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March 01, 2021

Regulatory Developments in the Mexican Power Sector—Chapter 3: Tipping the Scales Further in Favor of State-Owned Companies

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REGULATORY DEVELOPMENTS IN THE MEXICAN POWER SECTOR—CHAPTER 3: TIPPING THE SCALES FURTHER IN FAVOR OF STATE-OWNED COMPANIES

As a follow-on to our May 27, 2020 note “Recent Regulatory Developments in the Mexican Power Sector” (referred to hereinafter as “Chapter 1”) and our July 28, 2020 note “Recent Regulatory Developments in the Mexican Power Sector – Chapter 2: The Tug-of-War Continues” (referred to hereinafter as “Chapter 2”), this note highlights further developments in the efforts of the administration of President Andrés Manuel López Obrador (hereinafter, “AMLO” and, his administration, the “AMLO Administration”) to realign the legal framework of the Mexican energy sector in favor of the Federal Electricity Commission (Comisión Federal de Electricidad—CFE) and Mexican Petroleum Company (Petróleos Mexicanos—Pemex). These efforts have been broadly criticized as attempts to undermine the Constitutional reforms of 2013 and ensuing legislation enacted in August 2014, which substantially expanded private investment into the Mexican energy sector (collectively, the “Energy Reform”). Since publication of Chapter 1 and Chapter 2, and despite significant judicial action to the contrary, the AMLO Administration has persevered in vigorously pursuing policies favoring these state-owned enterprises, culminating in its January 29, 2021 submission to the Mexican Congress of a bill (the “AMLO Energy Bill”) to amend the legal framework established by the Energy Reform. The AMLO Energy Bill has preferential treatment allowing for fast tracking of the legislative process. In this note, we will explore the rising tide of regulatory, extra-official and rule-making efforts by the AMLO Administration to tip the balance of power in the Mexican energy sector in favor of CFE and PEMEX, the judicial and industry response to those efforts, and the current push to enact the AMLO Energy Bill.

As explored in detail in Chapter 1 and Chapter 2, during the first seven months of 2020, the AMLO Administration pursued several highly controversial regulations that, if fully implemented, would have the effect of curtailing privately-generated power, especially in the renewables sector. These included the CENACE Resolution,[1] the SENER Policy[2] and the CRE Resolutions,[3] each of which became subject to definitive suspension (suspensión definitiva) in both Mexican Federal Courts (Tribunales Federales) and the Supreme Court of Mexico (Suprema Corte de Justicia de la Nación) pursuant to various constitutional claims, including constitutional controversies and amparos.[4]

Although final definitive rulings on the challenges to the CENACE Resolution and the SENER Policy were not expected to be issued until sometime in 2021, on October 23, 2020 a federal judge issued a final ruling on the amparo claim filed by two privately-owned companies against the CENACE Resolution.[5] The ruling nullifies the CENACE Resolution not only with respect to the companies that filed the amparo, but also on a general basis (efectos generales),[6] and it requires CENACE to notify market participants that the CENACE Resolution is no longer in force. Just one week later, on October 30, 2020, the same federal judge issued a similar ruling on the amparo claim filed against the SENER Policy by another privately-owned company, nullifying the SENER Policy nationwide and requiring SENER to notify market participants that the SENER Policy has been struck down.[7] Shortly thereafter, on November 19, 2020, the same federal judge issued yet another similar ruling—this time on an amparo claim submitted by Greenpeace México—that declared both the SENER Policy and the CENACE Resolution nullified on a general basis (efectos generales).[8] Although definitive in nature, these judicial rulings are still subject to further judicial review, as both SENER and CENACE have filed review petitions (amparo en revisión) challenging them.[9]

Each such review petition will ultimately be resolved by a superior federal court (Tribunales Colegiados de Circuito) and the resulting rulings will be considered final and non-appealable judgments that may reaffirm the underlying judgment in the amparo proceeding or remand the matter to the lower court for de novo review.[10] On February 3, 2021, the Mexican Supreme Court also issued a final ruling on the constitutional claim filed by the Federal Economic Competition Commission (Comisión Federal de Competencia Económica—COFECE) against the SENER Policy, striking down most of its provisions. The Supreme Court stated that though SENER has legal authority to make energy policy, those policies may not contradict or override other existing constitutional principles.[11]

