“Administrative simplification” for renewable energy installations in Italy: which news incoming?

The Italian government, in an attempt to simplify the already complex authorization procedures, has adopted and is planning further measures to speed up environmental authorization procedures as well as to provide to the economic operators with a clear, precise and organic framework of administrative regulations for renewable energies. 

In fact, on 10 October 2024, the Council of Ministers approved the draft decree-law known as “D.L. Ambiente” containing 'Urgent provisions for the environmental protection of the country, the streamlining of environmental assessment and authorisation procedures, the promotion of the circular economy, and the implementation of measures concerning the reclamation of contaminated sites and hydrogeological instability', published in the Official Gazette on 18 October 2024.

The act with the force of law made amendments, inter alia, to certain provisions of Legislative Decree No 152 of 3 April 2006, also known as the 'Testo Unico Ambientale'.

In particular, Article 1 of the D.L. Ambiente amended Article 8 of Legislative Decree No. 152 of 3 April 2006 and ruled that in the handling of proceedings falling within the competence of the EIA and VASTechnical Commission and the PNRR-PNIEC Technical Commission, priority must be given to projects relating to programmes declared to be of pre-eminent national strategic interest, taking into account the following criteria: 

The precise identification of the projects considered to be of pre-eminent national strategic interest will be made by decree of the Ministry of the Environment and Energy Security, in agreement with the Ministry of Culture. Pending the decree, projects of pre-eminent strategic interest are considered, pursuant to the newly introduced paragraph 1bis of Article 8 of the Consolidated Environmental Act: 

With reference to the environmental impact assessment and the modalities of carrying out the procedure of verification of subjectivity to EIA (EIA screening), paragraph 6 of art. In fact, it has been provided that, once only and within fifteen days from the expiration of the term of forty-five (45) days for the conclusion of the EIA screening procedure, the competent authority may request from the proponent further clarifications or additions aimed at clarifying the non-subjection of the project to the EIA procedure, assigning the same a term of no more than thirty days to carry out such clarifications; furthermore, it has been indicated that if the proponent does not submit the requested clarifications or additions within the allotted time limit, the petition shall be deemed rejected with consequent dismissal.

It is also added to paragraph 10 of art. 19 the provision according to which, the EIA screening measure is effective for a period of time, in any case not less than five years; at the end of the five years and once the EIA screening measure has been obtained, but in the absence of the realization of the project, the applicant is legitimated to re-submit the project, accompanying the request with an explanatory report on the environmental status of the intervention area, in the case of significant variations. In this last scenario, within 15 days from the presentation of the reiterated request, the Administration shall verify the completeness of the documentation and if the documentation is incomplete, the authority shall request the necessary integrations, assigning a peremptory term of no more than twenty days. In the event that the applicant does not deposit the supplementary documentation within the deadline assigned, or if the documentation is still incomplete, the application is considered withdrawn and the competent authority proceeds to file it.

Finally, an important novelty concerns the inclusion of the authorisation procedure of Landscape Authorization within the EIA procedure, thus, no longer an autonomous and parallel procedure but a sub-procedure within the EIA procedure.

However, there are lights and shadows within the Decree-Law already in force, as well as many questions.

First of all, if on the one hand one cannot but note the favour and the effective attempt to simplify environmental procedures for projects with a capacity equal to or greater than 50 MW, on the other hand it is evident that these provisions cannot but penalise projects with a capacity of less than 50 MW, which will obviously suffer further delays in violation of the principle of the imperative nature of deadlines. 

Secondly, it is not clear (or rather not contemplated) within the Decree-Law a transitional regime in order to understand whether the rules introduced also apply to proceedings already underway, especially if they were implemented prior to the so-called ‘D.L. Agricoltura’. If this were not the case, projects with a capacity of less than 50 MW would not only be prohibited from being built on agricultural land but would also suffer further delays due to the newly-introduced pre-eminence criteria. Thus, we are faced with a discipline that is abstractly oriented towards authorization simplifications but that, in practice, would seem to make the discipline even more disorganized.

Numerous concerns have also been raised in relation to a further upcoming reform: the so-called 'Testo Unico delle Rinnovabili'.

In fact, on 7 August 2024, the Council of Ministers approved the draft legislative decree on 'Regulations on administrative regimes for the production of energy from renewable sources'. The text is currently being examined by the Parliamentary Committees (the deadline for final approval is 26 November 2024).

The reform, which has been awaited for more than two years, is part of an already extremely fragmented, disorganized regulatory framework, which is, among other things, riddled with provisions - such as those contained in the latest DL Agricoltura and the Ministerial Decree ‘Aree idonee’ (Ministerial Decree on Suitable Areas) - that, amidst generalized bans and regulatory shortcomings, have contributed to exasperating the climate of uncertainty among operators in the sector and risk curbing the development of renewables.

While the aim was to simplify and speed up the granting of authorizations for RES plants through the adoption of a single primary legislative act, the draft decree seems to have missed the mark.

After having received a negative opinion from the Council of State, which considered both the procedure and the content to be deficient, inadequate, and incomplete, the draft decree was also received with not a few perplexities by operators and trade associations.  Below are a few examples of the main critical issues encountered.

Among the administrative regimes envisaged for the authorization of RES plants, the sworn declaration of the start of works (DILA) is no longer envisaged, as it is currently envisaged for the authorization of plants with a capacity of less than 1 MW falling within a suitable area. In fact, Article 6 of the Consolidated Text on Renewable Energies provides for only three administrative procedures for the construction of RES plants: free activity, simplified enabling procedure (PAS), and single authorization. 

Article 1, paragraph 1 of the draft decree provides that 'the provisions of the Consolidated Text of the legislative and regulatory provisions on construction pursuant to Presidential Decree No 380 of 6 June 2001 for the purposes of the acquisition of the building permit required for implementation shall remain in force. The draft decree is without prejudice to the acquisition of the building permit referred to in Presidential Decree 380/2001 for the realization of the interventions referred to in this decree'.  The introduction of the reference to the Consolidated Law on Construction constitutes an aggravation, requiring the acquisition of a title that is not required (with the exception of limited cases) by the current regulations.

With regard to revamping and repowering projects, the national regulations currently in force allow renewable plants that have already been installed to be modernized and upgraded without further authorization, even in the presence of landscape constraints, precisely because they are existing plants and have therefore already obtained all the necessary authorizations. While the draft decree stipulates that landscape authorization must also be obtained for these projects if the plant falls in areas protected by the Cultural Heritage and Landscape Code

There is no trace of any specific provision concerning the transitional discipline that would save the proceedings already commenced at the date of entry into force of the Decree as well as a coordination with the Decree on Suitable Areas through the insertion of an interpretative rule that clarifies once and for all that the suitable areas identified ex lege pursuant to Article 20, paragraph 8 of Legislative Decree 199/2021 may be classified as unsuitable by the Regions only following an in-depth and proven preliminary investigation that demonstrates the unsuitability of the area in question.

With regard to the aspect of connections and congestion of applications, the associations demand that the new permitting regulations be well coordinated, for example by introducing stringent selection and priority criteria for screening permitting applications.

These are some of the issues brought to the attention of the sector associations in the hearings held at the Senate Environment Commission and which, it is hoped, the final version of the Consolidated RES Act will take into account in an attempt not to nullify the fundamental opportunity to simplify the authorization procedures for renewable source plants.