Supreme Court guidance sought on power supply competition

THE Energy Regulatory Commission (ERC) is planning to ask the Supreme Court for guidance on how the power industry should move after rules governing retail competition and open access (RCOA) was put on hold and left electricity users and providers unsure about the legality of their transactions.

“We’re drafting something to seek guidance from the Supreme Court,” Floresinda B. Digal, ERC spokesperson, told reporters.

She declined to give details, but said the commission would be seeking a “way forward” for the industry after the high court’s issuance of a temporary restraining order (TRO) that blocked certain provisions of RCOA resolutions and circulars issued by the ERC and the Department of Energy (DoE).

Ms. Digal said the ERC’s motion for guidance should be cleared for release in two weeks after the regulator coordinated its move with other concerned entities.

“It’s not good for release yet. We need to wait for two weeks, until ma- coordinate sa lahat (until the motion is coordinated to all),” she said, but declining to disclose whether the ERC heads will be filing the motion in tandem with the Energy department.

Rules governing RCOA are meant to give power users whose consumption has reached a pre-set threshold the “power of choice” to buy electricity from ERC-licensed retail electricity suppliers (RES).

That power was questioned as the rules made mandatory the switch from being a captive customer of a distribution utility to one that can choose to forge a power supply contract with a licensed RES.

The commission’s move comes after Senator Sherwin T. Gatchalian, chairman of the Senate committee on energy, said earlier this month that the Joint Congressional Power Commission (JCPC) would be coming up with a legal opinion on RCOA.

JCPC, a legislative panel monitoring the implementation of the Electric Power Industry Reform Act of 2001 (EPIRA), is made up of members from the Senate and the House of Representatives.

Mr. Gatchalian said JCPC was in the process of doing “due diligence” leading to a legal opinion, which he said could be used by policy makers in arguing their case before the high tribunal.

Republic Act No. 9136 or EPIRA, the law that restructured the energy industry and privatized the government’s power generation assets, called for the passage of rules on retail competition.

Regulations issued by the ERC and DoE have been on hold after a number of users sought and secured a TRO from the Supreme Court earlier this year.

“We’re now in a very bad position or, from consumer’s standpoint, we’re in a very negative position,” Mr. Gatchalian has said.

The Supreme Court issued the TRO days before Feb. 26, 2017, when the switch was to become mandatory for consumers with an average monthly consumption of at least one megawatt.

It also put on hold the lowering of the threshold on June 26, 2017, which would have made the switch mandatory for those consuming 750-999 kilowatts.

Retail electricity suppliers say they offer electricity at a much lower rate than that offered by distribution utilities.—