Further, after publication of Chapter 2, the Program for the Energy Sector 2020–2024, which was issued by SENER on July 8, 2020 (the “PROSENER”),[12] joined the growing list of energy-related governmental actions subject to nationwide judicial suspension. This nationwide injunction resulted from an amparo filed—again—by Greenpeace México, who argued that the PROSENER fails to comply with the clean energy goals provided under the existing Mexican legal framework and international commitments.[13]

Despite the setbacks it has faced in the Mexican courts with respect to these resolutions and policies, the AMLO Administration has continued to pursue the policy goals set out in the Wish List[14] and the CFE Agenda[15] via other means. Shortly after the publication of Chapter 2, in early August 2020, a memorandum dated July 22, 2020 and attributed to AMLO leaked to the press (the “AMLO Memo”).[16] Though not officially confirmed by any government source, the AMLO Memo is consistent with the Wish List and the CFE Agenda, and has been widely accepted as authentic.[17] The AMLO Memo initially appeared to be a blueprint for actions of the AMLO Administration in the energy sector, and time has confirmed this to be the case.[18]

The AMLO Memo begins by describing the energy sector that the AMLO Administration inherited as a “neoliberal” framework designed to transfer public entities into private hands and rob Mexicans of their oil and energy resources.[19] This language is consistent with prior public statements made by AMLO and the AMLO Administration[20] and aligns with the long-held and culturally-ingrained view, inculcated over time in the education of all Mexicans, that Mexico’s sovereignty lies in its oil and energy resources and that such resources must be owned by, and defended for the benefit of, the country. This Mexican trope, so to speak, evokes a time when the government structured, monitored, owned, directed and controlled the major components of, and the policies guiding, the Mexican economy.

The AMLO Memo goes on to enumerate 17 objectives designed to fortify the state-owned enterprises CFE and Pemex. Among others, the list includes the following, each of which would undoubtedly disrupt private investment in the Mexican energy sector: (i) CFE and Pemex should recognize existing contracts signed by prior governments to the extent they were not awarded on the basis of fraud against public companies and the nation, (ii) demand for electricity should be supplied through the national electric grid on the basis of the following dispatch order: first, energy produced by CFE’s hydroelectric plants; second, energy generated by CFE’s other plants (regardless of technology); third, solar and wind energy; and, finally, energy from private combined cycle plants, (iii) permits or concessions to private parties in the energy sector should not be granted due to excess petroleum and electricity supply in the medium term and long term, and (iv) private investment can continue to the extent it involves actions that are complementary and not adverse to the national interest. As part of this last statement, the AMLO Memo further specifies that not more than 20 percent of petroleum reserves should be in the hands of private enterprise and not more than 46 percent of national energy consumption should be generated by privately-owned power plants (whether such ownership is domestic or foreign). Thus, the policy goals previously set out in the Wish List and the CFE Agenda have been pegged to hard number goals. The combination of the proposed 46 percent aggregate market share cap and the freeze on new energy generation permits, if pursued, would be particularly detrimental to new private development of power plants in Mexico considering that, as of December 2019, private companies accounted for approximately 44 percent of energy generated in Mexico.[21]

The objectives set out in clauses (i) and (iv) in the preceding paragraph indicate a willingness to respect existing contracts with private power generators only to the extent that the AMLO Administration deems doing so convenient with respect to its overarching goal of realigning the energy sector in favor of CFE and Pemex. The objective in clause (ii) above provides a clear pecking order for the dispatch priority of energy, running counter to existing Mexican law and international best practices based on merit and marginal cost, which requires the most economic energy to be dispatched first.[22] Finally, the objective in clause (iii) also appears to contradict existing Mexican law by freezing CRE’s authority to grant generation permits to private power producers based on vague claims of oversupply of energy and oil, which would result in disenfranchisement of private investment in the sector.[23]

