Basilicata Region: Constitutional Court rejects some regulatory provisions regarding the authorization renewable power plants

Prepared by Energy Team

By means of judgement no. 106 of 8 April 2020 (published on 5 June 2020) the Italian Constitutional Court declares unconstitutional several provisions set forth under the Basilicata Regional Law no. 4 of 13 March 2019 governing permitting aspects related to the construction and operation of renewable power plants in the Basilicata Region.

Even though all the provisions challenged before the Constitutional Court by the Italian Presidency of the Council of Ministers were already been repealed by the Basilicata Region through the Regional Law no. 22 of 6 November 2019, the Constitutional Court examined the grounds raised by the Italian Presidency anyway, considering that these provisions have been valid and in force for more than six months (i.e. from March 2019 up to November 2019) and may have been applied during that period.

Particularly, the provisions set forth under the Basilicata Regional Law no. 4 of 13 March 2019 which have been declared unconstitutional are the following:

  • articles 9 and 10, providing, as mandatory safety requirement to be observed in order to commence the authorization processes related to the construction and operation of wind farms, the observance by the operators of specific minimum distances between the wind farm to be constructed and other wind farms as well as between the wind farm to be constructed and the houses and municipality roads. The Constitutional Court declared these provisions unconstitutional due to the circumstance that these do not provide the fulfillment of a prior verification and, therefore, an adequate and concrete analysis of all the relevant interests involved in the execution of a wind farm project, in breach of the principles laid down at National level with particular reference to the principle deriving from the EU regulatory framework and concerning the maximum deployment of energy from renewable sources.
  • article 12, according to which in case of delays not attributable to the relevant operator, upon the submission of an application, it was possible to obtain a postponement up to a maximum of 60 days for submitting the documentation required under the Regional Energy Environmental Plan (Piano di Indirizzo Energetico Ambientale Regionale – PIEAR) in order to get the issuance of the Regional authorization for the construction and operation of the renewable plant. The Constitutional Court underlined that the Italian Environmental Code (i.e. the Legislative Decree no. 152 of 3 April 2006) regulates a suspension of these terms up to 180 days (even though only before the convening of the Steering Committee and not after). In this context the postponement of the deadline provided by the Basilicata Region has been deemed unconstitutional because it adds further and unreasonable burdens to the several administrative fulfillments already laid down at National Level in relation to the authorization process;
  • article 13, paragraph 3, providing, in relation to the process aimed at issuing the single authorizations for the construction and operation of RES plants, a maximum threshold to the quantity of electricity to be produced through renewable energy sources, pending the enactment of the Regional Energy Environmental Plan. According to the Constitutional Court this provision is in breach of the rules set forth under paragraph 14.5. of the National guidelines (Ministerial Decree of 10 September 2010) considering that the introduction of a maximum threshold, in case of reaching of this threshold, entails the impossibility to commence new authorization processes as well as the suspension of the authorization processes already on going.

This judgement provides two food for thought which may be interesting for the operators involved in the construction and operation of RES power plants.

The first one regards the specifications provided by the Constitutional Court as to the prohibition for the Regions to introduce abstract and mandatory limits linked to the minimum distances to be observed over the Regional territory because in breach of the fundamental principle laid down at EU and National Level concerning the maximum deployment of energy from renewable sources (specification also included in the Constitutional Court judgement no. 286 of 23 December 2019).

According to the Court, the Regions (and the Provinces) are entitled to identify areas and sites not suitable for the construction of RES power plants but this identification shall be made case by case applying the technical and objective principles and criteria set forth under paragraph 17.1., Annex 3 to the National guidelines. Furthermore, the Court specified that the evaluations performed by the Region and concerning the non-suitability of an area require a prior analysis taking into account all the involved interests (e.g. environmental protection, landscape protection, historical-artistic protection, biodiversity protection) which protection is not compatible with the construction, in specific areas, of certain typologies of RES power plants (Constitutional Court judgement no. 86 of 2019). This kind of verification shall be made in the framework of the administrative procedure, which structure allows the analysis of such interests as well as the publicity and transparency of the relevant verifications, in compliance with the principles set forth under article 1 of the Law no. 241 of 7 August 1990 (Constitutional Court judgement no. 69 of 2018).

As a result of the above, in line with the judgement issued by the Constitutional Court, the competent public authorities cannot reject ab origine a RES project without a prior “case by case” adequate analysis even in the light of all the above-mentioned interests involved.

The Constitutional judgement at the stake strengthened considerably the rule provided under the National guidelines, ensuring to the relevant operators the application of the legal certainty principle and the absence of any limitation to their economic initiative which according to article 41 of the Italian Constitution shall be freely exercised; in this way the competent public authorities shall proceed through a thoughtful analysis of all the interests involved in the construction and operation of a RES project. It means that a potential resolution providing a denial to the implementation of a RES project, in order to be considered in compliance with the above mentioned principles and criteria, cannot be simply based on an abstract Regional provision but it shall be duly motivated, proving that has been performed an adequate and balanced analysis of all the interests involved in the implementation of the project. 

A second food for thought regards the specifications provided by the Constitutional Court in relation to the maximum threshold fixed by the Basilicata Region as to the electricity deriving from RES plants.

In this respect the Constitutional Court clarified that the unconstitutionality  of this provision cannot be overcome having regard to article 3, paragraph 6 of the Ministerial Decree 15 March 2012, providing that the Regions are authorized to introduce maximum thresholds to energy production for each renewable source for an amount not lower than 1.5. times the targets envisaged under the Regional Energy plans for each renewable source. According to the Court this provisions represent a mere corollary of the faculty granted to the Regions to identify areas not suitable for the installation of RES power plants, with a view to the need of harmonizing the environmental and landscape protection policies with those ones related to the promotion of the use of renewable energy sources.

The Constitutional Court specified that by means of energy planning provisions compliant with the assigned minimum threshold of RES production (so called “burden sharing”) the Regions may identify those sites which are not suitable to the installation of RES power plants due to environmental or landscape reasons. This identification differently from the provisions set forth by the Basilicata Region and declared unconstitutional (“pending the enactment of the Regional Energy Environmental Plan”) shall always be based on a concrete an in-depth analysis and verifications.

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