The Semplificazioni Decree no. 77/2021 and the Law Decree no. 92/2021: what’s next in the Italian Energy Sector

Prepared by Energy Team

Published on 1 June 2021 and headed “Governance of the National Recovery and Resilience Plan and first measures to strengthen administrative structures and accelerate and streamline procedures” the Law-Decree no. 77 of 31 May 2021 (also known as the Semplificazioni Decree”, from now on, the “Decree”) set forth the national regulatory framework aimed at simplifying and facilitating the achievement of the targets and objectives provided under the National Recovery and Resilience Plan (“PNRR”), the National Plan for Complementary Investment and the 2030 National Integrated Energy and Climate Plan (“PNIEC”) (cf. art. 1, “Principles, purposes and definitions”).

In that respect, a new Annex I-bis was included in Part II of the Legislative Decree no. 152 of 3 April 2006 (the “Environmental Code”), providing a list of the works, plants and infrastructures needed for achieving the targets set by the PNIEC:

  • new renewable power plants to produce energy and energy vehicles from renewable sources and waste, as well as modernization, integral reconstruction, reconversion and increase of current capacity in relation to:
    • power production: hydroelectric, geothermal, wind and photovoltaic, concentrating solar power, energy production from the sea and bioenergy production from solid biomass, bioliquids, biogas and waste;
    • geothermal energy production: geothermal, solar thermal and concentrating solar power plants, energy production from solid biomass, bioliquids, biogas, biomethane and waste;
    • production of sustainable fuels.
  • infrastructures and facilities for the hydrogen production, transport and storage;
  • energy efficiency interventions (energy requalification, high efficiency cogeneration plants, waste heat recovery plants);
  • development interventions on the National Transmission Grid and upgrading of distribution grids.

Pursuant to article 7-bis of the Environmental Code (as amended by the Decree), the aforementioned projects, as well as the relevant infrastructures required for the achievement of the energy transition targets, shall be considered of public utility, needed and urgent (sono definite di pubblica utilità, necessità ed urgenza).

In order to speed up and simplify the realization of the above-mentioned interventions, the Decree has also introduced significant amendments in relation to the normative and regulatory provisions related to the following areas:

  • Environmental Impact Assessment(“EIA”) procedure, EIA Screening(“Screening”)and landscape provisions;
  • repowering of existing plants and substantial modifications;
  • agricultural areas and incentives;
  • contiguous areas;
  • amendments to the administrative procedure;
  • authorization titles – Simplified Authorization Procedure (“PAS”)” Sole Regional Authorization Procedure (“PAUR”) and Sole Environmental Procedure (“PUA”).

1. EIA and Screening procedures and landscape provisions

1.1.  EIA procedure
1.1.1.  Introduction of EIA Technical Committee for PNRR-PNIEC projects

The Decree has amended art. 8 of the Environmental Code, introducing the so called “PNRR-PNIEC Technical Committee”.

The Committee is essentially leaded by the Ministry for Ecological Transition (“MiTE”) and is charge in relation to the EIA procedures falling under the State jurisdiction and concerning the projects included in the PNRR as well as in relation to the projects financed by means of the complementary fund and the projects implementing the PNIEC, as identified under Annex I-bis of the Environmental Code.

According to the Law Decree no. 92 of 23 June 2021 (the “DL 92/2021”), the PNRR-PNIEC Technical Committee will commence its activities starting from 31 July 2021 (i.e. as to the EIA applications submitted starting from of 31 July 2021).

In respect of the projects falling under the State jurisdiction and concerning the PNRR and PNIEC interventions:

  • the EIA Technical Committee shall express its opinion within 30 days from the conclusion of the consultation phase and, in any case, within 130 days from the date of publication of the documentation related to the project, preparing the draft EIA resolution;
  • in the following 30 days, upon the obtaining the approval of the competent general director of MIBACT within 20 days, the MiTE General Director shall issue the EIA resolution. Whether the terms for the conclusion of the EIA procedure should not be observed, 50% of the preliminary investigation fees (diritti di istruttoria) are automatically reimbursed to the applicant;
  • in case the EIA Technical Committee should fail to complete the procedure within the aforementioned terms, the EIA resolution can be issued – upon the obtainment of the ISPRA opinion within a 30-day period – by a substitutive office appointed pursuant to article 2 of Law no. 241 of 7 August 1990 (titolare del potere sostitutivo). If the procedure should fail due to the inactivity of the General Director of the MiTE and the competent General Director of the Ministry of Cultural Heritage and Activities (“MiBACT”), the substitute power holder shall issue the measure within the following 30 days.