The AMLO Memo closes by stating that the governmental entities created during the neoliberal period (namely, COFECE and CRE, among others) must evolve with Mexico’s new economic and energy policy and join forces with CFE, Pemex and SENER to safeguard and rescue the Mexican petroleum and electricity industries. Indeed, as of the date of this note, the tagline displayed just under the name Pemex on the Pemex website is “To the rescue of sovereignty.”[24] The AMLO Memo requests all relevant regulators to assess the likelihood of achieving the objectives described therein under the existing legal framework and, alternatively, whether the objectives require a new legislative energy reform, which the AMLO Administration is willing to pursue if necessary.[25]

Since the AMLO Memo leaked, no public statement has officially acknowledged its existence. However, some actions taken by the AMLO Administration indicate that the AMLO Memo has been shaping regulatory policy. For example, early signs of future dispatch preference for CFE were announced by Manuel Bartlett, CFE’s chief executive officer, who mentioned that a new management plan for CFE’s hydroelectric power plants is being prepared, and that it will include dispatch preferences for CFE’s hydropower over any other power generation facility.[26] Though it is unclear how this dispatch preference would work (as the relevant document has not been published), Mr. Bartlett emphasized that energy generated from CFE’s hydroelectric power facilities “will have preference over privately-owned generation facilities.”[27] In line with the above actions—and in response to a massive blackout on December 28, 2020 resulting in the loss of power to more than 10 million users for two hours—CFE predictably accused intermittent renewable power as the culprit. Mr. Bartlett publicly urged CENACE to curtail renewable dispatch as needed to prevent future blackouts.[28] These statements were highly controversial; in particular because CFE initially blamed a wildfire in the State of Tamaulipas, allegations that were discovered to have been made on the basis of false documentation.[29] Shortly after, the State of Tamaulipas submitted a related criminal complaint against CFE.[30]

In addition to the AMLO Memo, the AMLO Administration has continued to pursue other regulatory actions relating to the Wish List. For example, on October 7, 2020, the CRE issued a resolution that severely limits legacy permit holders’ ability to include new offtakers under the scope of their existing power generation permits,[31] reflecting one of CFE’s objectives in the Wish List. Other actions taken include the issuance of official instructions (oficios) dated August 18, 2020, and September 31 [sic], 2020 by CRE’s Executive Officer (Secretario Ejecutivo) instructing the Head of the Power Unit (Jefe de la Unidad de Electricidad) not to authorize any amendments to existing permits, despite its legally delegated authority to do so.[32] According to the Executive Officer’s instructions, such amendments may now only be authorized by CRE’s Board of Commissioners. The instructions also required the Head of the Power Unit to disregard the existence of certain regulations governing amendments to existing permits due to potential future modification of those regulations.[33] The de facto result is likely to be a freeze or significant deceleration on authorization of amendments to existing power generation permits, bringing to fruition yet another CFE objective on the Wish List.[34]

These actions are similar to steps taken in favor of Pemex in late April 2020, when an email allegedly sent by CRE’s Chief Officer to other public servants at CRE demanded them to cease authorizing any amendments to existing refined products retail permits that were not operating under the Pemex brand (i.e., non-Pemex gas stations). Although the email has not been confirmed as official—it was leaked to the press—several permits were actually delayed shortly thereafter[35] and, in a COFECE opinion issued an July 13, 2020 in respect of the gasoline retail market, COFECE noted that CRE had reported more than 229 pending amendment requests in connection with non-Pemex gas stations that had not been addressed, citing no justification for such delays in processing.[36]

On the legislative front and in line with the AMLO Administration’s prior efforts to hamstring Mexico’s independent regulatory bodies, on January 7, 2021, AMLO announced that he had requested that his cabinet draft a new bill to eliminate autonomous regulatory entities, as he considers them to be an unnecessary expenditure for the Mexican public. Although the identity of the bodies to be dissolved is uncertain, it is possible that energy regulators or their authority will be a key target of such proposed new bill.[37] As of the date of this note, this proposed new bill has not yet been presented to the Mexican congress.

