O CT O BE R–

DE CE M BE R
20 23

EIR QUARTERLY
LEGAL UPDATES
A quarterly round up on legal updates in the Energy, Infrastructure and Resources
sectors

VOLUME II

The Government’s consistent efforts to boost

the energy, infrastructure and resources (EIR)
ecosystem continue as the last few months
have seen various integral legal and regulatory
updates in this area.
With increased focus on infrastructure and in
light of India’s commitment towards promoting
clean and green energy, the Government’s push
to bolster the energy and infrastructure
framework of the country is a promising
indication for both public and private
stakeholders to track developments and seize
any opportunities to enter the industry.
In this Volume II of the EIR Quarterly Legal
Updates, we have covered key legal and
regulatory updates impacting EIR related
sectors in India, particularly in electricity laws,
waste management and renewable energy, for
the period from October 2023 to December
2023.
Snapshot
 CERC order on removing difficulties in relation to certain
provisions of Central Electricity Regulatory Commission
(Connectivity and General Network Access to the Inter-State
Transmission System) Regulations, 2022

 Amendments to the Central Electricity Regulatory Commission

(Sharing of Inter-State Transmission Charges and Losses)
Regulations, 2020

 Gujarat Renewable Energy Policy 2023 issued by the Energy and

Petrochemicals Department, Government of Gujarat

 Rajasthan Renewable Energy Policy 2023 issued by Energy

Department, Government of Rajasthan

 Office Memorandum issued by Ministry of Finance regarding

participation of demerged entities in public procurement

 Amendment to the Central Motor Vehicles Rules, 1989 to promote

hydrogen-based vehicles

 Maharashtra Green Hydrogen Policy notified pursuant to National

Green Hydrogen Mission

 Ministry of Power notifies revised Renewable Purchase

Obligations

 Procedure for implementation of Uniform Renewable Energy

Tariff issued by the Ministry of Power

 Illegal Imposition of Charges by State Governments on generation

of electricity

 Amendment to the Battery Waste Management Rules, 2022

 Amendment to the Plastic Waste Management Rules, 2016

 Bihar Electric Vehicle Policy 2023 issued by the Government of

Bihar

 Policy on repowering of wind power projects

 Amendments to the Central Electricity Regulatory Commission

(Terms and Conditions of Tariff) Regulations, 2019

 Ministry of External Affairs notifies Offshore Wind Energy Lease

Rules 2023
 Key legal and regulatory updates

CERC order on removing difficulties in relation to certain provisions

of Central Electricity Regulatory Commission (Connectivity and
General Network Access to the inter-State Transmission System)
Regulations, 2022

Central Electricity Regulatory Commission (CERC) notified the CERC (Connectivity

and General Network Access to the inter-State Transmission System) Regulations,
2022 (GNA Regulations) for providing non-discriminatory access to the central
“CERC's recent order
transmission network for all power producers. Under the GNA Regulations, a
paves way for payment
distribution licensee or a bulk consumer with a load of 50 MW and above is permitted
of transmission charges to seek connectivity to the inter-state transmission system (ISTS) through an
for T-GNA connections. application for general network access (GNA).
It also addresses refund
of land bank guarantees Further to the aforesaid background CERC issued an order dated 1 October 2023
in the event connectivity (Order). The Order addresses some of the difficulties and clarifications raised by the
bank guarantees are not Central Transmission Utility of India (CTIUL) and Grid-India regarding the
implementation of GNA Regulations. The Order clarifies important points such as
submitted and the
treatment of land bank guarantees and payment of transmission charges for T-GNA.
application is thereby
closed.” Clarity was sought on treatment of land bank guarantees furnished by applicants
that are renewable energy generating stations (other than hydro generating
stations) or energy storage systems (excluding pumped storage plant) – in the event
of closure of connectivity application due to non-submission of applicable
connectivity bank guarantees. The Order clarified that in case the application of an
entity is closed due non-submission of connectivity bank guarantees (Conn BG1, BG2
or BG3), the land bank guarantee of INR 10,00,000 / MW submitted in lieu of land
documents will be returned within 1 month from the closing of the application.

There are two categories of applications for T-GNA, depending on the lead time and
urgency of the requirement, that is, advance application and exigency application.
Advance applications can be made for T-GNA up to one month, while exigency
applications can be made for T-GNA up to 1 day. As per Regulation 34.4 of the GNA
Regulations, the transmission charges for T-GNA under advance application
category have to be deposited within three working days of the grant of T-GNA, or
before the start date of T-GNA if it is within the next 3 working days. The
transmission charges for T-GNA under exigency application category have to be
deposited along with the application.

In light of the above, a request was sought regarding payment of transmission

charges for T-GNA within 3 days from the date of approval of the T-GNA (due to
technical issues) instead of payment of such transmission charges in advance in
relation to the T-GNA staring in the next 3 working days – as given in the GNA
Regulations. The Order allowed the said request on owing to a transition period
between the old regulations and the new GNA Regulations and instructed Grid India
to iron out the technical/ software issues within 2 months from 1 October 2023 –
post which transmission charges are to be paid in accordance with GNA Regulations.
Transmission charges are the charges that an entity must pay to CTUIL for using ISTS
for a specified period and quantum of power.

