Construction Engineering Environmental Capital Law Review (No. 25).......................................................................

Published:

2021-09-24

Source: Zhonglu Energy Legal Service Circle Original link: Preliminary Study on Legal Risk Control of Wind Power Photovoltaic New Energy Enterprises New energy refers to renewable energy developed and utilized on the basis of new technologies, including solar energy, biomass energy, wind energy, geothermal energy, etc. The new energy that can form an industry in China mainly includes hydropower, wind energy, biomass energy, solar energy, geothermal energy, etc. China's new energy industry started late, but it has developed rapidly, especially in the field of wind power and photovoltaic, and has achieved world-renowned results. According to relevant statistics, in 2019, the cumulative installed capacity of wind power nationwide was 0.21 billion kilowatts, with wind power installations accounting for 10.4 percent of all power generation installations, and the cumulative installed capacity of photovoltaics in 2019 has also reached 205.7 gigawatts. Wind power and photovoltaic new energy have their own characteristics in the development, construction, and operation. At the same time, due to the greater impact of policies, the risks they face, especially legal risks, are more prominent. Take the policy of full-capacity grid-connected power generation of wind turbines at the end of 2020 as an example, otherwise they cannot enjoy the approved electricity price. Due to the epidemic situation and the influence of wind turbine supply factors in 2020, it is expected that a large number of wind power projects will not be able to complete the full-capacity grid-connected on time in 2021. At that time, these projects may not enjoy the approved electricity price, causing huge losses and a large number of legal disputes to relevant new energy enterprises. The purpose of this paper is to sort out the legal risks and countermeasures of new energy enterprises in the development, construction and operation of wind power and photovoltaic, so as to provide some reference for new energy enterprises in the prevention and control of legal risks. At the same time, all my special legal risk prevention and control service teams and products can carry out professional legal service work for wind power and photovoltaic new energy projects. Overview of Legal Risks of Wind Power Photovoltaic New Energy Enterprises Compared with traditional power generation projects, wind power and photovoltaic new energy power generation projects have great advantages in environmental protection, energy saving, emission reduction and sustainable development, which determine their broad development space and good development prospects. With the support of subsidies and various preferential policies, wind power and photovoltaic new energy power generation projects have gradually become investment hotspots in the energy field, and have achieved very good development results. Wind power and photovoltaic projects have also exposed some problems in the process of rapid development, such as reselling project indicators, projects that have not entered the national construction indicators and cannot obtain project subsidies, projects are located in the ecological red line area, related fans and photovoltaic equipment are removed, and wind power and A series of problems such as the destruction of forest land caused by the development of photovoltaic projects. These problems reflect that wind power and photovoltaic new energy projects have many legal risks, involve a wide range, are affected by policies and are difficult to prevent and control. The occurrence of these problems also reflects that the legal risk identification and legal risk prevention and control work of wind power and photovoltaic projects by wind power and photovoltaic new energy enterprises is not perfect, and it is necessary to further strengthen the work in this area. The legal risk profile of wind power and photovoltaic new energy has the following characteristics: (I) legal risk points Wind power and photovoltaic new energy projects generally go through three stages of development, construction and operation from the signing of the development agreement to the complete termination of the whole project. In these three stages, there are many significant legal risk points, but in terms of contract risk, there are more than a dozen types of contracts involved in a project, and there are many legal risk points in these dozen contracts. Taking the construction contract as an example, if the performance cannot be completed according to the construction period agreed in the contract, this legal risk is the legal risk of the construction period breach from the contract agreement, but it may cause the electricity price approved by the original project to no longer enjoy, and its impact on the owner and the project may be subversive. If a new energy project does not have subsidies, the whole project will face huge losses, the amount of loss may be hundreds of millions or more than one billion yuan. In this case, whether to claim for the expected loss of interest and how to claim for compensation are issues that need to be carefully studied. Complicated (II) legal relationships The development, construction and operation of wind power and photovoltaic new energy projects face complex legal relationships, involving civil, administrative and criminal legal relationships. In many cases, it involves the interlacing of criminals and civilians. For example, the construction unit lacks the professional knowledge of valuable trees in the process of construction project. Although it has obtained the cutting certificate, it has cut down the protected valuable trees and is subject to criminal punishment in violation of the relevant provisions of the criminal law. At the same time, it also violates the relevant environmental protection provisions of the contract with the owner, and needs to bear corresponding civil liability. The various stages of wind power and photovoltaic new energy projects are linked together, and if there is a problem with one link, it may lead to a series of defaults. If the fan supplier is unable to perform the supply on schedule due to problems such as production capacity, resulting in the project not being connected to the grid at full capacity on schedule, the owner abandons the project, and the construction party, technical service party and material supplier who have a contractual relationship with the owner will claim compensation from the owner, resulting in a series