The authors advise on energy projects at the Chilean law firm Larraín Rencoret Urzúa. In September 2018 it was announced that, following a vote by the partners of Dentons, it was expected that Larraín Rencoret Urzúa would shortly be combining with Dentons.
In the 1980s, Chile was one of the pioneers of electricity market liberalization. More recently, benefiting from both the strength of its regulatory culture and its exceptional renewable energy resources, its non-hydro renewables sector has enjoyed spectacular growth, particularly in the form of solar projects – and there is more to come.
1. Policy and law
Chile was the first country to privatize its formerly state-owned electricity industry. Through Decree-Law (DFL) No. 1, enacted in 1982 (the General Law of Electricity Services or LGSE), Chile introduced a deep reform to the electricity sector, obliging vertical and horizontal unbundling of generation, transmission and distribution. This led to large-scale private investment, and introduced competition into the generation sector. A minimum global cost operation model was established, and generation companies were encouraged to enter freely into supply contracts with non-regulated customers and distribution companies (regulated customers).
In recent years, Chile has aggressively pursued an ambitious program to move the country’s energy matrix towards non-conventional renewable resources (NCRE: i.e. renewable electricity generation technologies other than large-scale hydropower). The government’s energy policy encourages supply, security, efficiency and sustainability.
As a first step, in 2004, and as a result of its successful economic development, Chile introduced several legal changes in the industry, which have brought new investment in the electricity generation field and major possibilities for the transmission sector, especially in the interconnection of the two major electricity transmission systems (Central Interconnected System “SIC” and Norte Grande Interconnected System “SING”). As a first critical step, changes to the LGSE, made official in March 2004 through Law No. 19,940, modified several aspects of the market affecting all generators by introducing new elements, especially those applicable to NCRE. In particular, small-scale NCRE generators can now participate more aggressively in the electricity market, as they are partially or totally exempt from transmission charges.
Likewise, Law No. 20,257, better known as the Non-Conventional Renewable Energy Law, which came into force on April 1, 2008, introduced a requirement on all electricity companies selling electricity to final customers to ensure that a certain proportion of the electricity they sell comes from NCRE. A power company unable to comply with this obligation must pay a penalty for each MWh short of this requirement. As of 2013, with the enactment of Law No. 20,698, known as the 20/25 Law, which amended Law No. 20,257, Chile’s objective is that, by 2025, 20 percent of the electricity produced in Chile will come from NCRE sources.
On October 14, 2013, Law No. 20,701 was published in the Official Gazette, amending the LGSE, simplifying the procedure for obtaining an electricity concession (a key step in the development of new substations, electricity network infrastructure and hydroelectric plants: see section 3 below). This new framework was a response to the need for speeding up the procedure and timeframe necessary to obtain an electricity concession, providing more certainty to the system. In summary:
• the process to obtain a provisional electricity concession has been simplified and the timeframe adjusted;
• there is more clarity as to the observations and challenges that those against the project can make;
• the notification process was amended; a simplified and faster judicial procedure has been introduced;
• the process of valuing land or real estate has been amended; and
• potential conflicts between different concessions have been amended.
On February 7, 2014 Law No. 20,726 amended the LGSE, in order to study and promote the interconnection of the SIC and the SING systems. The government stated that this interconnection between SING and SIC would allow the transfer of surpluses produced in the northern part of Chile to its central zones. That interconnection, which was successfully carried out at the end of 2017, should reduce electricity system costs by US$1.1 billion. The interconnection of the two systems is also expected to boost the development of renewable energies and to reduce uncertainty for operators while increasing competition.
ln 2016, Law No. 20,936 (the Transmission Law) redefined the constituent parts of the national transmission system and created the Independent Coordinator of the National Electricity System (the CISEN). Under this law, which was published on July 20, 2016, the Chilean government aims to contribute to the timely expansion of the electricity transmission network. The Transmission Law heightens the role of the government in the electricity sector, granting it greater capacity to execute electricity infrastructure planning, expand the system and determine and manage the creation of land strips for the installation of new structures related to transmission lines. Regarding the CISEN, it has among its duties the coordination of operations, determination of the marginal costs of electricity, to assure open access to the transmission systems, to maintain global safety, and to coordinate economic transactions between agents, determining the marginal cost of electricity and economic transfers among the organizations that it coordinates.