Further, CERC is also vested with the power to pass any suo moto orders and thus
remove difficulties and implement the GNA Regulations.
 Amendments to the Central Electricity Regulatory Commission
(Sharing of Inter-State Transmission Charges and Losses)
Regulations, 2020
The CERC has issued 3 amendments to the Central Electricity Regulatory
Commission (Sharing of Inter-State Transmission Charges and Losses) Regulations,
2020 (Sharing of Charges Regulations) through notifications dated 7 February 2023
(First Amendment) with effect from 1 October 2023, 20 October 2023 (Second
Amendment) and 26 October 2023 (Third Amendment).
“CERC amends the
Central Electricity The First Amendment was published on 7 February 2023 and brought into effect
Regulatory Commission from 1 October 2023 through CERC’s notification dated 3 August 2023. Some key
(Sharing of Inter-State changes include linkage of the definition of ‘Associated Transmission System’ to the
Transmission Charges GNA Regulations; defining ‘Drawee DIC’ as the Designated ISTS Customers (DICs)
which draw power through ISTS, excluding energy storage systems; sharing of
and Losses)
transmission charges between Drawee DICs and generating stations where bills are
Regulations, 2020 to
raised on the Drawee DICs and the inter se settlement of the transmission charges
align the same with GNA to be as per the terms of the power purchase agreement (PPA) or mutual agreement
Regulations and further between the concerned parties; and late payment surcharge shall be payable by the
clarify the process of concerned DICs as per the Electricity (Late Payment Surcharge and Related Matters)
sharing of charges.” Rules, 2022.

The Second Amendment came into effect on 1 November 2023 and brought in some
key changes such as including a comprehensive definition of ‘deemed COD' which
means the commercial operation date of the transmission system or a part thereof
as: (i) approved by the relevant electricity commission under regulated tariff
mechanism; or (ii) declared by the transmission licensee under tariff based
competitive bidding; the phrase ‘is delayed’ has been replaced by ‘has not achieved’
in the context where a generation station has not achieved COD but the associated
transmission system has done so; a revised mechanism for treatment of yearly
transmission charges (YTC) for inter-state transmission systems or parts thereof has
been prescribed under the amendment – this also includes the delay liquidated
damages where one inter-state transmission licensee causes a delay in another
licensee’s system which has achieved COD.

The Third Amendment shall be brought into effect through a gazette notification and
will bring in key changes including that 30% of the YTC of such transmission systems
will be considered in the national component where an inter-regional HVDC
transmission system is required to transmit power in the reverse direction due to
system requirements, and also a formula for determining the national and regional
component of YTC has been introduced.

Gujarat Renewable Energy Policy 2023 issued by the Energy and

Petrochemicals Department, Government of Gujarat

“Gujarat notifies new On 4 October 2023, the Government of Gujarat issued the consolidated Gujarat
consolidated renewable Renewable Energy Policy 2023 (Gujarat RE Policy 2023), which will be effective till
policy i.e. Gujarat the earlier of 30 September 2028 or till the notification of a new policy, for governing
all renewable projects in the state of Gujarat in supersession of individual erstwhile
Renewable Energy Policy
policies namely, Gujarat Wind Power Policy 2016, Gujarat Wind Solar Hybrid Policy
2023 in supersession of 2018 and Gujarat Solar Power Policy 2021. The Gujarat RE Policy 2023 aims to
the erstwhile separate augment the overall renewable energy capacity in the state, generate 36 GW of solar
renewable policies such and 143 GW of wind energy, attract investments of INR 5,00,000 crores, and utilize
as Gujarat Wind Power 4,00,000 acres of land.
Policy 2016, Gujarat Wind
Solar Hybrid Policy 2018 The benefits and incentives under the Gujarat RE Policy 2023 will be available for a
period of 25 years from the date of commissioning or the lifespan of the renewable
and Gujarat Solar Power
energy (RE) project, whichever is earlier. While Gujarat Urja Vikas Nigam Limited
Policy 2021.”
(GUVNL) is the implementing, facilitating, coordinating and monitoring agency,
Gujarat Energy Development Agency (GEDA) is the nodal agency. GEDA has been
tasked with project registration, validation, issuing commissioning certificates and
tracking monthly progress.

Gujarat RE Policy 2023 is applicable to all RE projects including ground mounted

solar, roof top solar, floating solar, canal top solar, wind, rooftop wind and wind-solar
hybrid projects. However, it is not applicable to projects set up for the purpose of
supplying power to units producing green hydrogen/ green ammonia. Further, it
allows any person to set up an RE project for captive consumption, supply of power
under open access mode and supply of power to the distribution licensee.

Some notable features of the Gujarat RE Policy 2023 are:

• Rooftop solar or small-scale wind plants can be set up under a net metering
arrangement or gross metering arrangement.

• For wind-solar hybrid plants wheeling of energy for captive use or for third
party is allowed on payment of charges. These plants are divided into two
categories:

(i) Type A Projects: include conversion of existing or under-construction

standalone solar or wind power plants into hybrid projects. The
combined solar and wind power injection into the grid after hybridisation
should be lesser than the capacity allowed by Gujarat Energy
Transmission Corporation/ State Transmission Utility (GETCO / STU).

(ii) Type B Projects: include new wind-solar hybrid generation projects

which are not registered with GEDA or for which GETCO / STU has not
granted evacuation permission until the date of issuance of this policy.
RE developers are mandated to lay a dedicated line for the evacuation
of power from the pooling / sending-end sub-station of the project to
the receiving-end sub-station of GETCO / STU.

For both Type A and Type B projects, wheeling for captive use or third-party
sale is permitted upon payment of charges.

