Prepared by Energy Team
On 14 July 2022 the Italian Senate definitively approved the conversion into Law, with amendments, of the Law Decree no. 50 of 17 May 2022, published on the Official Gazette on 15 July 2022, general series no. 164 (also known as the “Aiuti Decree”).
The Aiuti Decree has multiple contents having as common scope the introduction of measures aimed at facing the systematic effects deriving from the Ukrainian crisis in relation to national energy policies, companies’ productivity, and investments’ attractiveness
With reference to the energy sector, in view of incentivizing the production of energy from renewable source, articles 6 and 7 of the Aiuti Decree introduce rules and provisions for furtherly simplifying the permitting process related to the construction and operation of power plants.
In that perspective, article 6, paragraph 1 of the Aiuti Decree has amended article 20, paragraph 4 of the Legislative Decree no. 199 of 8 November 2021 (the “D.Lgs 199/2021”) on the detection of the so called “eligible areas” (aree idonee), attributing to the National Department of Regional Affairs the function to exhort the Regions to accelerate the process aimed at identifying the areas considered as “eligible” for the construction of renewable power plants as well as to replace the same Regions in case these fail to approve the Regional Laws concerning the suitable areas within the terms provided under the D.Lgs 199/2021.
The provision lay down some amendments even with regard to article 20, paragraph 8 of the D.Lgs 199/2021, extending the categories of areas classifiable by Law as “eligible” for the construction and operation of renewable power plants pending the entry into force of the Regional Laws on the detection of the eligible areas.
Particularly, in the light of the changes introduced by article 6 of the Aiuti Decree:
- are classified as “eligible” the sites on which are already installed photovoltaic plants subjected to substantial variation (re-building; re-powering etc.), even with the installation of storage systems having a capacity not greater than 8 MW for each MW of power capacity of the relevant PV plant (before the approval of the Aiuti Decree there was a limit of 3 MW instead of 8 MW);
- are extended to biomethane power plants the provisions classifying as eligible, in absence of any constraint, the following areas: (a) agricultural areas located within 500 meters from industrial or commercial areas, including National Interest Sites, quarries and mines; (b) internal areas or located within 500 meters from industrial facilities; (c) adjacent areas located within 300 meters from the national highway (before the approval of the Aiuti Decree this provisions was applicable only with regard to photovoltaic power plants);
- are included within the eligible areas the sites not falling within the perimeter of the historical and landscape laws and regulation (i.e. Legislative Decree no. 42 of 22 January 2004 – the “D.Lgs 42/2004”).
Article 22 of the D.Lgs 199/2021 provides for some derogation as to the permitting procedures concerning the construction and operation of renewable energy power plants on “eligible areas”. Specifically, in respect of such projects:
- the opinion issued by competent landscape public authority is non-binding and, in any case, the competent authority may grant the authorization even in absence of such landscape opinion;
- the terms for concluding the permitting procedures are reduced by 1/3 compared with the ordinary timescales provided under the relevant normative framework for authorizing the construction and operation of renewable projects.
Article 6 of the Aiuti Decree has extended the field of application of the aforementioned derogations also to the electrical infrastructures for the connection of the renewable energy power plants, providing that these are located on “eligible areas”.
Furthermore, paragraphs 2-quater of the same provision provides that, starting from 1 January 2023, the owners of concessions for the construction and operation of geothermal power plants shall pay an annual fee equal to € 0.05 for each kWh produced through the operation of these plants; these economic resources are then aimed at promoting the realization of projects and investments for the social, economic and productive developments of the Municipalities where the geothermal power plants are located.
As to the modalities and criteria concerning the distribution and the use of such economic resources, these will be governed by a Decree to be enacted, in agreement with the Governors of the interested Regions and having heard the involved Municipalities, by the Ministry of the Economic Development together with the Ministry of Economy and Finance and the Ministry of Ecological Transition within 90 days from the entry into force of the Aiuti Decree (cf. article 6, paragraph 2-quinquies of the Aiuti Decree).
Further simplification measures are then introduced in respect of touristic and thermal facilities for which is provided that, for a 24-month period starting from the entry into force of the Law converting the Aiuti Decree, on ground photovoltaic projects having a power capacity not greater than 1.000 kWp located with the areas of such facilities could be authorized by means of a simplified process: the DILA regime (Dichiarazione di Inizio Lavori Asseverata). This, providing that the produced energy is self-consumed and that the relevant area are located outside the perimeter laid down under the D.Lgs 42/2004 (cf. article 6, paragraph 2-septies of the Aiuti Decree).
Lastly, Article 6 of the Aiuti Decree provides that within 60 days from the entry into force of the conversion Law, the Ministry of Culture would lay down homogenous criteria to be adopted for the renewable energy projects’ assessment. This in view of facilitating the conclusion of such procedures, ensuring that the ground of potential negative assessments would be based on proved and punctual needs of safeguarding cultural or landscaping interests.
Article 7 of the Aiuti Decree set forth significant changes, introducing considerable simplifications related to the renewable power plants’ permitting procedures.
Such changes are linked to renewable projects subject to National Environmental Impact Assessment (“EIA”).
Particularly, is provided that in case a project should be subjected to National EIA, the resolutions enacted by the Council of Ministers replace the EIA (this, even when the competent regional and provincial authorities do not agree with the issuance of the EIA).
The Regional and Provincial environmental authorities could take part to the Council of Ministers meetings, but they do not have voting rights.
The resolutions enacted by the Council of Ministers on the issuance of the EIA are included withing the authorization procedure for the construction and operation of the renewable project which shall be concluded by the competent authorities within the following sixty days. Should the competent authorities fail to observe such term, the authorization is intended as issued (a sort of silence-approval).
Furthermore, Article 7 of the Aiuti Decree amends in various ways the permitting procedures linked to the construction and operation of renewable energy power plants providing that:
- for the construction of renewable power plants different from biomasses, biogas, biomethane and photovoltaic power plants, in the context of the application for obtaining the relevant authorization the operator may ask that the areas interested by the project would be declared of public utility and the establishment of the expropriation constraint (apposizione del vincolo preordinato all’esproprio);
- the simplified authorization procedure (PAS) for the construction and operation of photovoltaic plants having a power capacity up to 20 MW located in caves or lots of caves not further exploitable may be applied even in respect of portion of caves, providing that the latter are no longer exploitable;
- even the portions of caves and mines no longer exploitable can be considered as eligible areas for the construction and operation of renewable energy power plants;
- the provisions subjecting to PAS the construction of floating photovoltaic plants having a power capacity up to 10 MW and built on water reservoirs and basins (sullo specchio d’acqua di invasi e bacini idrici) including the reservoirs of dismissed caves can be applied even in relation to the reservoirs of operating caves (cf. amendment to article 9-ter of Decreto Energia).
In addition, it is worth highlighting that article 7-bis of the Aiuti Decree has provided a 3-year term starting from the issuance of the authorization title for the commencement of the construction works related to interventions authorized pursuant to article 12 of the Legislative Decree no. 387 of 29 December 2003.
The Aiuti Decree could be then be placed in the wake of the changes already provided under the so called Decreto Semplificazioni and Decreto Energia, so proving a unitary, although fragmented, objective of the Italian Legislator: the promotion of the consumption of energy from renewable energy sources.
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