Further carrying out the objectives of the AMLO Memo, on January 29, 2021 AMLO submitted the AMLO Energy Bill to the Mexican congress to amend the Electricity Industry Law (Ley de la Industria Eléctrica—LIE) to, among others: (i) modify the dispatch order of power plants to favor CFE in the same dispatch order as set out in the AMLO Memo; (ii) allow legacy power plants (i.e., those operating before the Energy Reform) to receive clean energy certificates (certificados de energía limpia—CELs) for power generated; (iii) allow CFE to purchase power directly from market participants and not exclusively from public energy bids; (iv) allow CRE to terminate certain existing legacy self-supply permits; and (v) allow CFE to renegotiate or terminate existing power purchase agreements executed with independent power producers for certain legacy projects.[38] The AMLO Energy Bill was submitted on a preferential treatment track, meaning that it would be discussed and voted on by the House of Representatives (Cámara de Diputados) within 30 days after its submission.[39] However, several market participants and COFECE have already expressed their concerns that many of the provisions in the AMLO Energy Bill are unconstitutional under the existing legal framework. AMLO has rejected such allegations arguing that the AMLO Energy Bill is necessary to “save” CFE and that it does not contradict Mexico’s international trade commitments, including the United States–Mexico–Canada Agreement (USMCA).[40] Meanwhile, the U.S. Chamber of Commerce has publicly stated that the proposed reform “would directly contravene Mexico’s commitments under the [USMCA]” and has urged AMLO to withdraw it.[41] Previously, AMLO had targeted renewables and natural gas transportation services agreements to which CFE was party (which were successfully renegotiated in part early on in his administration). With the AMLO Energy Bill, certain legacy 25-year term power purchase agreements that were tendered prior to 2013 to independent power producers are now prime targets. Those agreements contained a variety of protections for scenarios where CFE defaulted in payment and termination occurs due to political reasons (ranging from change of control to expropriation or seizure) and include a CFE buy-out obligation in the event of an early termination attributable to CFE or the Mexican government. These new provisions of law (if and when enacted) lay the foundation for something more far-reaching than the prior focus on the early termination of the contract or the renegotiation thereof (as occurred with the natural gas services agreements): they set the stage for challenging the validity of these agreements on the basis of “fraud,” allowing for such contracts to be declared null and void for purposes of Mexican law. In so doing, the contractual buy-out provisions will be lifeless. Similarly, the AMLO Energy Bill proposes to provide CRE with the power to terminate the generation permits of self-supply (autoabastecimiento) legacy projects on the basis that the final users are not “true affiliates” of the generator. This could have a devastating impact on many of the projects that were developed and financed under the self-supply regime and will further curtail any growth potential originally envisaged under the Energy Reform.

On February 23, 2021, the House of Representatives (Cámara de Diputados) expeditiously (in 17 hours, without the benefit of expert testimony of any kind, and despite 412 reservations made to the text of the bill) discussed and approved the AMLO Energy Bill in its original form, following its approval by the Permanent Commission (Comisión Permanente).[42] The AMLO Energy Bill will now be delivered to the Senate for review and a vote within 30 days of receipt and, if (and given AMLO’s Morena party majority in such legislative body, when) approved, will inevitably lead to what can only be described as a landslide of amparo proceedings and investment arbitration filings.

Even prior to the push to enact the AMLO Energy Bill, the AMLO Administration’s attempts to erode the existing energy regulatory framework factored into Mexico’s significant fall in several investment rankings, including Bloomberg NEF’s Climatescope, where Mexico dropped from eighth place in 2018 all the way to 51st place in 2020 in the ranking of the most attractive emerging markets for clean energy investments.[43] The Departments of State, Energy and Commerce of the United States issued a joint letter dated January 11, 2021 addressed to their Mexican counterparts to urge the Mexican government to live up to its commitments under the USMCA. In the letter, the signatories noted that “recent regulatory actions by the Mexican government have created significant uncertainty about Mexico’s regulatory processes, especially regarding the energy sector, and have damaged Mexico’s overall investment climate.”[44] Further, the Mexican think tank México Eválua estimates that, if enacted, the AMLO Energy Bill will not only result in increased polluting emissions, but also—contrary to statements made by the AMLO Administration—will require the government to raise electricity rates or spend more on residential electric subsidies (which were already approximately $3.7 billion in 2020).[45]

Despite the uncertainty of the regulations applicable to the energy sector, Mexico’s need for new energy infrastructure has continued to grow. For instance, CFE recently announced its business plan for 2021–2025, which includes the development of more than 4,347MW—mostly through combined cycle facilities—amounting to a total investment of US$3.1 billion.[46] Also, CFE further announced that it is analyzing a investment of US$600 million for the development of 500MW of renewable energy power plants.[47] This potential expansion of CFE’s renewable power portfolio took the market by surprise, given that, as noted above and in Chapter 1 and Chapter 2, Mr. Bartlett has previously strongly criticized the intermittency and reliability of renewables projects. It may also further undermine the AMLO Administration’s stated justifications for actions taken previously that are harmful to private renewable energy companies and expose those actions more directly to claims that they are indictments on private investment.