• For RE parks, the Gujarat RE Policy 2023 prescribes that the minimum capacity
should be 50 MW and the maximum capacity will be according to the guidelines
and schemes issued by the MNRE from time to time.

• Renewable Energy Certificate mechanism can be used to set up RE projects for

captive use / third party sale in accordance with CERC regulations. However,
wheeling of power from such projects will attract levy of charges.

• Energy accounting and banking for all RE projects is permitted as per the
regulations framed by GERC and Green Energy Open Access Rules, 2022 issued
by MoP. The energy settlement will be on a billing cycle basis and banking
charges will be payable for consumers availing banking facility. However,
residential consumers are not required to pay banking charges on solar power
consumption.

• The consumer or generator will be liable to pay transmission and distribution

charges or losses for wheeling of power as determined by GERC.

• Wind, solar and wind-solar hybrid power can be procured by DISCOMs either
through a competitive bidding process or at a prefixed levelized tariff.
 • RE projects are eligible for carbon credits and they can be retained by
developers of projects installed under competitive bidding route. However,
projects where GERC has determined tariff, carbon credits will be shared as per
the GERC’s tariff order. Further, rooftop solar / wind projects implemented under
the central / state government schemes will have to pass on the benefit of the
carbon credits to the DISCOM.

• The eligibility criteria for setting up captive RE projects has been clarified and
has been linked to the Electricity Rules, 2005 i.e. the ownership requirement is
26% of equity shareholding with voting rights.

• There is no capacity restriction for setting up RE projects for captive use / third
party sale with respect to the consumer / captive user’s contract demand /
sanctioned load with DISCOMs.

• The Gujarat RE Policy 2023 aims to facilitate wind turbine manufactures and RE
developers to install prototype wind turbines, given the benefits of technological
advancements in wind turbines (higher hub height, higher capacity, etc.).
Components or items procured or imported for manufacturing such prototype
wind turbines are eligible for customs and excise duty exemptions.

The Gujarat RE Policy 2023 has attempted to address, resolve and clarify various
critical issues present in the erstwhile policies such as eligibility criteria for setting
up RE projects under captive route, limitation on the installed capacity of RE projects
to sanctioned load / contract demand, extension of the Gujarat Wind Solar Hybrid
Power Policy 2018 etc. However, certain incentives such as concessions in payment
of grid charges, exemption from electricity duty, compensation for lapsed excess
energy etc., which were provided under the erstwhile policies, are no longer being
provided.

Rajasthan Renewable Energy Policy 2023 issued by Energy

Department, Government of Rajasthan

On 6 October 2023, the Government of Rajasthan issued the Rajasthan Renewable

Energy Policy 2023 (Rajasthan RE Policy 2023) governing all RE projects in the state
of Rajasthan. The Rajasthan RE Policy 2023 has been issued in supersession of
separate erstwhile policies, namely, Rajasthan Solar Energy Policy 2019 and
Rajasthan Wind and Hybrid Energy Policy 2019 (collectively, Previous Policies). The
“Rajasthan notifies new Rajasthan RE Policy 2023 is a significant stride towards sustainable energy practices
consolidated renewable and provides comprehensive legal updates to stimulate the growth of renewable
policy i.e. Rajasthan energy in Rajasthan, aligning with broader sustainability goals and emerging energy
Renewable Energy Policy needs. It aims to achieve 65GW of solar capacity and 15GW of wind-solar hybrid
2023 in supersession of capacity by the year 2030.
the erstwhile separate
Some notable features of the Rajasthan RE Policy 2023 are:
renewable policies such
as Rajasthan Solar Energy
• It sets a target of 90,000 MW of renewable capacity by 2029-30 which includes:
Policy 2019 and Rajasthan (i) 65,000 MW solar plants; (ii) 15,000 MW wind and hybrid plants; and (iii)
Wind and Hybrid Energy 10,000 MW hydro plants. This has marked a substantial increase from the earlier
Policy 2019.” clean energy target of 30,000 MW solar power projects and 3,500 MW hybrid
power projects.

• It encourages creation of renewable energy parks through public-private

partnerships, with the government investing up to 50% equity. The registration
charges are set at INR 10,000 / MW plus GST, capped at INR 20,00,000 plus
GST for each solar park.
 • Hybrid projects have been classified into type A and type B, the conversion of
existing or under-construction wind or solar plants into hybrid projects has been
allowed. Rajasthan RE Policy 2023 recognizes a wind-solar power plant as hybrid
if the rated power capacity of one resource is at least 25% of the rated power
capacity of the other resource, deviating from the national standard of 30%.

• Government land will be allotted to solar / RE park and solar / wind / hybrid /
hydro power projects including storage plants as per the provisions of Rajasthan
Land Revenue (Allotment of Land for Setting Up of Power Plant based on
Renewable Energy Sources) Rules, 2007.

• The Rajasthan Vidyut Prasaran Nigam Limited will prepare a plan for renewable
evacuation infrastructure development, including provisions for grid connectivity
and infrastructure development.

• As per the Rajasthan RE Policy 2023, in-principal clearance or approval will be

granted by the state level sanction committee based on the project scenario, in
comparison to in-principle clearance and final approval by the State Level
Screening Committee and the State Level Empowered Committee under the
Previous Policies.

• The charges under the Rajasthan RE Policy 2023 amount to INR 50,000 per
hectare per year for projects commissioned on or after its commencement. The
developers have the option to pay renewable energy development and
facilitation charges or supply 7% of power generated to Rajasthan DISCOMs free
of cost by installing additional capacity. In contrast, the Previous Policies had
development charges ranging from INR 2,00,000 to 5,00,000 per MW per year
depending on the commissioning date.

