Edward Murillo
Newspaper La Jornada
Friday, April 8, 2022, p. 3
The Supreme Court of Justice of the Nation (SCJN) did not reach the qualified majority necessary to declare the Electricity Industry Law (LIE) unconstitutional, so it will remain in force.
Although seven ministers declared themselves against endorsing the contested articles, they did not achieve a qualified vote of eight, necessary to invalidate a law already in force.
The debate of the ministers made clear several issues that will be discussed in the Congress of the Union for the electricity reform, among them the role of the State as guarantor of the service and the possibility of restricting private participation in this market.
In the resolution of the nodal point, which is the order of dispatch in the national electricity system (SEN), which privileges the Federal Electricity Commission (CFE), the vote of Minister Alfredo Gutiérrez Ortiz Mena was decisive, who stated that the Article 27 of the Constitution defines the SEN as an exclusive activity of the State.
Those who question this rule they confuse the rule of participation of individuals in the electricity generation market with a different principle, which is that of free competition. Against this first position, I reject that the free market can be applied as a rule
he pointed.
own preferences
In favor of the project of Minister Loretta Ortiz, who proposed endorsing the LIE, the votes of Minister Yasmín Esquivel and Arturo Zaldívar were also added.
We have the duty and responsibility to be very careful not to replace ourselves in the Legislator and make decisions based on our own ideological, economic or political preferences.
warned the president of the SCJN.
Constitutional consistency
Those who voted against the project agreed that it is not up to them to determine which is the best electricity generation system, nor the public policy on this issue, since their work should be restricted to determining whether the LIE is consistent with the Constitution, and with the 2013 energy reform, still in force.
If the Constitution were to change, then we would have to do an analysis under a new parameter, meanwhile that does not happen, it will not be done like this
Minister Alberto Pérez Dayán explained.
Another relevant point was the change in the rules for clean energy certificates, which opposition senators considered to be contrary to the right to a healthy environment and even to the Paris Agreement, with which Mexico promised to reduce the generation of greenhouse gases.
On this issue, a qualified majority was configured that would have defined the unconstitutionality of several articles of the LIE; however, Minister Arturo Zaldívar proposed that a conforming interpretation be added to the project, that is, a quotation from the SCJN on how these precepts will have to be applied, explicitly stating that they will be in accordance with international treaties and constitutional principles. .
With the same vote, other arguments against the LIE were also rejected, among them the alleged incompatibility with article 133 of the Constitution and commercial treaties, as well as the possible violation of the principle of non-retroactivity in the application of laws.