The developments since our publication of Chapter 1 and Chapter 2, including the leak of the AMLO Memo, the introduction of the AMLO Energy Bill and the continued pursuit of the other objectives set out in the Wish List and the CFE Agenda, have lifted the curtain on the AMLO Administration’s goal of realigning the Mexican energy sector in favor of the state-owned CFE and Pemex. While the course that the AMLO Administration has charted has faced setbacks due to continuous and consistent legal challenges from private investors and other stakeholders, all of which have been well received by Mexican courts at all levels, the AMLO Administration has proven undeterred in the pursuit of this sweeping policy objective by all means necessary or available. With the stakes now more clearly, openly and publicly defined, the questions remain whether the Mexican judicial system will permit the unwinding of the existing legislation despite the Constitutional issues it raises, and whether the AMLO Administration’s attempt to more permanently tip the scales in favor of Mexican state-owned companies through a new legislative framework will succeed. Further, this begs the question, if these actions are not successful, will there be more?

Special thanks to counsel Gabriel Salinas (Houston-Private Equity) and visiting attorney Pedro Lladó for their valuable assistance with this note.

Footnotes

[1] The Resolution to Guarantee the Efficiency, Quality, Reliability, Continuity and Stability of the National Electrical Grid of Mexico during the SARS-CoV2 Virus (COVID-19) Epidemic [sic] (the “CENACE Resolution”), in the original Spanish, the “Acuerdo para garantizar la eficiencia, calidad, confiabilidad, continuidad y seguridad del Sistema Eléctrico Nacional, con motivo del reconocimiento de la epidemia de enfermedad por el virus SARS-CoV2 (COVID-19),” CENACE website, April 29,2020. For further analysis of the CENACE Resolution, please see Chapter 1 and Chapter 2.
[2] The Policy on Reliability, Stability, Continuity and Quality in the National Electric Grid issued by the Ministry of Energy (Secretaría de Energía-SENER) (the “SENER Policy”), in the original Spanish, the “Acuerdo por el que se emite la Política de Confiabilidad, Seguridad, Continuidad y Calidad en el Sistema Eléctrico Nacional,” Official Gazette website, May 15, 2020. For further analysis of the SENER Policy, please see Chapter 1 and Chapter 2.
[3] The resolutions amending transmission charges for legacy renewable, cogeneration and conventional power plants (the “CRE Resolutions”), in the original Spanish, the “Resolución de la Comisión Reguladora de Energía por la que aprueba los procedimientos para determinar las variables económicas requeridas para el cálculo de los cargos por servicios de transmisión a tensiones mayores o iguales a 69 kv, que aplicará CFE Intermediación de Contratos Legados, S. A. de C. V., a los titulares de los Contratos de Interconexión Legados con Centrales de Generación de Energía Eléctrica con fuente de energía convencional, conforme a lo establecido en la Resolución RES/083/98, su modificación emitida mediante la Resolución RES/254/99 y su aclaración emitida a través de la Res/146/2001,” and “Resolución por la que la Comisión Reguladora de Energía establece un criterio transitorio de estimación de registros de medición cinco-minutal de energía eléctrica para los Contratos de Interconexión Legados, a fin de que el transportista y el distribuidor estén en condiciones de proporcionar información en los casos en que tales registros no estén disponibles,” CRE website, May 28, 2020. For further analysis of the CRE Resolutions, please see Chapter 2.
[4] Please see Chapter 1 and Chapter 2 for further detail regarding, and discussion of, these claims.
