1 ALTERNATIVE ENERGY DEVELOPMENT IN LATIN AMERICA International Mining and Oil & Gas Law, Development and Investment Rio de Janeiro, Brazil. April 2011 Rocky Mountain Mineral Law Foundation International Institute on International Mineral Law Ali Shakhtur S. Attorney at Law, Chile MSc in Management, Universidad Alcalá de Henares LLM in Commercial and Corporate Law, London School of Economics Alvaro Hercolani B. Attorney at Law Master in Communitarian Law, Universidad Complutense
2 1. Introduction Alternative energy simply means energy that is produced from sources other than our primary energy supply: fossil fuels. Coal, oil and natural gas are the three kinds of fossil fuels that we have mostly depended on for our energy needs, from home heating and electricity to fuel for our automobiles and mass transportation. The problem is, fossil fuels are non-renewable 1. The importance of renewable energy is indisputable. Developed countries and even oil & gas based economies are focusing and evidencing its importance. An example of this was the commitment reached by the G-20 leaders in 2009 (Pittsburgh Meeting) to rationalize and phase out over the medium term inefficient fossil-fuel subsidies that encourage wasteful consumption (these subsidies totalized US$ 312 billion in 2009) 2. Well known is also the commitment declared by the European Union to reach a 100 percent renewable energy supply by In Latin America, renewable energy use raises to an impressive 30 percent of the total primary energy supply in comparison with the 6 percent share of renewables in the OECD countries (and the less than 1 percent in Middle East). But the numbers are not as good as they seem as generation is mostly dominated by large hydro generation plants and bio-fuel: the first heavily depending on the changing water levels (and particularly affected by droughts due to climate changes) and the second highly criticized due to its failure in reducing greenhouse gases. Latin America is in a state of continuing progress in the investment and use of renewable energy. From a very timid start we can now see various renewable projects which would soon provide more sources of energy to our countries. The technology and know-how has also been imported to Latin America and we can now see agreements with more advanced countries (in this particular field) like the one entered into between Portugal and Venezuela and the United Kingdom with Cuba. However, the market of alternative energies is far from perfection. There are a number of barriers and difficulties to overcome and therefore there is still work to be done. In this context, we will analyze other realities and some examples and cases in Latin American countries. We will finally, examine the coexistence between renewable projects, mining and 1 Fossils Fuels vs. Renewable Energy Resources: Energy's Future Today by Eric Mclamb. 2 World Energy Outlook International Energy Agency EIA.
3 hydrocarbons where their relationship is sometimes pacific and collaborative and -in some occasions- hostile and conflicting. 2. The Use Alternative Energies and Growth of Energy Requirements Worldwide According to a recent study prepared by the US Energy Information Administration 3, the use of all energy sources will raise importantly in the short and medium term ( ). It is also anticipated that the world oil prices will remain relatively high through most of the projection period as liquid fuels and other petroleum will continue to be the world's slowest-growing sources of energy. Accordingly, the expected consumption of liquid hydrocarbons will increase at an average annual rate of 0.9 percent from 2007 to 2035, whereas total energy demand should increase by 1.4 percent per year. The above must be contrasted to the case of renewables, which are the fastest-growing source of world energy, with consumption increasing by 2.6 percent per year. Today, it is estimated that fossil fuels and nuclear constitute 93% of the world energy resources, whilst renewables amount just to 7%. Consequently, the projected oil prices, as well as the widespread concern about the environmental impact of fossil fuel use and the increasingly strong government incentives to enhance the use of renewable energy in many countries around the world, improve the prospects for renewable energy sources worldwide in the outlook. If we add to this the phase-out of subsidies for fossil sources in Europe and some states in the U.S., then the future is quite promising for renewables. As we can see in the figure below (which we believe rather conservative), by 2035 renewable will double nuclear and reach an important level of consumption worldwide. As to hydrocarbon source fuels, they will continue with the same trend. The point here is that the world demand is growing but increasingly supplied by other sources of energy. Yet, the world challenge for transforming the energy grid from fossils to renewables must overcome many obstacles. 3 International Energy Outlook, July US Energy Information Administration.
4 EIA, International Energy Statistics database (as of November 2009) 3. Barriers, Risks, Incentives and Challenges. As indicated above, renewable projects are still subject to restrictions. The slow adaptation of domestic legal systems to consider real incentives to the development of renewable energies have made things harder than they should have been. Unfortunately, there is a natural inclination to compare these projects as equal to mining and even to oil & gas, where they should be analyzed considering other motives and factors. Moreover, the abundance and progress in the development of resources such as oil, gas and hydro makes their exploitation easier and less costly. Therefore, alternative energy projects are usually much more expensive comparing cost, risk and expected benefit making the existence of public incentives so important for their viability. For example, geothermal power -a resource with an outstanding capacity factor of 85 to 95 percent- requires large exploration expenditures that normally private investors are trying to transfer or at least share with the states or public entities.