• It aims to develop 10 GW capacity from hydro, pumped storage, and battery

energy storage systems, encouraging RE power projects with storage systems
for captive use/ third-party sale.

• It aims development of EV charging infrastructure in accordance guidelines and

standards issued by Ministry of Power and Central Electricity Authority. EV
charging stations may be established by state / Central public sector
undertakings, private operators, or under public-private partnership models.

• The state will promote the setup of decentralized solar power projects with a
minimum capacity of 0.5 MW and a maximum capacity of 5 MW in the premises
and vicinity of 33 kV grid sub-stations for sale of power to DISCOMs.

Office Memorandum issued by Ministry of Finance regarding

participation of demerged entities in public procurement

“Demerged entities The Ministry of Finance (MoF) on 12 October 2023 issued an office memorandum
may use credentials of allowing demerged entities to use the credentials of the original / parent entity to
satisfy the eligibility criteria in tenders for the first 5 years from the incorporation of
parent entity to
the demerged entities. Procuring entities may consider such parent entity credentials
participate in bid
based on factors including, inter alia, the nature of demerger, type of procurement
processes.” and number of eligible bidders.

That said, the tendering authority may exercise its discretion in specifically
mentioning whether credentials of a demerged entity will be considered or not and
may also specify certain terms and conditions under which demerged entities may
be considered eligible to participate.
 Amendment to the Central Motor Vehicles Rules, 1989 to promote
hydrogen-based vehicles

The Ministry of Road Transport and Highways (MoRTH) on 16 October 2023 issued
the Central Motor Vehicles (Eighth Amendment) Rules, 2023 with the objective of
“MoRTH amends the promoting hydrogen-based vehicles in India. This amendment ensures that hydrogen
Central Motor Vehicles powered vehicles comply with safety and procedural standards and promotes the
Rules, 1989 to promote development of clean energy solutions, through introduction of a new rule 125M,
hydrogen-based wherein safety and procedural requirements for type approval of internal
vehicles.” combustion engine vehicles in the M and N categories (i.e., for four-wheeled vehicles
for carrying goods/ persons) powered by liquid or compressed gaseous hydrogen,
provided hydrogen fuel specifications for internal combustion engine vehicles are in
accordance with IS 16061: 2021.

The aforesaid requirements will be as per the Automotive Industry Standards (AIS
195:2023) until corresponding BIS specifications are notified under the Bureau of
Indian Standards Act, 1986.

Maharashtra Green Hydrogen Policy notified pursuant to National

Green Hydrogen Mission

The Maharashtra Green Hydrogen Policy (Policy) was notified by the Maharashtra
State Department of Industry, Energy and Labour on 17 October 2023 to promote
the production and use of green hydrogen in the state, with a production target of
500 kilo tons per annum green energy by 2030. Key features of the Policy include:

• Tenure: Effective up to 31 March 2030 or until the announcement of a new green

hydrogen policy by the State.

“With a view to promote • Registration: Projects producing green hydrogen and its derivates and renewable
green hydrogen mission, energy projects in Maharashtra related to the aforesaid production will be registered
Maharashtra’s green with Mahaurja’s office.
hydrogen policy aims to • Incentives and Subsidies: The Policy provides various incentives and subsidies to
incentivize its production projects that procure 100% renewable energy to produce green hydrogen (including
by providing exemptions production of hydrogen from municipal solid waste and biomass) or procure
in duties and surcharges.” renewable energy from third parties including through open access routes, power
exchanges, integration of renewable energy sources and storage systems, licensed
power transmission companies. The Policy provides for the following incentives:

o 50% exemption from intrastate transmission charges (ISTC) and wheeling

charges for a period of 10 years from the date of commissioning of green
hydrogen projects and similarly 60% exemption will be provided for hybrids of
hydrogen and its derivatives. Further, up to 3 projects with total capacity of 100
kilotons per annum a 50% waiver on transmission and wheeling charges is
provided for a period of 20 years.

o 100% exemption from electricity duty, cross subsidy surcharge and additional
surcharge for a period of 10 years for standalone renewable energy plants and
15 years for hybrid renewable energy plants.

o 100% waiver on land tax, excise duty and stamp duty on land acquisition for
projects completed during the implementation period of the Policy.

Benefits under the Policy will not be applicable to the projects approved prior to the
implementation of the Policy and to projects implemented upon its expiry.
 That said, the benefits would be limited till the time the projects produce 500
kilotons of hydrogen or 5 GW of operational electrolyser capacity, whichever is
attained first. An associate, beneficiary group of owners or special purpose vehicle,
joint venture in relation to a parent company will be eligible for concessions to the
extent 100 kilo tons of hydrogen is produced per year or 1 GW of operational
electrolyser capacity – whichever is lesser.

The Policy will ensure maintenance of energy security and deployment of renewable
energy sources and technologies towards realising the objectives under the National
Hydrogen Mission.