[5] The two relevant companies are Desarrollos Eólicos Mexicanos de Oaxaca 1, S.A.P.I. de C.V. and Desarrollos Eólicos Mexicanos de Oaxaca 2, S.A.P.I de C.V. “Juez federal elimina ‘freno’ a empresas de energías renovables,” EL FINANCIERO, Oct.26, 2020.
[6] Though the authority of the court to pronounce the general effects of its resolution has been questioned, we note that the resolution of the constitutional challenge has resulted in the general effectiveness of the declaration of unconstitutionality.
[7] The relevant company is EGP Magdalena Solar S.A de C.V. “Dan otro revés a Sener en materia de renovables,” ENERGIA A DEBATE, Nov. 4, 2020.
[8] Karol Garcia “Juez otorga amparo contra política de Sener que restringe renovables,” EL ECONOMISTA, Nov 22, 2020
[9] “Status of the Review Petition filed by SENER under the Amparo 164/2020 filed by Magdalena Solar S.A. de C.V. against the Sener Policy,” and “Status of the Review Petition filed by CENACE under the Amparo 128/2020 filed by Desarrollo Eólicos Mexicanos De Oaxaca 2 S.A.P.I de C.V. against the CENACE Resolution,” Poder Judicial Virtual
[10].Article 86 et. seq. of the Ley de Amparo.
[11] Arturo Solis “Así desarmó la Suprema Corte la política de Nahle contra las energías renovables,” FORBES MEXICO, Feb 4, 2021.
[12] In the original Spanish, the “Programa Sectorial de Energía 2020-2024,” Official Gazette website, July 08, 2020.
[13] “Juez suspende de forma indefinida el programa energético impulsado por el gobierno federal,” LATINUS, Sept. 22,2020.
[14] The “pliego petitorio” or “wish list” was attributed to CFE and leaked to the public late last year (referred to herein as the “Wish List”). It sets out a policy agenda that aims to empower CFE in the Mexican energy sector and afford it advantages vis-à-vis private wind and solar power producers. “Empresas de energía renovable deberían pagar parte del costo de la red: Bartlett,” LATINUS, May 22, 2020. “CRE incrementa las tarifas a centrales de energía renovable,” LATINUS, May 28, 2020. For additional discussion of the Wish List, please see Chapter 1 and Chapter 2.
[15] A power point presentation attributed to CFE that leaked to the press in early June (the “CFE Agenda”). Edgar Sigler, “CFE toma las riendas y se da un año para ganar su batalla contra las renovables,” EXPANSIÓN, June 09, 2020. For additional discussion of the CFE Agenda, please see Chapter 2.
[16] In the original Spanish, the “Memorándum de Andrés Manuel López Obrador, Presidente de México a Servidores Públicos e Integrantes de los Órganos Reguladores del Sector Energético,” ENERGIAHOY.
[17] Verónica Malo “El Memo, AMLO y el sector energético,” SDPNOTICIAS, Aug. 05, 2020.
[18] Furthermore, some sources note that AMLO held at least two in-person meetings with commissioners of the CRE and National Hydrocarbons Commission (Comisión Nacional de Hidrocarburos-CNH) to discuss the AMLO Memo and its objectives. “El Presidente y los Reguladores Acuerdan favorecer a Pemex y CFE,” EXPANSION.
[19] Id.
[20] Andres López, “Reforma Energética,” SITIO OFICIAL DE ANDRÉS MANUEL LÓPEZ OBRADOR, Nov. 12, 2015.
[21] “Se protegerá a CFE como empresa estratégica, sin que sea un monopolio: AMLO,” ANIMAL POLITICO, Dec. 22, 2019.
[22] Article 101 of the Ley de la Industria Eléctrica
[23] Article 130 of the Ley de la Industria Eléctrica
[24] In the original Spanish, “Por el rescate de la soberanía,” Pemex website.
[25] In the original Spanish, the “Memorándum de Andrés Manuel López Obrador, Presidente de México a Servidores Públicos e Integrantes de los Órganos Reguladores del Sector Energético,” ENERGIAHOY.
[26] “Despacho de hidroeléctricas de CFE tendrá preferencia sobre privados,” ENERGY21, Oct. 20,2020.
[27] Id.
[28] Cristobal Riego “Mexico trade group lashes out at CFE’s attempt to limit renewable generation,” BNAMERICAS, Jan 7. 2021.
