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Sustainable Consumption pp 443–462Cite as

Consumer Law, Sustainable Energy Consumption and Mini- and Microgrid Decentralized Generation in Brazil

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Abstract

This chapter analyses the legal framework for mini- and microgrid decentralized generation specified in Brazilian National Agency of Electricity (ANEEL) Normative Resolution (REN) No. 482/2012 and verifies the advantages and disadvantages therein. In this context, the chapter addresses the question of why there are so few mini- and microgrid energy connections in Brazil considering the vast potential of the country’s solar and wind resources. Global frameworks, such as the as UN Sustainable Development Goals (SDGs)—in particular, SDG 7 (Ensure access to affordable, reliable, sustainable and modern energy for all), SDG 12 (Ensure sustainable consumption and production patterns), and SDG 17 (Revitalize the global partnership for sustainable development)—and the UNCTAD Guidelines for Consumer Protection, provide a basis for analysis. The Brazilian Consumer Protection Code (BCPC) has been targeted by proposals to mandate sustainable consumption as a market principle in Brazil, and the chapter will analyse this. It will then assess whether the legal framework in Brazil is fit for promoting growth in sustainable energy generation. The chapter contends that the lack of positive incentives established by the legal framework is an obstacle to increase the adoption of the decentralized system by consumers.

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Notes

  1. 1.

    See Lyster and Bradbrook (2006), p. xxi.

  2. 2.

    See Kapseu et al. (2012), p. 17.

  3. 3.

    Lyotard (1989), and Bauman (1992).

  4. 4.

    See Sarlet and Fensterseifer (2014), p. 102.

  5. 5.

    See Marques (2015).

  6. 6.

    See Fatouros (2008), pp. 367–368.

  7. 7.

    See International Energy Agency (2005), p. 18.

  8. 8.

    Pehnt (2006), pp. 1–18.

  9. 9.

    Brazil. Senate Law No. 281/2012.

  10. 10.

    Morosini and Marceau (2013), pp. 59–92.

  11. 11.

    See UNCTAD (2015), Guidelines 59 and 60.

  12. 12.

    See UNCTAD (2015), Guideline 76 on energy: ‘Member States should promote universal access to clean energy and formulate, maintain or strengthen national policies to improve the supply, distribution and quality of affordable energy to consumers according to their economic circumstances.’

  13. 13.

    See UNCTAD (2015), Guideline 77 on public utilities: ‘Member States should promote universal access to public utilities and formulate, maintain or strengthen national policies to improve rules and statutes dealing with provision of service, consumer information, security deposits and advance payment for service, late payment fees, termination and restoration of service, establishment of payment plans and dispute resolution between consumers and utility service providers, taking into account the needs of vulnerable and disadvantaged consumers.’

  14. 14.

    See United Nations (2016).

  15. 15.

    See United Nations (2015).

  16. 16.

    Energy intensity is measured by the amount of energy required for an activity, whereby the lower the energy used to produce a product, the lower the intensity. Intensity is distinct from energy efficiency, which improves when a certain level of service is provided with reduced quantities of energy inputs or services, in relation to the amount of energy previously foreseen. If there is an improvement in energy efficiency, the intensity will be reduced. But other factors among the four large final consumers (industry, transportation, households and trade) may change the intensity, such as a change in the mode of production of a heavy industry, or a reduction in the quantity produced, which could reduce the intensity without, however, changing efficiency. US Department of Energy (2017).

  17. 17.

    International Energy Agency (2010).

  18. 18.

    See United Nations (2017).

  19. 19.