of breach of contract and a series of claims. (III) policy has a big impact The success or failure of wind power and photovoltaic projects is highly related to policies, such as the ''Notice of the State Forestry and Grassland Administration on Regulating the Use of Forest Land in the Construction of Wind Farm Projects', ''Notice of the National Development and Reform Commission on Improving the Wind Power Feed-in Tariff Policy'' and ''About 2020 "Notice on Matters Related to the On-grid Tariff Policy for Photovoltaic Power Generation" and other departmental policies have a huge impact on the development and specific construction. At present, the wind power rush at the end of 2020 is due to policy factors. The wind power rush has caused a shortage of hoisting equipment. A large number of hoisting equipment owners unilaterally tore up the contract and asked the owner and the construction party to raise the price by a large margin. The owner and the construction party were forced to agree to the price increase requirement of the hoisting equipment owner due to the pressure of grid connection at the end of the year, thus bringing great internal audit risk and legal compliance risk to new energy enterprises. Comprehensive wind power and photovoltaic new energy projects due to its many legal risk points, complex legal relations, large policy impact and other reasons, resulting in wind power and photovoltaic new energy enterprises face higher legal risks, the need to carry out legal risk prevention and control work is also more onerous. Legal risks and responses in the development phase The wind power and photovoltaic development stage is the stage in which the corresponding work is carried out with the goal of obtaining the approval and filing documents of wind power and photovoltaic projects. In practice, the main tasks at this stage include project selection, signing of development agreements, project site selection, wind and light metering, obtaining approval and filing documents and supporting documents for the project. Wind power and photovoltaic projects face the following legal risks during the development phase: Legal Risks of (I) Development Agreements The development of wind power and photovoltaic projects first needs to obtain the development right of the project. The form of obtaining the development right is to sign the development agreement of wind power and photovoltaic projects with the government. However, there are the following risks in signing wind power and photovoltaic project development agreements with the government: first, the signing subject is illegal, especially the signing subject of the government. Second, the signed content is illegal, such as government tax incentives, policy support and other provisions may be invalid due to violation of relevant national laws and regulations. Third, there are situations where governments in the same development region sign development agreements with different investment entities at the same time. Fourth, the legal risks arising from the failure to renew the development agreement in time after its expiration. Fifth, the legal risks arising from the signing of the development agreement that are too principled and have no specific enforceable content. Sixth, the legal risk of unilateral default by the government. Legal Risks of (II) Project Site Selection The issue of land use for wind power and photovoltaic projects is a major issue related to whether the project can be implemented on the ground, and it is also a problem that needs to be solved in the development stage. There are also a lot of legal risks in this work. First, the project site does not conform to the land use planning and urban and rural planning. Second, the site selection and land use of the project are within the ecological red line. Third, the project site selection and land use have not been checked for sensitive factors, resulting in the site selection and land use within the scope of sensitive factors. Fourth, there is a lack of a systematic and perfect working procedure for site selection and investigation, which cannot guarantee the effect of investigation. (III) projects are not included in the annual development programme Wind power projects shall be included in the annual development plan prior to approval. The fourth paragraph of Article 2 of the notice of the State Energy Administration on further improving the management of the annual development plan of wind power stipulates that the projects included in the annual development plan shall enjoy the project electricity price subsidy according to the relevant management regulations. At the same time, it is stipulated that projects included in the annual development plan shall be approved in the current year, and projects that cannot be approved shall be canceled. The author understands that some local governments have approved wind power projects beyond the annual development plan in the past few years, resulting in the inability to enjoy subsidies after the completion of the project, causing huge losses to new energy companies. Legal Risks of Obtaining (IV) Supporting Documents In the development stage of wind power and photovoltaic projects, a series of approval documents and departmental opinions such as environmental assessment, soil and water conservation, ore compaction, cultural relics and land are required. The legal risk of obtaining supporting documents is that the approval documents are not fully obtained. The second is the use of false materials in the process of obtaining approval documents. Third, after obtaining the approval document, the original approval document has expired before approval and filing, and no new approval document has been processed. In view of the above legal risks in the development stage, it is necessary to do a good job in the legal risk control of the signing and performance of the development agreement, pay attention to the investigation of the project land and sensitive factors, pay attention to whether the project is included in the annual development plan, and obtain all supporting documents in the development stage in a timely and comprehensive manner. Legal Risks and Countermeasures in the Construction Stage The wind power and photovoltaic construction stage is the stage of transforming new energy projects from drawings to reality. In practice, this stage mainly includes the handling of construction procedures, project bidding, land acquisition, construction contract performance, settlement, project acceptance, etc. Wind power and photovoltaic projects face the following legal risks during the construction phase: Legal Risks of (I) Construction Procedures According to the construction law and relevant laws and regulations, the construction project planning permit, construction permit and other procedures should be handled before the construction of the project, otherwise it will face legal punishment. However, in the actual operation process, due to the short construction period, the requirements of the grid-connected power generation policy on time, the lack of strict internal control and other factors, the wind power and photovoltaic projects will start construction without completing the procedures, the relevant construction procedures shall be handled while building. The legal risks faced by the construction procedures are, first, the risk of invalidity of the construction contract. Second, there is a risk that the assets of the construction project will be confiscated. Third, the risk of administrative and criminal penalties. Legal risks in (II) bidding Wind power and photovoltaic as new energy power generation projects, the project survey, design, construction, supervision, and the procurement of important equipment and materials, reaching a certain limit is the scope of legal bidding. If the project really needs to adopt non-bidding methods, it should be submitted to the approving authority for approval. The legal risks faced by bidding are, first, to avoid the invalidity of contracts and administrative penalties caused by public bidding. Second, the contents of the bidding documents are set unreasonable, such as winning the bid at the lowest price, resulting in a large number of disputes and disputes in the performance of the contract. The third is to restrict and exclude potential bidders with unreasonable conditions. Fourth, the bidding work will be carried out if the bidding conditions are not met. Five is the risk of substantive negotiations with the winning bidder and not signing the contract in accordance with the tender documents. Sixth, the risk of not contracting with the winning bidder. Legal Risk of (III) Project Management Project construction management involves, duration, quality, safety, cost, environmental protection and other aspects, any of which will cause disputes, and then affect the progress of the project and the realization of the project objectives. The legal risk of project management is the legal risk of subcontracting and subcontracting. Second, the legal risk of the supervisor failing to strictly fulfill the obligation of supervision. Third, the legal risk of contract changes caused by the price increase of materials and equipment in the course of contract performance. Fourth, the legal risks caused by migrant workers' wages. Fifth, the project is not completed on time, resulting in the risk of a policy reduction in electricity prices. (IV) the legal risk of project acceptance and project settlement. For wind power and photovoltaic new energy projects, after the project passes the trial operation, it is not only necessary to complete the completion acceptance of the main body of the five parties, but also to carry out special acceptance of fire protection, environmental protection, archives and so on. As the final stage of the work project, the project settlement is a more complex process, which directly reflects the various problems in the project process. The legal risk of project acceptance and project settlement is the legal risk of the project being put into use without acceptance. Second, the legal risk of omission of special acceptance. Third, the legal risk of the contractor's request for settlement "based on the price submitted for review. Fourth, the legal risk of the contractor refusing to sign and approve the statement. Fifth, the legal risk of filing a claim after the settlement of the project. In view of the legal risks in the above construction stage, it is necessary to do a good job in the prevention and control of legal risks in construction procedures and project construction management, carry out project recruitment and contract signing in accordance with laws and regulations, carry out special acceptance, avoid the use of implied terms for the settlement of the submitted price, and clarify the settlement method and basis. Legal Risks and Countermeasures in Operation Phase The wind power and photovoltaic operation stage is the stage of obtaining income through the operation of new energy projects. In practice, this stage mainly includes the handling of operation procedures, the signing of power purchase and sale contracts, the maintenance of power facilities, and the declaration of subsidies. Wind power and photovoltaic projects face the following legal risks during the operational phase: The legal risk of (I) operation procedures involving the network experiment. Failure to apply for a power business license, failure to enter into a grid-connected scheduling agreement and a contract for the purchase and sale of electricity, and failure to conduct a grid-related experiment, I .e., the legal risk of grid-connected power generation. The legal risk of administrative penalties for starting a technical transformation without going through the relevant operational technical transformation procedures. Legal risk of failure to strictly handle the quality assurance procedures of (II) fans During the operation of wind power, it involves the review and acceptance of the quality assurance of wind turbines. This work is to review whether the wind turbine supplier has fully fulfilled the obligations of the quality assurance period according to the contract. If this work is not comprehensive and strict, it will leave significant risks and legal risks for new energy enterprises in fan equipment. Legal risk of (III) operation management The legal risks involved in the division of property rights with the grid company during the operation of wind power and photovoltaics. Legal risks involved in the maintenance of operational assets. Legal risks involving operational safety and environmental protection. Involves the legal risk of infringement caused by the lack of performance of operational responsibilities. Involves the legal risk of subsidies not being declared and received in a timely manner. In view of the legal risks in the above operation stage, it is necessary to do a good job in handling the procedures and licenses in the operation stage, improve the quality assurance procedures and requirements of the wind turbine, perform their duties and do a good job in the management of the operation period, and declare and receive new energy subsidies in a timely manner.

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