[29] CFE relied on allegedly falsified documentation in referring to the wildfire, as local authorities from the State of Tamaulipas claimed that the signatures on the documents presented by CFE were falsified. The falsification allegations by the government of Tamaulipas resulted in CFE acknowledging that the documents were forged. Cas Biekman “CFE Asks to Reduce Renewables to Ensure Reliability,” MEXICO BUSINESS. Jan 6, 2021.
[30] Mathieu Tourliere “Tamaulipas presenta denuncia contra CFE por falsificación de documentos para justificar apagón” PROCESO, Jan 3, 2021.
[31] In the original Spanish, the “Resolución de la Comisión Reguladora de Energía por la que se modifican las Disposiciones administrativas de carácter general que establecen los términos para solicitar la autorización para la modificación o transferencia de permisos de generación de energía eléctrica o suministro eléctrico, contenidas en la resolución número RES/390/2017,” Official Gazette website, Oct. 7, 2020.
[32] Yoshua Ordaz “CRE centraliza otorgamiento de permisos; cambio puede alentar procesos: analistas,” MILENIO, Oct. 13, 2020. See also Comisión Reguladora de Energía “Memorandum SE/198/2020,” Sept. 31, 2020 [sic].
[33] Id.
[34] One of the drivers of the policy shift at the CRE is also likely personnel based. Early in his presidency (and even before then), AMLO openly criticized the performance of the existing commissioners—especially the Chief Commissioner (Comisionado Presidente)—causing many of the then-Commissioners to resign from their positions within a few months of AMLO taking office. Jannet López “AMLO acusa a presidente de la CRE de “conflicto de interés,” MILENIO, Feb. 15, 2019. As a result, six out of the total of seven current Commissioners were appointed by the AMLO Administration, resulting in a Board of Commissioners controlled by AMLO appointees. “Conoce a los comisionados de la CRE designados por AMLO,” MILENIO, April 4, 2019.
[35] “CRE analiza detener permisos para estaciones de servicio que no sean Pemex,” MILENIO, April 27, 2020.
[36] “La aplicación de la regulación en los mercados de gasolina debe incentivar la competencia con el fin de reducir su precio final al público: COFECE,”COFECE July 13, 2020.
[37] Cristobal Riego “AMLO’s crackdown on autonomous watchdogs comes under fire,” BNAMERICAS, Jan 8, 2021.
[38] “Recibe Congreso iniciativa preferente del Ejecutivo Federal para reformar la Ley de la Industria Eléctrica,” MESA DIRECTIVA CÁMARA DE DIPUTADOS, Feb 2, 2021.
[39] Article 71 of the Constitución Política de los Estados Unidos Mexicanos.
[40] “AMLO defiende reforma a la ley eléctrica; dice que no viola el T-MEC,” LATINUS, Feb 9, 2021.
[41] “Climatescope 2020,” BloombergNEF.
[42] Enrique Méndez et al. “Tras 17 horas de discusión, aprueba la Cámara reforma eléctrica.” LA JORNADA, Feb. 24, 2021.
[43] Kelsey Tamborrino “Trump keeps up Mexico energy dispute,” POLITICO, Jan 15, 2021.
[44] “Boletin de Prensa CFE-BP-177/20vf,” Comisión Federal de Electricidad Dec. 8, 2020.
[45] Anthony Harrup and Juan Montes, “Mexican Lawmakers Pass Bill to Favor State Power Utility,” https://www.wsj.com/articles/mexicos-lower-house-of-congress-passes-bill-that-favors-state-electric-company-11614125696, WALL STREET JOURNAL. Feb. 23, 2021.
[46] “U.S. Chamber Warns Proposed Changes to Mexico’s Electrical Industry Law Could Create a Monopoly and Violate USMCA Commitments,” U.S CHAMBER OF COMMERCE, Feb. 5, 2021.
[47] Cristobal Riego “Mexico’s CFE studies 500MW renewable plan in policy about-face,” BNAMERICAS, Dec. 14, 2020.

Authors and Contributors

Alexandro M. Padrés

Partner

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Robert O’Leary

Associate

Project Development and Finance

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Industries

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