    Renewable resources can adjust faster by renewing their inventories over a given period, but only if they are economically relevant. However, intervention in these stocks over a period can generate effects (positive or negative) on inventories in subsequent periods, such as fish stocks, other fauna and water reservoirs. Once exhaustible natural resources are consumed, they cannot be renewed. Further, in the event that renewal is so slow that the stock has no economic relevance, these resources are also considered expendable. In this sense, Sweeney (1993), pp. 759–761 has developed the concept of exhaustion based on the following assumptions: ‘(1) the stock decreases over time, whenever the resource is being used, (2) the stock never increases over time, (3) the rate of stock decrease is a monotonically increasing function of the rate of resource use [i.e., the more you use the lower the inventory] and (4) no use is possible without a positive stock.’

  20. 20.

    Gawel et al. (2014), p. 6.

  21. 21.

    International Energy Outlook (2017), p. 80.

  22. 22.

    Baudrillard (2011), pp. 13–120.

  23. 23.

    Bauman (1992), cited in Ritzer (2014), pp. 9–10.

  24. 24.

    Goldblatt (2005), p. 3.

  25. 25.

    Ibid, p. 18.

  26. 26.

    A more in-depth analysis of the discretion (the possibility to choose) of the consumer to pursue sustainable consumption can be verified in the figure in Goldblatt (2005), p. 19 entitled: ‘A depiction of society’s current “discretion continuum” for resource or energy consumption, with future alternative trajectories’.

  27. 27.

    UNCTAD (2015): ‘58. Member States are encouraged to create or strengthen effective regulatory mechanisms for the protection of consumers, including aspects of sustainable consumption.’

  28. 28.

    UNCTAD (2015): ‘62. Member States and other relevant organizations should promote research on consumer behaviour related to environmental damage in order to identify ways to make consumption patterns more sustainable.’

  29. 29.

    The supplier/producer definition is provided by Article 3 of the CPC, which states: ‘The supplier is any natural or legal person, public or private, national or foreign, as well as depersonalized entities, which carry out production, assembly, creation, construction, transformation, import, export, distribution or commercialization of goods or service’s provision’ (Brazil. Federal Law No. 8078/1990).

  30. 30.

    Miragem (2013), p. 171.

  31. 31.

    Brazil. Federal Constitution (1988), Article 175: ‘The Public Power, under the law, directly or under concession or permission, always through public bidding, is responsible for the provision of public services’ (authors’ translation).

  32. 32.

    The concept of public service has been defined by Mello (2014) as follows: ‘Public service is all activity offering material usefulness or comfort to the satisfaction of the community in general, but uniquely fruitful to the administered, which the State assumes as pertinent to its duties and lends itself or even by those who do it, under a regime of public law—therefore, consecrator of prerogatives of supremacy and special restrictions—established in favour of the interests defined as public in the normative system’ (p. 695, authors’ translation).

  33. 33.

    See Shunck (2016), pp. 27–75.

  34. 34.

    Pachauri (2011).

  35. 35.

    On long-term ‘captivity’ contracts, see Marques (2016a), pp. 97–115.

  36. 36.

    Marques and Miragem (2014), p. 116.

  37. 37.

    Miragem (2013), p. 172.

  38. 38.

    Miragem (2004), p. 69.

  39. 39.

    The Guidelines were first adopted by the General Assembly in Resolution 39/248 of 16 April 1985, later expanded by the Economic and Social Council in Resolution 1999/7 of 26 July 1999 and revised and adopted by the General Assembly in Resolution 70/186 of 22 December 2015.

  40. 40.

    UNCTAD (2015).

  41. 41.

    UNCTAD (2015). Clause V, H, 50–62.

  42. 42.

    Brazil. Senate Bill No. 281/2012.

  43. 43.

    Marques (2016b), pp. 419–425.

  44. 44.

    Ibid, pp. 419–425.

  45. 45.

    Marques et al. (2013), p. 78.

  46. 46.

    UNCTAD (2015), p. 24.

  47. 47.

    Agência Nacional de Energia Elétrica (2012).

  48. 48.

    Agência Nacional de Energia Elétrica (2012). Article 2, I and II and REN No. 482/2012, respectively.

  49. 49.