5 With the above in mind, we can be sure that the future of renewable hinges critically on strong government support 4. The role of governments is decisive to make alternative energies cost competitive. As to the perspective for renewable energies, according to the studies made by the International Energy Agency (consistent with other available studies), the most significant increase will come from the power generation sector. In effect, it is estimated that by 2035 the electricity generated by renewable will reach approximately 33 percent of the total generation. Such increase will mainly come from hydropower and wind followed by solar which -although increasing rapidly- will only amount to a 2 percent of the total power generation. The growth evidenced by renewable energies in the last decade is mainly due to specific incentives implemented in the European Union (EU) and the United States of America (US). We will see those incentives in very general terms and -with a bit of more detail- in Latin America. The European Union. Europe is definitely leading the renewable energy development. A demonstration of this is the promotion of the use of energy from renewable sources through the adoption of a Directive 5 as part of the Climate & Energy Legislative Package which includes several regulations that re-launched the renewable energy policy in the EU. The Directive not only sets the objective of reaching 20 percent of the EU s energy consumption from renewable energy sources by 2020, but it includes a 20 percent reduction in primary energy use and 20 percent reduction of greenhouse gases compared to 1990 levels. In addition, in all three sectors (electricity, heating-cooling and transport) the EU states are formulating Renewable Energy Action Plans as well as a mandatory share of 10 percent renewable energy source in transport for each such member state. Forecast disclosed by EU member countries indicates that EU could reach and overtake the 20% target by The early implementation of incentives by some EU members has placed some countries in position to generate even more renewable energy than the EU requirements. The two more wide extended incentives are the feed-in tariffs (FIT) and the green certificates which intervene in the electricity generation phase, i.e. the 85% of the 500 MW wind energy installed by 2010 were under feed-in tariffs. FIT system allowed private generators of renewable electricity to be highly compensated for long terms while green certificates encourage the creation of a renewable energy sources market. 4 World Energy Outlook International Energy Agency - EIA. 5 Directive 2009/28/EC Renewable Energy Development Directive, April 2009.
6 The United States of America. Although the systems may vary from one state to another, the most common instrument for boosting renewable energies in the USA are Clean Renewable Energy Bonds (CREBs), Investment Tax Credits (ITC) and Production Tax Credit (PTC) (feed in tariffs have also been adopted recently in some states). CREBs are tax credit bonds with an interest-free finance rate. The entire interest on the bond is paid by the U.S. Treasury in the form of a tax credit. The borrower has five years to spend 95 percent of the proceeds. The tax credit rate is posted daily by the U.S. Treasury. The discount rate is designed to provide for the maximum term equal to produce 50 percent of the face amount of the bond (approximately 11 years). The American Recovery and Reinvestment Act 6, extended PTC and ITC instruments -which have been critical to the growth of the renewable energy sector- to The PTC for wind -as the largest source of renewable energy today- has the greatest impact in the relevant budget. Behind we can find the PTC for incremental hydro, geothermal, municipal solid waste, bio-energy wave and tidal energy. Latin America. Latin America is an aggregation of markets with limited interconnection and diverse growth prospects due to differences in the power generation mix -including varying reliance on hydro- and in economic development, political orientation and wind resources. Wind power -for example- is a relative newcomer to Latin America, with yearly installations greater than 100 MW only in three of the last 10 years. This irregular activity has begun to stabilize thanks to more mature policies, resulting in a more coherent context of growing pipelines, installations and supply 7. An important factor in the development of renewable energies is each country s approach to them. Although governments seem to encourage the investment in new energies, there is an evident lack of adequate regulation. According to a study carried out by IHS Emerging Energy Research, they concluded that -because of this insufficient adequate regulation and inexperience- local developers can hinder industry growth by underestimating costs and creating a nebulous pipeline of noneconomical projects. 6 The Act was enacted by President Obama in February Latin America Warms to Wind, David Appleyard. Renewable Energy World Magazine, September 2010.