MoP notifies revised Renewable Purchase Obligations

Pursuant to the erstwhile order dated 22 July 2022 issued on renewable purchase
obligations (RPO), the Ministry of Power (MoP) notified the revised RPO on 20
October 2023, which comes into force on 1 April 2024. The notification sets out the
minimum share of consumption of renewable energy sources along with different
shares of consumption for different types of sources for designated consumers such
as distribution licensees, open access consumers or captive for the period 2024-
“Revised RPO targets 2030, and aims to promote the use of clean energy sources for electricity and
can be met through a specifies compliance and penalty mechanisms for the designated consumers to meet
the set renewable energy targets.
composite mix of many
renewable energy Key features of the notification are as follows:
sources including
trading of RECs.” • Scope:

o Wind and hydro energy (including energy generated from pump storage
projects, small hydro projects, hydro power projects situated outside India
as approved by Central Government and free power being provided to
State/DISCOMs from hydro power projects) components will be met by
power generated from such projects commissioned after 31 March 2024.

o Distributed renewable energy (DRE) components will only be met from

energy generated from renewable energy projects less than 10 MW. This
includes solar installations under all configurations, such as rooftop, ground-
mounted, floating, etc.

o Other renewable energy: This component can be met by energy produced

from renewable energy projects other than specified above. However, it
includes energy from all projects, including free power commissioned before
1 April 2024.

• Renewable energy targets: The notification provides that the total energy
consumption must be obtained from different types of renewable energy
sources such as wind, hydro, distributed renewable sources and others as
captured below. For instance, the total renewable energy share for:

o wind energy increases on a yearly basis from 0.67% in 2024-25 to 3.48% in

2029-30;

o hydro power ranges from 0.38% in 2024-25 to 1.33% in 2029-30;

o distributed renewable energy sources which ranges from 1.50% in 2024-25

to 4.50% 2029-30; and
 o other renewable energy sources ranges from 27.35% 2024-25 to 34.02% in
2029-2030.

While the targets are divided depending upon the source of renewable
energy, shortfall in wind and hydro energy can be adjusted by considering
the power consumption under the other or adjusted against any excess
energy consumption under other renewable sources. That said, an exception
is made for open access consumers or consumers with captive power plants
to fulfil their renewable energy consumption regardless of the source.
Further, meeting renewable energy consumption targets may also be done
through trading of renewable energy certificates.

• Penalty: Any shortfall in meeting the specified renewable energy consumption

targets will be treated as non-compliance and a penalty of INR 10,000 per MWh
will be imposed as per the Energy Conservation Act, 2001.

The revised RPO notification is a step in the right direction towards reducing the
dependence on fossil fuels and implementing India’s climate commitments towards
net zero carbon footprint. However, the notification does not cover procurement of
energy from sources with energy storage systems as compared to the erstwhile
order notified by MoP.

Procedure for implementation of Uniform Renewable Energy Tariff

issued by the Ministry of Power

Pursuant to the Electricity (Amendment) Rules 2022 (Amendment Rules), which

inter-alia provide for implementation of uniform renewable energy tariff (URET), the
MoP on 25 October 2023 issued the procedure for implementation of URET through
Grid India, as the implementing agency (IA) for standardizing the tariff across various
categories of central pool such as solar, wind etc. at which the intermediary procurer
“In line with the (IP) will sell power generated from renewable sources from such central pool to all
amended Electricity the end procurers.
Rules, MoP provides
Some notable features of URET implementation procedure include:
the procedure for
implementation of
• Categorisation of central pools for the following renewable energy sources,
Uniform Renewable including: (a) solar; (b) wind; (c) hydro; (d) solar-wind hybrid; (e) round-the-
Energy Tariff for clock power (solar-wind hybrid and storage); (f) peaking power (solar-wind
standardizing tariff hybrid and storage); (g) firm and dispatchable renewable energy power; and (h)
across various any other new pool as specified by the Central Government.
categories of central
pool.” • Notification by the Central Government on the start date for each category of
central pool for a duration of 5 years. All the capacity for which power supply
agreements (PSAs) are signed within this period will be part of the central pool
(provided other eligibility conditions are fulfilled), which will remain part of the
pool till expiry of the respective PSAs. No new capacity will be added upon the
lapse of the 5-year period from the start date of the pool.

• Applicability of URET only on power procured by the end-procurer, which will

not have any impact on the renewable energy tariff discovered under the
respective tariff based competitive bidding process and payable to renewable
energy generators by the IP as per the power purchase agreement (PPA).

• Eligibility criteria for applicability of URET on generators/ producers, end

procurers and IP.
 • Contractual obligations between generators and IPs, and IPs and end-procurers
to be governed by the respective bidding documents including PPAs and PSAs
and will have no bearing on URET.

• Role of the IA (i.e. Grid India) which includes:

(a) computing monthly URET based on information submitted by the IPs.

(b) issuing monthly account statements for adjustment of any surplus/ deficit
tariff among the IPs, based on information submitted by the IPs.

(c) publishing relevant details including the monthly accounts statements on

its website.

• Calculation of URET based on scheduled energy to end procurer from the pool
by the IPs and actual amount payable for such supply of power.

Illegal Imposition of Charges by State Governments on generation

of Electricity

The MoP issued a circular on 25 October 2023 (Circular), pursuant to an earlier

circular dated 25 April 2023, to all state governments as a reminder that imposition
of additional charges in the form of development fee, tax, duty, or cess on generation
of electricity from any source (thermal, hydro, wind, solar, nuclear, etc.) was illegal
and unconstitutional. The Circular recognizes that while imposition of additional
“States cannot levy charges by state governments on consumption and sale of electricity is
additional charges in constitutional, such charges cannot be imposed by a particular state government on
the form of generation of electricity since the electricity may be generated in one state and
development fees/ consumed in another, and also since any tax / duty which the state government is
fund/ tax/ cess on not specifically allowed to levy as per the constitution cannot be imposed by the
generation of state government. Additionally, no taxes can be imposed on consumption or sale of
electricity consumed by the Central Government or sold to the Central Government
electricity.”
for consumption by the Government agencies.

