Electric cooperatives (ECs) have the call to invoke the coronavirus disease-2019 (Covid-19) pandemic as a force majeure in case they were not able to fully use their contracted capacity during the enhanced community quarantine (ECQ).
The Energy Regulatory Commission said such option lies with the ECs and not with the commission, since force majeure is a provision in power supply agreements (PSAs) that can only be invoked by the parties involved.
The ERC also said the same goes with any plea for any adjustment in the other fixed costs of the generation charge as stated in the PSAs, such as capital recovery fee (CRF) and minimum energy off-take (MEOT) charge.
Force majeure refers to unexpected and unforeseeable events. As part of a contract, they legally excuse the parties affected from performing an obligation.
In the case of ECs, it is up to them to decide if the pandemic is considered as a force majeure.
The Philreca Partylist and the National Association of General Managers of Electric Cooperative (Nagmec) earlier wrote the ERC to issue an advisory for generation companies to consider the pandemic as a force majeure and allow the adjustment of fees the ECs pay for their contracted capacity and other fixed charges since many of them were unable to use such capacity at 100 percent.
However, Agnes Devanadera, ERC chair and chief executive officer, said the conditions that allow ECs to invoke force majeure are defined in the PSA and the ERC has no legal personality to come in as a party and state that the pandemic is a force majeure.
“Whether or not to invoke the force majeure provision is a decision of the parties based on the specific provision of each power supply agreement,” Devanadera told Philreca Rep. Presley de Jesus and Nagmec President Allan Laniba.
The ERC added it could not also advise power suppliers to lower the CRF and MEOT charged by generators on distribution utilities since the move will be unwarranted.
In similarly denying Philreca and Nagmec’s request of adjustments in the MEOT, the commission said, “While PSAs are subject to ERC’s approval, its character as a consensual contract does not cease. In this regard, the decision to discuss any possible amendment to the MEOT and the contracted capacity provisions in the PSA belongs to the parties of the contract. Hence, the initiative to adjust the MEOT, which ultimately leads to an amendment of the original PSA, must come from the parties to the PSA, subject to approval by ERC.”
Explaining its decision, the ERC said that the ECQ did not affect all ECs similarly. “While some experienced decrease in demand, there are some that experienced an increase in demand due to the fact that most of their customers are residential customers,” it said.
The commission said the varying effects of the ECQ across ECs make it imperative for them to make their own careful assessment of the impact of the ECQ on their operations taking into account the situation of their distribution system, load profile, economic profile of their franchise areas, and other peculiarities that are unique to each EC.
“A universal advisory allowing ECs to invoke the force majeure provision, adjust approved CRF, and reduce the MEOT or contracted capacity will not address these different situations, and hence, not applicable to all ECs nationwide,” the ERC said. – Delmar Cariño