7 At the same time, governments intend to implement, control and monitor the investments and development of renewable energy usually by centralizing everything in one or two state departments or agencies (including regulation, organization of tenders, control of investment for applying special benefits and so on). In many cases the centralization has lead to excessive delays which ultimately result in a discouragement for companies wanting to invest, for example, delays in wind power tenders in Argentina and in geothermal power in Chile. Another phenomenon to be considered relates to the rapid economic growth in some developing countries: the necessity of satisfying the dramatic raise in the energy demand has created the urgency of implementing large generation projects capable of satisfying such growing demand. But things are starting to change. Latin American countries such as Brazil, Uruguay, Peru and Panama are making real efforts in receiving more developers for projects. In other countries, tenders for single projects are also generating some competition. Such is the case of Costa Rica, Puerto Rico and Dominican Republic. Accordingly, the challenge today in Latin America is to rightly develop the abundant available renewable energy sources, which vary depending on the geographical features of each country. To have an idea, wind has an important presence in Mexico, Central America and Caribbean countries and also some presence in the southern cone. But the trend may change according to a study 8 which anticipates that Brazil -by will lead in wind energy with 31,6 GW installed, followed by Mexico way behind with 6,6 GW and then Chile. Solar on its part, is more evenly distributed in the region and except for site specific adverse microclimates it is a reliable and predictable resource 9. The small hydroelectric resources have a large potential given the rather exclusive development use of large scale projects that characterized the region in last decades. Geothermal resources are wide present in the Andes related countries and Mexico but still without relevant presence in the grid. Undoubted is the enormous potential of energy available in the ocean for coastal countries but still subject to a large economical and technical gap. 8 Latin America Power Markets and Strategies: Renewable Energy World Magazine Renewable Energy Resources in Latin America. Global Energy Network Institute
8 The case of Mexico. Until recently, the Mexican Constitution banned private development of renewable energy power plants stating that electricity generation for public use was an activity reserved exclusively to public entities. This has now changed due to a new law that regulates renewable energy production for private use, facilitating the injection of this energy in the electricity grid: the Law for the use of Renewable Energy and the Financing of the Energy Transition 10. This regulation substantially improves the legal framework for private investment in renewable energy projects regulating renewable energy electricity generation for purposes other than providing public electricity services. The law states that the use of renewable energy for electricity generation is possible for private use and any excess energy can be sold (always subject to the approval of Mexico s energy regulatory body, the CRE). On the other hand, the large reserves of fossil fuels have obviously conditioned the Mexican electricity grid, which is dominated by combined-cycle power plants. Natural gas turbine technology that fomented the long term supply contracts dominates the generation. The current share of renewables in the generation mix is approximately 2%. At this rate of growth, Mexico will only reach 4.5 percent renewables in the electricity mix by The case of Brazil. Brazil is a leading actor in the environmental area and renewable sources with the best energy matrix among the top economies. In fact, in 2009, 90 percent of the energy generated in Brazil came from renewable sources, primarily hydro (83.7%), biomass (5.9%) and wind (0.3%) 11. The Country s electricity sector is aimed to diversify the national energy matrix away from the historical dependence on large hydropower plants in order to reduce the dependency between energy produced and rainfall level. Few years ago, the hydroelectric power represented about 90 percent of the installed capacity and by 2008 this participation had dropped to a 74 percent due to the construction of power plants based in other sources such as thermoelectric (natural gas and biomass). Brazil advances in the renewable energy sector today are a model for other countries interested in diversifying their energy portfolio being the world leader in renewable energy. Brazil has one of the lowest carbon electricity matrices in the world with nearly three quarters of the country s 10 Ley para el Aprovechamiento de Energías Renovables y el Financiamiento de la Transición Energética. October Empresa de Pesquisa Energética (EPE).
9 total installed capacity of 107 GW coming from hydro sources, both, large and small. Among renewables, ethanol clearly dominates the investment with approximately 70 percent of all new renewable energy projects. The country is supporting its use through a mandatory 25 percent ethanol blend in gasoline and a 5 percent biodiesel mandatory blend. Brazil has been so successful that the Government was able to cut most of the incentives for ethanol as it is already prepared to compete directly with fossil fuels. At the same time, there are also numerous projects in wind, biomass, solar and hydro energy which are being boosted by the Government through the Incentive Program for Alternative Electric Energy Sources (PROINFA) and the regular power generation auctions that are held every year. Strong energy policies, the renewable energy auctions and aid programs should allow Brazil significant growth in wind energy investment and to reach the world s highest biomass and small-hydro power capacities. Potential investment in renewables from 2010 to 2020 is forecasted to reach $67 billion, permitting the installation of 25 GW of renewable energy generating capacity. The case of Argentina. Historically, the oil and natural gas share in the Argentine energy matrix has been dominating. Today, in spite of the increasing demand for oil and natural gas in Argentina -only temporarily eased by the slowdown resulting from the world financial crisis- domestic production of hydrocarbons is decreasing. Since that decline has a direct impact in the energy system, it is inevitable to conclude that the current composition of the Argentine energy matrix, the E&P 12 activities crisis, the global financial crisis and growing environmental issues will pave the road for the development of renewable energies. In this context, Argentina has the potential to become a leading producer of alternative energies. Photovoltaic and geothermal energy could be successfully developed in Argentina. The country is well known for its abundant sunlight and many volcanic sites along The Andes, where hot water and steam could be used to generate electricity. In the regulation side it is worth mentioning that Argentina is one of the few countries in the region that implemented feed-in tariff policies, even 12 Exploration and Production of Oil & Gas.
