Prepared by Energy Team
- Introduction of the rebuttable presumption that renewable energy projects are of overriding public interest for the purposes of the relevant Union environmental legislation.
- Simplifications of the permitting processes concerning the construction of on-roof renewable power plants and of those installed on artificial structures.
- Quicker authorization procedures for the repowering of existing renewable power plants.
- Quicker and easier installation of renewable heat pumps.
* * *
On 22 December 2022 the EU Council has approved the proposal formulated by the EU Commission on 9 November 2022 on a new temporary emergency regulation to accelerate the deployment of energy from renewable sources (EU Regulation 2022/2057, hereinafter the “Regulation”).
The Regulation has been published on the European Union Official Journal of 29 December 2022 and introduces several measures aimed at rationalizing and speeding up the permitting processes applicable to renewable energy projects with a view to facing the criticalities concerning energy supplies deriving from the current international contingent situation and the resulting consequences for consumers in terms of increasing exposure to volatile electricity prices.
In such context the Regulation includes both, urgent actions having a general scope, such as the introduction of a relative presumption that renewable energy projects are of overriding public interest for the purposes of the relevant environmental legislation as well as the simplification of the permitting framework for the repowering of renewable plants, and more specific measures concerning, by way of example, the granting of shorter and faster authorizations for photovoltaic installations to be built on existing rooftops or on existing or future artificial structures.
The Regulation is immediately applicable in all Member States and is valid for eighteen months (i.e., starting from 29 December 2022 until August 2024), without prejudice to the possibility for the European Commission to request the Council to extend its validity.
* * *
Overriding public interest
As anticipated one of the main measures consists in the introduction of the rebuttable presumption that renewable energy projects are of overriding public interest and serving public health and safety for the purposes of the relevant Union environmental legislation.
Particularly, according to Article 3 of the Regulation:
- the planning, construction and operation of plants and installations for the production of energy from renewable sources, and their connection to the grid, the related grid itself and storage assets shall be presumed as being in the overriding public interest and serving public health and safety when balancing legal interests in the individual case (cf. Art. 3, Par. 1 of the Regulation);
- Member States shall ensure, at least for projects which are recognised as being of overriding public interest, that in the planning and permit-granting process, the construction and operation of renewable plants and installations and the related grid infrastructure development are given priority when balancing legal interests in the individual case. Concerning species protection, this provision shall only apply if and to the extent that appropriate species conservation measures contributing to the maintenance or restoration of the populations of the species at a favourable conservation status are undertaken and sufficient financial resources as well as areas are made available for that purpose (cf. Art. 3, Par. 2 of the Regulation).
The cornerstone of this provision is quite clearly the need to eliminate bottlenecks in the authorization procedures, requiring the relevant public actors, within the planning and authorization processes, that when balancing the interests at stake, priority be given to the construction of the relevant renewable power plants.
In respect of the protection of species, the Regulations specify that such priority should be given only if, and to the extent that, appropriate conservation measures are undertaken that contribute to the maintenance or restoration of species populations to a satisfactory conservation status and sufficient areas and financial resources are made available for this purpose.
Solar energy and self-consumption
The Regulation also intervene on the maximum duration of authorization procedures for the construction and operation of renewable facilities by establishing that this should not exceed three months.
Namely, based on the provisions set forth under Article 4 of the Regulation:
- the permit-granting process for the installation of solar energy equipment and co-located energy storage assets, including building-integrated solar installations and rooftop solar energy equipment, in existing or future artificial structures, with the exclusion of artificial water surfaces, shall not exceed 3 months, provided that the primary aim of such structures is not solar energy production. Such installations of solar energy equipment shall be exempted from the requirement, if applicable, of being subjected to a determination whether the project requires an environmental impact assessment, or from the requirement to carry out a dedicated environmental impact assessment (cf. Art. 4, Par. 1 of the Regulation);
- Member States may exclude certain areas or structures from the provisions of paragraph 1, due to reasons of cultural or historical heritage protection, or for reasons related to national defence interests or safety (cf. Art. 4, Par. 2 of the Regulation).
With this provision the European Union, in line with its previous directives and regulations on the promotion of the use of renewable energy sources, once again emphasizes the diriment role of solar energy in the context of the transition to a climate-neutral economy and does so by dedicating an ad hoc discipline to renewable installations on roofs and artificial structures.
