office of the ERC Commissioners postponing or suspending the CSP, and beyond the seven-year terms of office of their next successors, as well as beyond the six-year terms of office of three Presidents of the Republic,” the ruling added.
“This is a very positive development because it spared consumers another burden that we would have to bear for 20 years. We believe that some ERC officials bent backwards several times to accommodate these Meralco power deals. We repeat our vow to oppose these PSAs and hold officials who allow it accountable,” said Bayan Muna Party-List Rep. Carlos Zarate.
The SC pointed out DOE Circular No. DC2015-06-0008 was issued pursuant to DOE’s mandate under the Electric Power Industry Reform Act of 2001 (EPIRA) to “formulate such rules and regulations as may be necessary to implement the objectives of this Act.”
The High Court noted the CSP is “a form of competitive public bidding for the purchase of electricity by DUs” and “formulated for the protection of the consuming public.”
It explained the CSP is “primarily aimed at ensuring a fair, reasonable, and cost effective generation charge for consumers, under a transparent power sale mechanism between the generation companies and the DUs.”
But the ERC issued in 2015 Resolution No. 13 which set the cut-off date for the compliance of the CSP requirement to Nov. 7, 2015 instead of June 30, 2015 set by the DOE circular.
The same ERC resolution also indicated that the CSP requirement shall not apply to PSAs already filed with the ERC.
The ERC later issued Resolution No. 1 in 2016 which pushed further back the CSP implementation to April 29, 2016.
So far, there are a total 90 PSAs pending for approval with the ERC, including those with deals between DUs and power suppliers spanning over 20 years.
Zarate said the SC rejection of the alleged “sweetheart deals” that Meralco negotiated with its own generating companies (gencos) in 2016 is consistent with the findings of the House on these controversial contracts.
“The decision of the Supreme Court jived with the joint committee report of the House of Representatives and showed that the ERC (Energy Regulatory Commission) and Meralco toyed with the competitive selection process,” Zarate said in a statement Monday.
It was recalled that Zarate filed in 2017 House Resolution (HR) 566, which called for an investigation on the supposedly onerous and disadvantageous PSAs that the gencos were seeking before the regulatory body.
The Committees on Good Government and Public Accountability and on Energy took part in the House inquiry, wherein it was learned that the PSAs were accepted by the ERC after the 5 p.m., April 29, 2016 deadline set by the Commission itself. This meant that ERC accommodated Meralco and “bent its own rules,” Zarate said.
Last month, in a “Petition-in-intervention with an application for urgent relief by way of Temporary Restraining Order (TRO) and/or Writ of Preliminary Injunction,” Zarate and Bayan Muna Chairman Neri Colmenares asked the SC to allow them to intervene in the case originally filed by ABP, Inc. in 2017.
“We salute and congratulate ABP for pursuing this monumental case all the way to the SC, despite the limited resources and grave pressures in battling a giant like Meralco,” Zarate said.
“We should not allow the greed of these energy oligarchs to continue. Those government officials who allowed this should be made accountable and charges must be filed against them,” the Davao-based lawmaker further said.
Zarate has claimed that based on his computation, consumers will shoulder a whopping P930 billion in additional power rate expenses should the ERC approve the power deals, which have a duration of 20 to 21 years.
While he isn’t opposed to the construction of new power plants, Zarate said that a CSP will ensure that the public will get a better deal as far as power rates are concerned.

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