The imposition of additional charges by some States on generation of electricity from

various sources directly affects the viability and profitability of power projects,
especially those based on renewable energy sources. Such charges may also increase
the cost of electricity for consumers and hamper the development of the electricity
sector.

Amendment to the Battery Waste Management Rules, 2022

The Ministry of Environment, Forest, and Climate Change (MoEFCC) on 25 October

2023 notified the Battery Waste Management (Amendment) Rules, 2023 (Battery
Waste Rules). The Battery Waste Rules have introduced amendments in relation to
responsible handling of waste batteries.

Some notable features of the Battery Waste Rules are:

• The definition of a ‘battery’ has been expanded to include new or refurbished

cells and accumulators, any source of electrical energy derived from direct
conversion of chemical energy and includes both disposable primary and
secondary batteries.

• Battery producers will be required to recycle or refurbish the batteries brought

to the market, along with those utilized by themselves, and will also be required
to handle pre-consumer waste batteries originating from the manufacturing,
assembly, or import processes.
 • The Central Pollution Control Board (CPCB) will regulate the Extended Producer
Responsibility (EPR) through an online portal, and producers will be required
obtain registration through this platform. Further, the producers will be required
to submit a report on the batteries manufactured, assembled, or imported in the
previous fiscal year to CPCB by the 30th of June every year.

“MOEFCC amends the • Manufacturers are now required to fulfill their targets for collection, recycling,
notifies Battery Waste and refurbishment of various types and sizes of batteries.
Management Rules,
2022 imposing new • Recyclers and refurbishers are required to submit quarterly reports on the CPCB
portal with details of the total weight of the waste batteries processed by them.
duties and
The regulations specify that EPR certificates will not be generated for the
responsibilities on
recycling or refurbishment of imported waste batteries, highlighting the
battery producers, significance of efficient management of domestic waste.
refurbishers and
recyclers with the aim • The provision on issuance of certificates for waste batteries has been amended
of realising sustainable to include the following:
and accountable
o if one or more trading platforms exist for the sale / purchase of EPR
battery management.”
certificates, these certificates can be established through an accredited
agency, aligning with the guidelines issued by the CPCB and approved by
the Central Government;

o the operation and regulation of the electronic platform facilitating the trade
of EPR certificates among obligated entities will adhere to guidelines notified
by the Central Government based on the recommendations of CPCB; and

o CPCB will determine the highest and lowest prices for EPR certificates every
6 months or as needed, taking into consideration the costs associated with
the collection and the environmentally sound management of waste
batteries.

The Battery Waste Rules mark a significant stride toward sustainable and
accountable battery management by imposing notable responsibilities on battery
producers, recyclers, and refurbishers, and highlighting the significance of EPR and
environmentally friendly approaches.

Amendment to the Plastic Waste Management Rules 2016

The MoEFCC through notification dated 30 October 2023 amended the Plastic
Waste Management Rules, 2016 (Plastic Waste Rules). Some of the key amendments
“MoEFCC amends
are set out below:
Plastic Waste
Management Rules by • Amendment to the definition of ‘carry bags’ to include bags made from
introducing, inter alia, biodegradable plastic, in addition to those made from plastic material or
one-time online compostable plastic, and that of ‘producer’ to include persons engaged in
registration, ensuring manufacture of plastic packaging.
valid consents under
• Introduction of a centralized online portal for making applications for one-time
Air Act and Water Act
registrations under the Plastic Waste Rules. The erstwhile provision regarding
are obtained, purchase
registration being initially granted for 1 year and subsequently for 3 years has
of EPR certificates, been omitted.
etc.”
• The State Pollution Control Board or Pollution Control Committee will not grant
registration to plastic waste recycling or processing units unless such unit
possesses a valid consent under the Water (Prevention and Control of Pollution)
Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 as well as a
registration certificate from the District Industries Centre or any other
Government agency authorised in this regard.
 • Entities required to register for extended producer responsibility (EPR) on the
centralised online portal (viz. producers, importers, brand owners and plastic
waste processors engaged in recycling, waste to energy, waste to oil, and
industrial composting) cannot deal with any unregistered entity having an
obligation to register.

• A new provision re purchase of EPR certificates has been inserted wherein the
CPCB may allow purchase of EPR certificates of category which has a surplus in
fulfilment of EPR obligations, for fulfilment of a category with deficit in EPR
obligations. The CPCB will prescribe the quantum of EPR certificates to be
procured to bridge the gap where deficit exists based on availability and cost of
collection, segregation and processing for different categories of plastic
packaging waste. However, the aforesaid provision is only applicable till the end
of 2025-2026.

Bihar Electric Vehicle Policy 2023 issued by the Government of Bihar

The Government of Bihar on 5 December 2023 notified the Bihar Electric Vehicle
Policy 2023 (EV Policy) with the objective of inter alia making Bihar a model state
for electric vehicle (EV) transport ecosystem and developing an accessible and
“Bihar Government
robust network of EV charging infrastructure in the state. The goal of the EV Policy
notifies Bihar EV
is to ensure that 15% of the new vehicles purchased and registered in Bihar by 2028
Policy 2023 to ensure are EVs.
that 15% of the new
vehicles purchased The EV Policy will remain effective for a period of 5 years from the date of its
and registered in Bihar publication in the official gazette (i.e. 5 December 2023). The fiscal incentives
by 2028 are EVs.” provided under the EV Policy are in addition to those available under the Central
Government’s Faster Adoption and Manufacturing of Hybrid and Electric Vehicles
(FAME II) scheme. Under the EV Policy, the incentives for setting up a charging
station will be applicable to the charging stations established as per existing
guidelines and MoP standards and benefits for EVs will be applicable to those in
compliance with the technology definition of each category of EV under the FAME
India Scheme. However, no beneficiary may claim more than one similar incentive
under any other scheme run by the State Government.