Finally, it is important to mention the project to reform the Water Code that could affect any new hydroelectric project in Chile. The aim of the pending bill would be to reduce water shortages, proposing a series of regulatory changes. Specifically, it proposes an increase in state control, which could affect the legal certainty necessary for the development of economic activities, and would seek to change the legal nature of existing water rights, undermining property rights. This reform aims to change the perpetuity of water rights (DAA). The reform provides that the use of the DAA will have a maximum duration of 30 years, transforming the DAA into a simple administrative concession. In addition, the reform aims to create grounds for revocation, which could affect existing DAAs.
2. Organization of the market
The electricity market in Chile has been designed in such a way that investment and operation of the electricity infrastructure is carried out by private operators, promoting economic efficiency through competitive markets, in all non-monopolistic segments. Thus, generation, transmission and distribution activities have been separated in the electricity market, each having a different regulatory environment.
The distribution and the transmission segments are both regulated and have service obligations and prices fixed in accordance with efficient cost standards. In the generation sector, a competitive system has been established based on marginal cost pricing (peak load pricing), whereby consumers pay one price for energy and one price for capacity (power) associated with peak demand hours.
According to the National Commission of Energy (CNE), Chile’s power generation for September 2018 was 5,972GWh, comprised of: thermoelectric 57 percent, conventional hydroelectric 23 percent and NCRE 20 percent. It is the fifth-largest consumer of energy in South America.
The wholesale electricity market comprises generation companies that trade energy and capacity between them, depending on the supply contracts they have entered into. Companies capable of generating more than the amount they have committed in contracts sell to companies with a generation capacity below what they have contracted with their customers. The CISEN determines physical and economic transfers (sales and purchases) and – in the case of energy – valued on an hourly basis at the marginal cost resulting from the operation of the system during that hour.
3. Authorization to construct and operate generation facilities
While no governmental authorization has to be obtained in order to construct and operate generation facilities, power utilities usually obtain electricity concessions to acquire fundamental rights to protect their investment. A classic key right is the imposition of a right of way over the land whose owners are reluctant to grant rights of way through voluntary agreements. These electric concessions, however, are only available for the construction and development of hydropower plants, substations and transmission lines. These rights of way are fundamental to allow the power company to secure the transport of electricity to the national grid. Notwithstanding the above, authorizations under the Environmental Law, the Land Use Planning Law and the Municipality Law may be required when building a power plant or generation facility.
The Environmental Law (Law No. 19,300, as amended by Law No. 20,417, enforceable since January 26, 2010) establishes a regulatory framework applicable to projects with an environmental impact (article 10 of the Environmental Law and article 3 of its regulation determines the projects that must be submitted to the environmental impact assessment process, among which are power plants with output capacity in excess of 3MW). These projects may force the developer to request and obtain an environmental approval resolution (RCA). In the event of infringement of the obligations established in the RCAs, the Environmental Superintendence may impose the following sanctions: verbal warning, fines of up to US$10 million, revocation of the approval or closure of the facilities.
We do not refer to other permits that must be obtained in advance of developing a generation facility project, such as land use planning permits, water rights or geothermal exploration or exploitation concessions.
According to information provided by the CNE, by October 2018, 56 power generation projects were under construction. Together they represent a capacity of 2,838MW and are expected to start operation between July 2017 and October 2022.
4. Alternative energy sources
According to the CNE, in September 2018, 20 percent of Chile’s power generation came from NCRE. In this respect, Chilean law contains incentives as well as obligations to foster the use of renewable energies. Law No. 19,940, Law No. 20,257 and the regulations contained in Supreme Decree No. 244 (which regulates the NCRE based in small generation units of up to 9MW, known as “PMG” or “PMGD” depending on the type of network to which they are connected) create the conditions necessary for the development of NCRE, encouraging power generation based on alternative energy sources.
NCRE power facilities with less than 20MW may sell their output capacity to the spot market without having to pay (totally or partially) tolls to transmission companies (with differentiated treatment for units of up to 9MW and those between 9MW and 20MW). As regards PMG (only if classified as NCRE) and PMGD, Chilean law incentivizes the development of this kind of energy source, granting them the possibility to decide whether to sell energy at the spot market price (marginal cost) or at a fixed price. Another incentive to this kind of projects is that all PMG and PMGD will operate with auto dispatch, meaning that the owner or operator of the respective PMG or PMGD will be responsible for determining the power and energy to be injected into the distribution network to which it is connected (coordinated with the CISEN).
