Manifesto Against the Unlawful Imposition of Regulatory Inspection Fees on Natural Gas Marketers
RELIVRE — which brings together key representatives of Brazil’s productive sector, including the Brazilian Petroleum, Gas and Biofuels Institute (IBP), the Brazilian Association of Independent Oil and Gas Producers (ABPIP), and the Brazilian Association of Large Energy Consumers (ABRACE Energia) — once again expresses its concern regarding the imposition of regulatory inspection fees on natural gas marketers by certain Brazilian states.
The Brazilian Constitution assigns to the states the responsibility for providing, either directly or through concessions, local piped gas distribution services, namely the transportation of natural gas through distribution networks. In several instances, however, state regulatory action has exceeded this constitutional mandate, extending into areas that fall under the jurisdiction of the Federal Government, as is the case with the establishment of regulatory inspection fees imposed on natural gas marketers.
Some states have introduced, through legislation or administrative regulations, not only inspection fees related to the provision of gas distribution services but also fees applicable to natural gas trading activities within their respective free gas markets.
However, while gas distribution services have been delegated to the states, natural gas commercialization is a matter under federal jurisdiction, as established by the Federal Constitution, Article 8, Item XXVI of Law No. 9,478/1997 (the “Petroleum Law”), Chapter VII of Law No. 14,134/2021 (the “New Gas Law”), and ANP Resolution No. 52/2011. It is important to note that ANP regulations already provide for the monitoring and enforcement of commercialization activities, including the application of penalties in cases of non-compliance.
In practice, this means that states may establish inspection fees only in connection with the provision of natural gas distribution services performed by distribution concessionaires, but not in relation to commercialization activities carried out within the free market, which clearly fall under federal jurisdiction.
Currently, regulations in at least ten Brazilian states include provisions establishing such inspection fees—which RELIVRE considers unlawful—to be charged to natural gas marketers supplying free consumers in their respective jurisdictions: Amazonas, Bahia, Ceará, Paraíba, Paraná, Pernambuco, Rio Grande do Norte, Rio Grande do Sul, Santa Catarina, and São Paulo.
Since its creation, RELIVRE has maintained the position that state laws and regulations governing natural gas commercialization are inconsistent with federal legislation and encroach upon ANP’s authority to regulate and oversee the activity. Such measures hinder the development of Brazil’s natural gas market by creating regulatory overlap, generating conflicting requirements and legal uncertainty, increasing unpredictability, undermining regulatory stability, expanding bureaucracy, and unnecessarily raising the costs associated with natural gas trading activities.
Finally, RELIVRE emphasizes the need to eliminate all overlaps between state-level regulation and ANP regulation. Laws and regulations must remain consistent with federal legislation and fully respect the division of powers established by the Federal Constitution.