10 though they are not as generous as the European Union system providing generators an additional US$0.23/kwh for solar photovoltaic installations on top of the regulated electricity price 13. The case of Chile. In Chile, Law introduced -effective from the mandate for the generating companies with more than 200 MW installed to produce at least 5 percent of their energy from renewable sources and, as of 2014, this obligation shall rise 0.5 percent annually until reaching 10 percent by This significant boost should enhance the electricity generated from renewable energy up to MW by Considering the 6 percent expected average growth of Chile, the country will need to pass from its MW installed today to approximately MW in 15 years. The mandated quota is in the right path although insufficient for a country with a strong economy. The current heavy drought in the country has dropped the hydro generation from the regular 60 percent to a worrying 32 percent. The high level of electricity price in Chile -one of the highest in Latin Americahas encouraged investments in renewable energy from diverse sources. Wind energy projects portfolio reached almost 300 MW in the short term while investments in solar energy should reach US$1.300 in the next 10 years taking advantage from the large desert in the North of the country. Although this positive environment for the renewable energy, in parallel large coal power projects have been approved threatening the diversification of the power grid to give room to renewable energy. 4. Interplay Between Alternative Energies and Mining/Oil & Gas Projects As we can observe from the above analysis, there is an important relationship between alternative energy projects on the one side and mining and oil and gas projects on the other. We will first refer to the superficial and operation rights and then to the energy generation point of view. a) The superficial and operation rights: As we can anticipate, we may have two or three different rights in nature covering the same geographic area (usually with interests in different geological depths). For instance the right to install and operate wind 13 Other countries with feed-in-tariffs are Ecuador and Nicaragua. 14 Ley de Fomento de las Energías Renovables No Convencionales, 2008.
11 turbines, or to develop a geothermal power plant in areas where there are already mining exploration operations. At first sight it could seem impracticable, but it is not. We may even have also E&P operations at the same time, and each coexistent right with its relevant accessory rights as the right of way (use) over the area. The above is not just possible but normal and should not cause a conflict per se. Mining, oil & gas and renewable projects may need the use of large extensions of territory and normally they will coexist without problems. In some cases the specific areas of interest (i.e. mining exploitation and geothermal development) may be the same -although the geological horizons are necessarily different- and the possible conflict must be resolved. The exploration phase (superficial works) in most of renewables is usually a not invasive operation carried out in a relatively short period of time. Exploitation development on its part, is essentially fenced with rather small areas of full occupation in comparison with the huge areas usually owned by individuals or communities. In most of our legislations concerning renewable development activities there are only particular provisions for geothermal energy and hydro. In effect, solar power, wind energy, tidal energy, biomass and others are subject to general legislation. There is the need of authorizations from environmental entities and superficial land owners, but there are no rights existing independently as in the case of mining or oil & gas activities where there are rights which are proprietary in nature 15. Having said that, it remains to be analyzed how Latin American countries deal with conflicts specifically in the case of Geothermal Energy. We will briefly refer to the legislation in countries with important geothermal resources and potential: In Argentina, the Geothermal Energy (right to use the endogenous vapor from the earth) is treated in the Mining Code 16 in the same way as mining exploitation and, therefore, as mining right receives the same treatment. Therefore, there is a right, proprietary in nature, over the geothermal concession. In case of conflict with other mining or oil exploration/exploitation rights, the one constituted before should prevail in case they cannot coexist. If the exploitations are compatible, then the last right constituted will bear any additional costs associated with the exploration or exploitation. The case of Mexico is particular as it lacks a comprehensive regulation, but despite this, it ranks in the top five of world geothermal production. The National Waters Law 17 provides that the exploitation or use of vapor or water with a temperature higher than 80 degrees will require a 15 Derecho Real. 16 Código de Minería, texto ordenado por decreto 456/ Ley de Aguas Nacionales, Art 81.