As noted above, by Law No. 20,257, all electricity companies selling energy to final customers must ensure that a given percentage (20 percent) of the energy they sell comes from an NCRE source. In fact, this target was met some seven years ahead of schedule, because, in 2018, 20 percent of the withdrawals of the power companies will have been injected into the system from NCRE sources. However, already in 2015, the government had published a long-term energy policy (to 2050), which aims, amongst other things, to reach renewables (NCRE + conventional hydropower) shares of electricity generation of 60 percent by 2035 and at least 70 percent by 2050.
New and exclusive bidding process for NCRE
Since 2015, the Ministry of Energy has been obliged to carry out a public bidding process every year for energy coming from NCRE sources, which will help to reach the quotas of NCRE required by law. This competitive mechanism aims to improve the financing conditions of NCRE, and has the followings characteristics:
• the public bidding process can be implemented separately for each transmission system in up to two bidding periods per year. The amount of energy will depend on the projections for the fulfillment of NCRE quotas for the next three years;
• each participant in the bidding process shall submit an offer including the amount of energy (GWh) and a price (US$/MWh); and
• the project will be awarded to the cheapest bid until the necessary amount of energy is reached, considering a maximum price equal to the average cost of the most efficient generation technology of the electric system that can be installed in the long term.
5. Other incentives
Two major undertakings have been launched for the purpose of introducing incentives on NCRE: improvement of the regulatory framework of the electricity market and the implementation of direct support mechanisms for investment initiatives in NCRE:
a. The proposed changes to the regulatory framework intend, among other things, to create the conditions to implement a portfolio of NCRE projects to accelerate the development of the market; to eliminate the barriers that frequently impede innovation; and to generate confidence in the electricity market regarding this type of technology. This is partially achieved by the government enacting the law for the development of NCRE (Law No. 20,257 amended by Law No. 20,698).
b. On the other hand, as declared by the current Environment Minister, since the ratifying of the United Nations Framework Convention on Climate Change (UNFCCC) in 1994 and the signature of the Kyoto Protocol in 2002, Chile has actively engaged in the establishment of national policies in response to climate change. In this regard, it is important to mention Law No. 20,780, which established a new annual tax on emissions from CO2, SO2, NOx and particulate matter (PM) sources. It is aimed at facilities with boilers or turbines that, together, add up to a heat output of at least 50 megawatts thermal (MWth). This tax is called a “green tax” since it would be an incentive for the growth of NCRE projects. Specifically, Chile’s green tax targets large factories and the electricity sector, covering an important percentage of the nation’s carbon emissions. In the case of PM, NOx and SO2 emissions into the air, the taxes will be the equivalent of US$0.1 per ton produced or the corresponding proportion of said pollutants, increasing the result by applying a formula that takes into account the social cost of pollution such as costs associated with the health of the population. In the case of CO2 emissions, the tax is equivalent to US$5 for each ton emitted. In order to determine the tax burden, the Chilean Environmental Superintendency will certify in March of each year a number of emissions by each taxpayer or contributor during the previous calendar year. Each taxpayer or contributor who uses any source that results in emissions, for any reason, shall install and obtain certification for a continuous emissions monitoring system for PM, CO2, SO2, and NOx. This tax will be assessed and paid on an annual basis for the emissions of the prior year, beginning in 2018 for the 2017 emissions.
6. Energy Goals
One remarkable aim in the energy sector, which was included in Law No. 20,936 mentioned in section 1 above, is to define and incorporate electricity storage systems along with generation and transmission facilities, and to organize all the electricity system (including storage) under the CISEN. The Chilean regulatory framework does not currently support electricity storage in a particular way but grants the CISEN broad powers and the ability to allocate permanent funds for research, development and innovation in energy storage. In the coming months, the Chilean authorities must publish the special regulations for the functioning of the CISEN and particularly on how it will use the available funds. In this regard, a new regulatory decree (“Reglamento de Coordinación y Operación”) is already under discussion between the Ministry of Energy and key private players.
The vision of Chile’s energy sector is reflected by its whole legal framework and regulatory system. That vision is also reflected by Chile’s Energy Agenda to 2050. By the year 2050, the vision is to have a reliable, inclusive, competitive and sustainable energy sector. Chile’s development must be respectful of people, of the environment and of productivity, and must ensure continuous improvement of living conditions. The aim is to evolve towards sustainable energy in all its dimensions, on the basis of the attributes of reliability, inclusiveness, competitiveness and environmental sustainability. Chile’s energy infrastructure shall cause low environmental impact. Such impact should be avoided or, if not, then mitigated and compensated. The energy system must stand out as an example of low greenhouse gases emissions and as an instrument to promote and comply with international climate-related agreements.