It should be noted that the approval issued by the competent MiBACT General Director may encompass even the landscape authorization (this, whether the project drawings details allows the preparation of the landscape report).

1.1.2. Terms reductions and public consultation

With reference to the amendments made to articles 23 and 24 of the Environmental Code, it should be noted that:

  • the deadlines to be observed by the public authority for checking the completeness of the received documentation and the successful payment of the required fees (contributo di istruttoria) has been extended from 10 to 15 days;
  • as to the PNRR and PNIEC projects, the term within which any interested subject may have access to the project and related documentation and submit observations to the competent authority has been reduced from 60 to 30 days (for all other projects the term is 60 days).

Within the same term (i.e. 30 days) the relevant public authorities and bodies shall digitally provide their opinions and, in the following 15 days, the applicant may file its replies to the observations and opinions received by the competent authority.

If, as a result of the consultation or of the filing of replies, it emerges the need to modify or integrate the original project details, the competent authority, within the following 20 days (or within the following 10 days for PNRR and PNIEC projects) may, only once, set up a term not exceeding a further 20 days, for the digital transmission of the modified or integrated project.

If the applicant does not comply within the fixed terms, the application is considered rejected.

  • In case the applicant does not fail to comply within the fixed terms, the competent authority, once received the additional required documentation, will publish it on its website and, upon the publication of a notice, will launch a new public consultation, halving the related timelines as to PNRR and PNIEC projects.
1.1.3. Identification of EIA competent authority

The Decree has modified art. 7 bis of the Environmental Code, providing that – in case of projects or interventions envisaging several planning elements (elementi progettuali), corresponding to different typologies of interventions falling within the State EIA or Screening and in other part within the Regional EIA or Screening – the applicant shall digitally submit to MiTE and the involved Region a communication providing the subject/title of the project or intervention, the planning element identified as the main one, other planning elements involved and the competent authority (State or Region) identified for carrying out the EIA or EIA Screening procedure.

Within 30 days from the receiving of the communication, the Region may share with the MiTE and with the applicant its opinion on the identified competent authority and, in the  following 30 days, the MiTE shall inform the Region and the applicant about which competent authority has been identified for carrying out the relevant authorization processes..  

In case the MiTE fails to provide its opinion within the aforementioned term, the Region opinion (or the applicant opinion, in case the Region fails to express its) is considered as approved (so called, silence-approval rule).

Lastly, it should be noted that the Screening and EIA procedures for photovoltaic plants with a capacity exceeding 10 MW will hereinafter be under the State competence. Moreover, DL 92/2021 has provided that this procedure “applies to applications submitted starting from 31 July 2021”.

1.2. Screening and Prior Consultation Process modifications

By amending articles 19 and 20 of the Environmental Code, the Decree has introduced measures aimed at speeding up the EIA Screening procedures (whether of State or Regional competence):

  • anyone who is interested in submitting observations on the preliminary environmental study and the Screening attached documentation can do this within 30 days from the publication on the competent authority website (before the term was 45 days);
  • the competent authority may ask the applicant to be provided with clarifications and integrations for the purpose to not subject the project to the EIA procedure.

In this case, the applicant may request, once only, the suspension of the terms, for a period not exceeding 60 days, for the filing of the integrations and clarifications requested.

Should the applicant fail to submit the requested documentation within the imposed terms, the application is considered rejected.

