Whoever looks for a connection between what the Constitution says about electricity and the reforms to the Electricity Industry Law (LIE) will undoubtedly be shocked. There is no way to put these wires together without receiving a lethal shock. The legal reason is simple. The constitutional norm, which is the highest, is generous in its breadth to the participation of the private sector. Instead, the secondary law is notably more restrictive in several ways that have been repeated ad nauseam in a variety of media. However, for those who for whatever reason are not yet aware, there they go again: the LIE relegates private companies to fourth or fifth place to inject their electricity into the network; threatens them with terminating their contracts and permits in the absence of a clear procedure before the CRE; it gives financing advantages through the Clean Energy Certificates to the obsolete and polluting power plants of CFE; it empowers CFE to buy electricity by itself and before it in the absence of a competitive bid; in addition to other restrictions that are already much talked about, technical and difficult to explain to the general public. In any case, it seems obvious that all of them disrupt the electrical model embodied in the Constitution.
The latter was not so evident to the Supreme Court justices who, when voting on the bill of the unconstitutionality action filed by the Senate, did not gather the eight votes required to send the law to the guillotine. On the other hand, regarding the constitutional controversies put into action by the Federal Competition Commission (Cofece) and the Executive of the State of Colima, these went straight to the dump. With the exception of a handful of ministers, the message, both to Cofece and to the governor of this state, was “electricity legislation is not up to you.”
All this happened almost at the same time that the Chamber of Deputies voted against the constitutional reform of President López Obrador – or rather, Manuel Bartlett. By not reaching the qualified majority of two thirds of the deputies present, the initiative was rejected. This is how two normative instruments were poorly connected. There is no way that a healthy and functional electrical industry can be conducted through this network of regulations. Below, we will explain in more detail why.
We have already explained that the LIE survived by going through the Supreme Court of the Nation three times. In a parallel lane, days apart, the constitutional reform ran into a wall in Congress, which results in a seriously irregular legal scaffolding. You can enter the pyramid at the base, but one collapses trying to climb up. On the other hand, there are hundreds of companies protected against the LIE, which allows some to advance, while others remain trapped. The protected ones will be able to continue forward, precariously, while the others will simply remain at the bottom as long as they don’t take shelter or the law changes. This is unsustainable architecture.
Beyond the disconnection between the Constitution and the LIE, there is the administrative field, mined for companies. The one that sets foot in the Energy Regulatory Commission (CRE) will surely come out free of charge badly injured by the delay or denial of a vital procedure for its operation. The CRE also makes “surprise” visits to homes, under penalty of arbitrarily fining or revoking permits. Now, with the LIE involuntarily alive and kicking due to the lack of momentum, in one way or another, from the Supreme Court, it is foreseeable that they will take advantage of this current to intensify these assaults.
Finally, there is a very remarkable detail: both the LIE and the Constitutional framework survived due to lack of votes. Neither the Court nor the Congress reached the necessary majorities for something to change, for better or for worse. In the case of the action of unconstitutionality voted by the Court, to invalidate some articles, one or maybe two votes were missing. In other words, in the analysis of that action, the LIE went from “belly bump”. As far as the constitutional reform is concerned, the simple majority had its support, but it failed because it lacked approximately 50 votes. Thus, it could be said that, by one head, the current text won the race.
There is no viable legal system when the opposite poles are connected. On the contrary, he goes into shock, paralyzed until he lights up and burns. And who knows when the electrical industry will rise from its ashes.