Some key features of the EV Policy are:

• Several incentives and rebates have been included in the EV Policy for electric
two-wheelers, electric three-wheelers (passenger and goods carriage vehicles),
electric four-wheelers, light electric motor vehicle (goods carriage) and heavy
electric motor vehicle (bus and goods carriage).

• Owners of EVs are eligible for scrapping incentives for old vehicles as per the
notification issued by MoRTH from time to time.

• Providing accessible EV charging stations in Bihar being the prime objective of

the EV Policy, the Government of Bihar endeavours to establish a network of
public and private charging stations across the state. A category-wise incentive
mechanism has been set out in line with MoP guidelines for various categories of
chargers. Incentives for all types of charging stations will be applicable for 3
years.

• The EV Policy provides for a 30% subsidy which may be provided on power tariff
for public and semi-public charging stations for the first 3 years.

• Municipal authorities to provide subsidized parking for personal EVs and cities
to prepare a city parking plan for on-street parking places for EVs with
subsidized fees and EV charging stations.
 • A 3-tier arrangement for directives, monitoring and implementation of the EV
Policy has been laid out with State EV Steering Committee at apex level,
Transport Department EV Monitoring Committee (with the Transport
Department as the nodal department for implementation of the EV Policy) and
a District-Level EV committee under the Chairmanship of the District Magistrate.

• A re-use and recycling ecosystem for end-of-life batteries is encouraged under

the EV Policy and a well-defined Policy for encouraging re-use of batteries will
be notified by the Industries Department, Government of Bihar in consultation
with the Environment, Forest and Climate Change Department of Bihar
Government and Bihar State Pollution Control Board.

Policy on Repowering of Wind Power Projects

The Ministry of New and Renewable Energy (MNRE) issued a circular dated 7
December 2023 setting out the policy for repowering of wind power projects (in
suppression of the ‘Policy for Repowering the Wind Power Projects’ dated 5 August
The revised policy on 2016) (Policy), which came into effect on 7 December 2023. The Policy aims to allow
repowering of wind power older-generation turbines to be replaced or repowered with more efficient turbines
projects is a step in the from the latest generation and refurbishing wind turbines to extend their lifespan
right direction towards beyond their original design subject to safety and performance assessments. Key
optimizing wind energy features of the Policy are enumerated below:
turbines to its potential
thereby increasing its • Developers are required to undertake repowering or refurbishment of old wind
capacity and generating turbines as follows:
more renewable energy.”
o Wind turbines which fail to comply with quality control order of the MNRE;

o Wind turbines that have completed their life design under respective type
certificate in accordance with applicable standards;

o Wind turbines of rated capacity below 2 MW; and

o Commercial / voluntary consideration after 15 years of installation.

• Implementation:

o Standalone projects: The state / central nodal agencies can identify potential
turbines for repowering and eliciting interest or project owners may directly
submit a detailed project report for such repowering. Based on the report –
the nodal agencies will coordinate with the respective state / central
transmission utilities for augmentation of transmission capacity. Further
upon scrutiny of the project – in principle consent of the DISCOMs along with
consent letter of the nodal agencies will be provided to the project owner.

o Aggregation projects: Such projects will be identified by nodal agencies and

a state / central public sector enterprise or private developer based on
technical and financial criteria will be declared as the wind powering project
aggregator (WPPA). The WPPA will be responsible for acquiring/ leasing
additional land, obtaining state and central clearances for development of
the project, acquiring all assets at the site including wind turbine and
compensate the owners for future loss of revenue for the balance life of the
project.

Under both abovementioned projects – the developer is required to issue a

notice to the state / central utilities 2 years in advance for enhancing
 transmission capacity in accordance with the proposed repowered capacity
of the wind power project.

• PPA:

o Until the expiration of the PPA, the power produced at the metering point
prior to repowering, calculated as an average of the previous 3 years’
generation, would be obtained following the terms of the agreement.

o Except for delays brought on by force majeure, the PPA's term will be
extended for repowering for a maximum of 2 years.

o However, following the repowering, the DISCOM will not be obligated to

acquire or have any control over the extra power produced. The developer /
owner may, at its option, sell the extra power generated as per applicable
laws and there will be no compulsion on supply of power to any DISCOM /
procurer at fixed rates.

o On the advice of the Wind Repowering Committee, a project that is

undertaking repowering will be excused from providing power to the DISCOM
for the duration of the repowering, up to a maximum of 2 years from the date
of consent issued by state / central nodal agencies (except for delays brought
on by force majeure events). The Policy also permits a portion of early
commissioning.

o Before the repowering work begins, the DISCOMs / owners of PPAs will be
notified at least 1 year prior – so that other power sources may be arranged.

o With the mutual consent of both parties, the previous PPA may be terminated.

o Commissioning Period: The repowered / refurbished projects shall be

commissioned within a period of 24 months from the date of consent letter
from the nodal agencies – part and early commissioning is permitted.