The competent authority shall decide on any request for environmental conditions made by the applicant within 30 days with a positive or negative decision, excluding any further discussion or proposal for modification;

  • before the submission of the project, the applicant may ask the competent authority a preliminary consultation (consultazione preventiva); in this case, the competent authority shall express its opinion within the following 30 days; prior consultation step may also apply to PNRR-PNIEC projects falling within the state’ competence and no longer only to regional ones.
1.3.  Landscape provisions

In order to allow an actual speeding up and implementation of the interventions envisaged under the PNRR, the Decree set up a special Superintendence within the MIBACT, having as scope safeguarding cultural and landscape assets whether these fall within the PNRR interventions subject to State EIA procedure or within the territorial competence of at least two peripheral offices of the Ministry.

2. Repowering of existing plants and substantial variations

The Decree has amended art. 5 of Legislative Decree no. 28 of 3 March 2011 (the “Legislative Decree 28/2011”), with specific reference to the regulations for repowering interventions, identifying the interventions that can be defined as “non-substantial” and for which it is sufficient, for authorization purposes, to submit a Communication to the Municipality.

In particular, the following can be defined as “non-substantial”:

  • interventions on photovoltaic and hydroelectric plants that, even in case of modifications to the technological solution used, do not involve changes in the physical dimensions of the equipment, the volume of the structures and the plants’ area, nor of the connection works regardless of the electrical capacity resulting from the intervention;
  • interventions on wind farms which, regardless of the nominal capacity resulting from the modifications, are carried out on the same site and which involve a minimum reduction in the number of wind turbines with respect to those already existing or authorized. The new wind turbines, in view of an increase in their diameter, must have a maximum height (i.e. the height above ground that can be reached from the extremity of the blades) not exceeding the maximum height above ground that can be reached from the extremity of the blades of the existing wind turbine multiplied by the ratio between the diameter of the rotor of the new wind turbine and the diameter of the existing wind turbine.

According to the Decree, in any case the “non-substantiality” of an intervention does not exclude the potential application of Screening and/or EIA procedures (where applicable considering the characteristics of the project). This should be matched with the recent provisions set forth under art. 4, par. 6 bis of Legislative Decree 28/2011, according to which “in case of variation deriving from complete reconstructions, renovations, reactivations and repowering, the EIA is limited to the environmental impact produced by these variations”.

3. Agricultural areas and incentives

The Decree modifies art. 65 of the Law Decree no. 1 of 24 January 2012  (the “DL 1/2012”), providing that some kinds of plants, with modules placed on the ground in agricultural areas, will be able, if authorized with Sole Authorization, Simplified Authorization Procedure “PAS” or Communication to the Municipality, to benefit from incentives.

According to art. 65 (as amended by the Decree), the following plants are eligible to benefit from incentives:

  • photovoltaics to be built on areas declared as sites of national interest;
  • photovoltaic plants built on restored landfills and caves for which a certificate of completion of recovery and environmental restoration activities has been obtained;
  • agrovoltaics with integrative solutions with vertical mounting of the modules, in order not to compromise the continuity of agricultural cultivation activities (new feature introduced by the Decree).

4. Contiguous areas

The Decree provides for some modifications relating to the role and functions of the MIBACT within the Sole Authorization procedure provided for by art. 12 of Legislative Decree no. 387 of 29 December 2003 (the “Legislative Decree 387/2003”).

In particular, the following amendments have been introduced:

  • the MIBACT will participate in the procedures for the Sole Authorization relating to projects both located in areas subject to protection, also in progress, pursuant to Legislative Decree no. 42/2004, and in the relevant contiguous areas;
  • the opinion expressed by MIBACT in these procedures will be mandatory but not binding;
  • in case, during a Sole Authorization procedure concerning projects located in areas contiguous to protected areas, the MIBACT express its denial, it will not be possible to activate the opposition procedure by the opposing Administration provided for by art. 14 quinquies of Law no. 241/1990.

The purpose of the aforementioned regulatory interventions is to overcome the issues emerged, in some regions more than others, in relation to the obstructions entailed by the MIBACT during the authorization procedures.

5. Amendments to the administrative procedure

The Decree introduces some modifications to the regulations governing the administrative procedure pursuant to Law 241/1990, which – although indirectly – also affect the authorization procedures for the construction and operation of renewable energy plants.