12 Concession if such exploitation can affect a water source (acuífero). In fact, the development has so far been carried out by the state through the Federal Commission of Electricity (CFE). Costa Rica on the other hand, has an older but very basic geothermal regulation with its first geothermal law in All the activities relating to geothermal energy are managed by the Costa Rican Institute of Electricity (ICE) which actually performs the exploration and exploitation activities using foreign specialized companies mainly for the provision of associated services. In this particular case, the major issue is not the conflict with other right holders but the intervention of natural parks. There are no specific provisions dealing with the conflicts between the geothermal activities and mining (oil is not an issue in Costa Rica) but the ICE is entitled to acquire land, exercise rights and do everything needed for the fulfillment of its law mandate. A similar situation we find in El Salvador where the exploitation is only performed by LaGeo, a company controlled by the State through GESAL where ENEL 19 holds less than 40 percent of its shares but performing all the geothermal exploration and exploitation work. As in the case of Costa Rica, is finally the state the one that decides and controls the activities. In the case of Chile, the Geothermal Law 20 provides an administrative action in favor of right owners of mining, oil & gas, land owners and other right holders to -without prejudice to other judicial rights- oppose to a specific request or public tender for geothermal areas. After considering the arguments from interested parties, the Energy Minister will issue a Decree 21 either awarding the area -with or without limitations or special considerations- or rejecting the request or withdrawing the area from the public tender, as the case may be. For coexisting rights, the first constituted prefers the latter. In that case, the right holder (geothermal, mining or hydrocarbons) must bear and incur all the costs associated with the works needed to avoid or repair the damages caused to the first right holder. Finally, a potential conflict that is becoming a highly topical question is the one related with the water rights. This involves not just the landowner/community with the renewable project developer but also the mining and oil & gas project as well. Currently, this issue has been successfully resolved applying a mix of technical and legal principles bearing in mind the different depths of the targets. Normally, the geothermal reservoir is at a depth of 1000 to 2500 meters and a water wells will reach 250 to 300 at the deepest. 18 Ley de ENEL Green Power S.p.A. 20 Ley /2.000 sobre Concesiones de Energía Geotérmica. 21 Decreto Supremo.
13 The situation will be much more challenging between the oil & gas operator and the geothermal one. With similar depth targets the principle of the first right holder will prevail in terms that if the latter affects the previously constituted will have to bear any restriction and/or compensate any damage. b) The generation viewpoint: Although it is not the main topic of this paper, it is worth highlighting the increasing need of renewable energy in mining and even in oil & gas operations. It is a fact that mining and E&P companies have started to invest in renewable energy projects and have also acquired participation in renewable energy companies. In the case of mining, with some frequency projects are located in areas were energy availability becomes an issue. The level of investment to secure the energy needed to explore and then to develop and exploit minerals sometimes render a venture uneconomic thus affecting the materialization of the project. Although legislation encouraging investment in renewable energy is still developing, high levels of investment already justify the study of alternative energy sources. That is the case of geothermal power in Chile, which, if developed, may contribute importantly to the exploitation of minerals in the north part of the country or the wind and solar projects in Argentina and Brazil. Environmental authorities in fact are now requesting studies about feasibility of using renewable energy sources in mining projects. 5. Conclusions The use of alternative energies is clearly increasing and countries are somehow committed to reaching ambitious targets on generation from renewable sources of energy. At the same time we have noticed an incipient and undeveloped level regulation of this type of energies and, therefore, there is still room for encouraging alternative energy investment in Latin America. The timid start has started to change and the level of commitment -and effectiveness of measures- is to be seen in the following years. Although there is still a long way to go, the progress is clear and investment in renewable has sharply increased in recent years. Countries have set more ambitious objectives in laws and now power generation and/or commercialization companies will have to comply and reach levels of electric generation from renewable sources in the upcoming years.
14 With respect to E&P and mining operations we have seen that the countries almost exclusively refer to geothermal energy as it is the only source granted through the awarding of proprietary rights. The rule being, in general, that the first constituted right will prevail over the following conflicting right whether such rights are mining, oil & gas or geothermal. It is clear that the alternative energies are here to stay and their correct development and promotion must be guided by each government. This should be done avoiding excessive centralization and control thus creating an attractive environment for companies to invest in the diversification of the energy matrix in Latin America.