Amendments to the Central Electricity Regulatory Commission

(Terms and Conditions of Tariff) Regulations, 2019

“The Central Electricity The CERC on 15 December 2023 issued the third amendment (Amendment) to the
Regulatory Commission Central Electricity Regulatory Commission (Terms and Conditions of Tariff)
(Terms and Conditions Regulations, 2019 (2019 Tariff Regulations), which is valid for the tariff period 2019-
2024 and will remain in force till 31 March 2024.
of Tariff) Regulations
2019 have been The Amendment has brought about changes to Appendix-II of the 2019 Tariff
amended to include Regulations (Procedure for Calculation of Transmission System Availability Factor
declaration of deemed for a Month). Following are the key provisions of the Amendment:
availability in case of
shut down of a • Shut down of a transmission line due to shifting or modification of such
transmission line due to transmission line or otherwise on account of project(s) of National Highways
Authority of India (NHAI), Railways, and Border Road Organisation (BRO) being
NHAI, Railways or BRO
deemed available, provided DICs are not affected by the shutdown of such a
project(s).” transmission line.

• Remedial provisions for disputing the transmission licensee’s reason for outage
and the Regional Power Committee’s (RPC) power to allow the outage hours on
provisional basis till the final view by Chairperson of the Central Electricity
Authority have been removed.
 • Outage period which can be excluded as follows: (a) maximum up to 1 month by
Member Secretary, RPC; (b) beyond 1 month and up to 3 months after a decision
at RPC; and (c) beyond 3 months by the CERC, for which the transmission
licensee will approach the CERC along with reasons, steps taken to mitigate the
outage and restoration timeline.

Ministry of External Affairs notifies Offshore Wind Energy Lease

Rules 2023

Ministry of External Affairs through notification dated 19 December 2023 notified the
“The Offshore Rules Offshore Wind Energy Lease Rules, 2023 (Offshore Rules). The Offshore Rules
introduce a framework provide for standards for construction and management of offshore wind energy
for generating wind projects and guidelines for leasing, managing, and maintaining offshore wind
installations within the confines of the exclusive economic zones. Key features of the
power in exclusive
Offshore Rules are as follows:
economic zones and
set out key provisions • Lease: Installation of offshore wind energy projects / transmission projects is
such as assignment and only permitted under a lease granted by the Central Government in accordance
transfer of lease with with the Offshore Rules.
the consent of the
Central Government for o Process: The Central Government will select the lessee as per the process
given under the National Offshore Wind Energy Policy. However, prior to the
stakeholders.”
grant of the lease, clearances from various ministries need to be obtained
such as the Ministry of Defense, Ministry of Home Affairs, Ministry of External
Affairs, MoEFCC, Department of Space, Ministry of Ports, Shipping and
Waterways.

o Area: The area to be covered under the lease will be determined by the
Central Government based on the wind resource assessment and marine
spatial planning. However, the area covered under the lease will typically
vary from 25 to 500 square kilometers – depending on the size of the project.

o Tenure: The lease shall be valid for a period of 5 years (3 years given initially,
which can be extended by 2 years) for resource measurement, related
studies and surveys. After the expiry of 5 years – the lease will expire, and all
clearances provided to the lessee shall be withdrawn – unless the lessee has
begun work to set up the wind energy capacity.

To construct and operate the offshore wind energy project, the lease will be
extended for 35 years on a case-to-case basis subject to the viability and
safety of the project.

Further, if the aforesaid study / survey does not commence in 6 months from
the effective date of the lease, the Central Government has the right to
cancel the lease and forfeit the security deposit.

o Rights of the Lessee: While the lessee will have an exclusive right to carry on
activities in relation to offshore wind energy / transmission and restrict entry
into designated lease area, it is not permitted to: (a) sub-lease any part of
the lease without the prior approval of the Central Government; (b) explore
/ extract any minerals and other resources from the sea bed, adjacent waters
etc. except offshore wind power generation related works. Further, no
royalty is payable for the development of offshore wind energy projects.

o Transfer / Assignment: The lessee is not permitted to assign / transfer rights

/ title / interest in respect of the lease or area covered therein without the
written consent of the Central Government.
 o Pre-emptive right: In the event of an emergency such as natural disaster, civil
unrest, external aggression, the Central Government shall have a right of pre-
emption of the lease for power generation. However, if the project has been
commissioned and is generating power, the lessee shall be paid the cost of
the power which could be dispatched due to the aforesaid.

o Cancellation of lease: Central Government has the right to cancel the lease
in cases such as: (a) violation of terms and conditions of the lease; (b)
irreparable environmental damage to flora and fauna; (c) failure to provide
documents re the project; (d) use of leased area for other unwarranted
purposes. However, the Offshore Rules also provide for a remedial period for
rectification of such contravention. In the event the failure to fulfill conditions
under the lease is attributable to a force majeure event, such a delayed
period will be excluded from the time granted for the specific period.

The issuance of the Offshore Rules is a positive step towards harnessing the offshore
wind energy potential, however specific negotiated positions in relation to the lease
are expected to be seen in the near future.
 About Khaitan & Co
Khaitan & Co is a top tier and full-service law firm with over 1000 legal professionals,
including 220 Partners and Counsel, and presence in India and Singapore. With more
than a century of experience in practicing law, we offer end-to-end legal solutions in
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Acknowledgement
- Shivanshu Thaplyal (Partner), Tavishi Srivastava (Senior Associate), Priyesh
Verma (Associate), Meher Bhatia (Associate) and Swati Shekar (Associate)

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