The main amendments introduced by the Decree are summarized below.

5.1.  Substitute power (art. 2, Law no. 241/1990)

The governing body will identify, among the top management figures or organizational departments, the subject to whom this power will be assigned. In the event of failure to do so, the power is deemed to be assigned to the general manager or, failing this, to the highest-ranking official.

Once the deadline for the conclusion of the procedure has unsuccessfully expired, upon request of the applicant or ex officio, the person in charge of the procedure may exercise the substitutive power.

5.2.  Consent silence – certificate (art. 20, Law no. 241/1990)

In case the silence-approval rule applies (silenzio-assenso), the private party may request the competent public authority to issue a certificate of acceptance of the request.

In case the public authority fails to provide this certificate within the following 10 days, the certificate may be replaced by a self-certification.

5.3. Preliminary notice of rejection (art. 10-bis, Law no. 241/1990)

Art. 6 of the Environmental Code has been modified providing that for Screening and EIA procedures and for requests for preliminary assessment of modifications, extensions or technical adjustments aimed at improving the environmental performance of projects, the preliminary notice of rejection provided for by art. 10-bis of Law no. 241/1990 will no longer be applicable.

The ratio behind this provision is not crystal clear: as a matter of fact, the notice of rejection represents a guarantee for the private individual/applicant, putting the latter in the position to provide the relevant public authority with integrations and clarifications, this in order to prevent the definitive rejection of its request.

5.4.  Ex officio annulment (art. 21-nonies, Law no. 241/1990)

The time limit for the ex officio annulment of an illegitimate measure is reduced from 18 to 12 months: this in order to protect the private expectations and to increase the legal certainty linked to administrative resolutions.

6. Authorization titles: PAS, PAUR e PUA

The Decree has introduced some measures aimed at simplifying and accelerating also the procedures for obtaining further authorization titles. In particular, reference is made to the following main changes:

a.  PAS up to 10 MW (art. 6, new para. 9-bis, Legislative Decree 28/2011)

PAS can be used for the construction and operation of photovoltaic plants having all the following features:

  • capacity up to 10 MW;
  • connected to the medium voltage electricity grid;
  • located in areas of industrial, productive or commercial use.

In these cases, the thresholds provided for the activation of the procedure of regional screening are raised to 10 MW (therefore below this threshold, for these kinds of plants, it will not be necessary to activate a Screening procedure), provided that the applicant includes during the application phase a self-declaration certifying that the plant is not located in an unsuitable area as identified by the Region in accordance with the Ministerial Decree of 10 September 2010 (the “Guidelines”).

b. PAUR (art. 27 bis, Environmental Code)

With the introduction of art. 26 bis to the Environmental Code, related to projects subjected to regional EIA, before submitting the PAUR application, the applicant may request the commencement of a preliminary phase aimed at defining the information to be included in the environmental impact study, the relative level of detail and the definition of the conditions for obtaining authorizations, agreements, concessions, etc., by transmitting the preliminary environmental study and the project in electronic format.

This phase should support the private party/applicant to have all the necessary information and details so to prevent unexpected blocks in the subsequent phases.

In addition to the above, certain procedural deadlines provided for by art. 27-bis of the Environmental Code relating to the obtaining the PAUR have been reduced.

In the light of the above, a speeding up of the timescales for obtaining the PAUR could be achieved.

c. PUA (art. 27, Environmental Code)

The Decree modifies article 27 of the Environmental Code related to the regulation of the PUA, providing that:

  • in case of EIA procedures falling within the State jurisdiction, the applicant may ask the competent authority to encompass within the EIA resolution multiple environmental authorizations provided for by the Environmental Code (e.g. AIA, discharge authorization, landscape authorization, authorization for hydrogeological constraints, anti-seismic authorization, etc.);
  • a project drawn up in compliance with the final project – progetto definitivo, laying down, inter alia, the works to be executed, the expected costs, the relevant timelines as well as each project elements with the indication of their form, type, quality, size and price).

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