In such perspective, faster authorization procedures are introduced for these types of installations, which, given their characteristics, are generally less complex than ground-mounted installations and can quickly contribute to mitigate the effects of the current energy crisis; to the effect, on one hand, is provided a maximum time limit of 3 months for the conclusion of the authorization processes and, on the other hand, is introduced the possibility for such a category of installations to not undergo environmental impact assessments (given that, on the basis of the clarification provided within the Regulation such projects are unlikely to raise concerns related to competing uses of space or environmental impact).
Furthermore, Article 4 of the Regulation aims to simplify and speed up the construction and operation of small plants (i.e., with a capacity of 50 kW or less), including those intended for self-consumption, by providing that, with regard to the authorization procedures related to such power plants, the so-called silence-approval mechanism shall be applied if within one month from the submission of the application by the relevant operator the competent public authority has not provided any feedback.
In this way, the authorization processes related to such plants are further streamlined with the aim of rapidly reducing the overall demand for natural gas and encouraging self-consumption of energy from renewable sources to ensure less exposure of consumers to the volatility of electricity prices.
Repowering of existing renewable power plants
The EU Regulation is then focused on the repowering of existing renewable power plants underlining that these are an option for rapidly increasing renewable energy production
Even in such case, as already seen for on-roof and on artificial structures power plants authorization procedures’ duration limits are provided.
Specifically, pursuant to Article 5 of the Regulation:
- the permit-granting process for the repowering of projects, including the permits related to the upgrade of the assets necessary for their connection to the grid where the repowering results in an increase in capacity, shall not exceed 6 months including environmental impact assessments where required by relevant legislation;
- where the repowering does not result in an increase in the capacity of the renewable energy power plant beyond 15%, and without affecting the need to assess any potential environmental impacts, grid connections to the transmission or distribution grid shall be permitted within 3 months following application to the relevant entity unless there are justified safety concerns, or there is technical incompatibility with the system components;
- where the repowering of a renewable energy power plant, or the upgrade of a related grid infrastructure which is necessary to integrate renewables into the electricity system, is subject to a determination whether the project requires an environmental impact assessment procedure or an environmental impact assessment, such prior determination and/or environmental impact assessment shall be limited to the potential significant impacts stemming from the change or extension compared to the original project.
Lastly, the Regulation introduces some provisions aimed at speeding-up the authorization processes connected to the installation of renewable energy heat pumps in view of replacing natural gas and other fossil fuel-based boilers with a renewable heating solution.
In this perspective, Article 7 of the Regulation provides that:
- the permit-granting process for the installation of heat pumps below 50 MW electrical capacity shall not exceed 1 month, whilst in the case of ground source heat pumps it shall not exceed 3 months;
- unless there are justified safety concerns, further works are needed for grid connections or there is technical incompatibility of the system components, connections to the transmission or distribution grid shall be permitted following notification to the relevant entity.
The ratio of such provisions is that, thanks to a quicker and easier installation of heat pumps, the increased use of renewables in the heating sector, which accounts for almost half of the Union’s energy consumption, will contribute to the security of supply and help tackle a more difficult market situation.
* * *
The recent Regulation is in the wake of the simplifications and incentives promoted at the EU level to promote a greater diffusion of renewable energies with the aim of mitigating the risks in terms of energy supply descending from the Russian-Ukrainian conflict.
It should be noted that part of the simplifications introduced as a result of the Regulation appear to have already been – albeit partially – transposed at the National level (among others, the Simplification Decree, the Simplification Decree bis or the Aiuti Law Decree, discussed extensively in our previous Newsletters and through which the authorization processes related, among others, to the construction of renewable plants with modules placed on the roofs of buildings have been considerably simplified and accelerated – for further details https://blog.pwc-tls.it/en/category/energy-outlook-en/) as well as in the field of case law (inter alia, Council of State, Sec. IV, April 12, 2021, no. 2983; Constitutional Court, Judgment no. 106 of 2020 regarding the favour accorded to energy sources by National and European regulations in the evaluation of the interests involved in the context of authorization processes for the construction and operation of plants fed by renewable sources).
In any case, taking into account the magnitude of the energy crisis and the degree of its social, economic and financial impact, it appears crucial at this stage that the above-mentioned simplifications be promptly and fully incorporated into the practice of the public authorities/bodies involved in the permitting processes and, in particular, by local authorities, so to concretize the benefits associated with the increase of sustainable energy production and face the risks in terms of supply highlighted at the Euro-unitary level. In this context, the recent EU Regulation could represent a further boost in this direction.
For a deeper discussion, please contact:
PwC TLS Avvocati e Commercialisti