    Gesel (2018), pp. 19–20; 25–26.

  50. 50.

    Briefly, the term ‘prosumer’ combines the notion of producer and consumer in one individual. See Toffler (1980) and, for business perspectives, see Ritzer (2014).

  51. 51.

    Jacobs (2017), p. 524.

  52. 52.

    Jansen (2011), pp. 329–331.

  53. 53.

    Noronha (2013), pp. 96–97.

  54. 54.

    Agência Nacional de Energia Elétrica (2012). Article 2, III, REN No. 482/2012.

  55. 55.

    Agência Nacional de Energia Elétrica (2012). Article 6, I, REN No. 482/2012.

  56. 56.

    On energy access in rural or isolated areas (such as the Amazon), see Bassani and Ferreira (2017).

  57. 57.

    To deepen the discussion, the illustrious Nobel Prize-winning economist Amartya Sen (2010), pp. 10–25 has discussed at length criteria for deciding whether a given society can be considered developed, based not only on income but also on the extent to which deprivations of liberty that limit the choices and opportunities of persons to exercise their condition as agent are eliminated. Sen emphasizes five types of freedom, which he considers instrumental: (i) political freedoms; (ii) economic opportunity; (iii) social mobility; (iv) guarantees of transparency and; (v) personal security. These rights and opportunities help to promote a person’s overall capacities and can complement each other. Instrumental liberties interrelate, connecting with one another, and contribute to the increase of human freedom in general.

  58. 58.

    Costa (2009).

  59. 59.

    Agência Nacional de Energia Elétrica (2017).

  60. 60.

    Agência Nacional de Energia Elétrica (2018).

  61. 61.

    Gawel et al. (2014).

  62. 62.

    On the right to self-generation, see: Weissman and Wellinghoff (2015).

  63. 63.

    Brazil. Câmara Legislativa.

  64. 64.

    See: Nester (2006).

  65. 65.

    Agência Nacional de Energia Elétrica (2016).

  66. 66.

    Confaz (2015).

  67. 67.

    Gesel (2018).

  68. 68.

    Agência Nacional de Energia Elétrica (2016).

  69. 69.

    Marques (2016a), pp. 332–342.

  70. 70.

    National Renewable Energy Laboratory (2017), pp. 23, 31, 40.

  71. 71.

    Empresa de Pesquisa Energética (2017).

  72. 72.

    Gesel (2018), p. 5.

  73. 73.

    Ibid, p. 12 (authors’ translation).

  74. 74.

    Banco do Nordeste (2017); Banco Nacional de Desenvolvimento Econômico e Social (2017); Agência de Desenvolvimento Paulista (2017).

  75. 75.

    Banco Nacional de Desenvolvimento Econômico e Social (2018).

  76. 76.

    Brazil. Senate Bill No. 204/2014.

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Authors and Affiliations

  1. Faculty of Law, Federal University of Rio Grande do Sul (UFRGS), Porto Alegre, Brazil

    Claudia Lima Marques & Matheus Linck Bassani

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  1. Claudia Lima Marques
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  2. Matheus Linck Bassani
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Editors and Affiliations

  1. School of Law, University of São Paulo, São Paulo, Brazil

    Alberto do Amaral Junior

  2. Florence School of Regulation, Robert Schuman Centre for Advanced Studies, European University Institute, Florence, Italy

    Lucila de Almeida

  3. Department of Law, UNISINOS University of the Rio dos Sinos Valley and University of Buenos Aires, São Leopoldo, Brazil

    Luciane Klein Vieira

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Marques, C.L., Bassani, M.L. (2020). Consumer Law, Sustainable Energy Consumption and Mini- and Microgrid Decentralized Generation in Brazil. In: Amaral Junior, A.d., Almeida, L.d., Klein Vieira, L. (eds) Sustainable Consumption. Springer, Cham. https://doi.org/10.1007/978-3-030-16985-5_24

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