The following article explains the authorization procedures for Italian renewables following the introduction of new frameworks regarding renewable energy installations in Italy according to the official decree.
Table of contents
The Aid Decree
On July 14, the Senate renewed its confidence in the Government by definitively approving, in the text dismissed by the Chamber, the bill for the conversion, with modifications, of the Decree-Law no. 50 of 17 May 2022, published in the Official Gazette on 15 July 2022 general series – no. 164 (also known as the “ Aid Decree ”).
This is a measure aimed at adopting measures to combat the systemic effects caused by the Ukrainian crisis, in particular with regard to national energy policies, business productivity, and investment attraction.
With regard to the energy sector, with a view to encouraging the production of energy from renewable sources, articles 6 and 7 of the Aid Decree introduced rules for further simplification of the authorization procedures for the construction and operation of plants powered by renewable sources.
Speeding up identification of suitable areas
Article 6, paragraph 1 of the Aid Decree – in amending article 20, paragraph 4 of Legislative Decree No. 199 of 8 November 2021 (the ” Legislative Decree 199/2021 “) – aims to speed up the process of identifying surfaces and areas suitable for the installation of renewable energy plants, giving the Department for Regional Affairs and Autonomies the possibility of exercising state substitute power in the event of failure by the Regions to adopt laws aimed at delineating suitable areas within the deadline provided for by the legislation in force.
The provision also affects Article 20, paragraph 8 of Legislative Decree 199/2021, extending the number of areas that can be classified by law as suitable for the construction and operation of renewable plants pending the identification of suitable areas by of the Regions.
Specifically, in light of the changes introduced as a result of Article 6 of the Aid Decree:
Sites where there are photovoltaic systems on which substantial modification interventions are carried out, for reconstruction, enhancement or complete reconstruction, also with the addition of storage systems with a capacity not exceeding 8 MWh for each MW of power can be classified as suitable of the photovoltaic system (before the approval of the Aid Decree there was a limit of 3 MW, now raised to 8 MW);
The provision that qualifies as suitable, in the absence of constraints, also extends to biomethane production plants: (a) agricultural areas within 500 meters of industrial, artisanal and commercial areas, including SIN, as well as quarries and mines; (b) inland areas or within 500 meters of industrial plants and factories; and (c) the adjacent areas within 300 meters of the motorway network (before the approval of the Aid Decree, this provision was applicable only to photovoltaic systems);
The areas not included in the perimeter of the assets subject to protection pursuant to Legislative Decree no. 42 of January 22, 2004 (Code of Cultural Heritage and Landscape – the “ Legislative Decree 42/2004 ”), nor falling within the range of respect for protected assets or of notable public interest referred to in part two and art. 136 of Legislative Decree 42/2004.
Exceptions to the ordinary authorization procedure
It should be remembered that Article 22 of Legislative Decree 199/2021, with reference to the construction and operation of plants for the production of energy from renewable sources in suitable areas, has introduced some exceptions to the ordinary authorization procedure. Specifically, with reference to these projects:
- The competent authority in landscape matters expresses itself with a mandatory non-binding opinion and once the deadline for the expression of the non-binding opinion has expired, the competent administration in any case provides for the authorization application;
- the terms of the authorization procedures for installations in suitable areas are reduced by one-third.
More on exemptions
Article 6 of the Aid Decree has explicitly extended the scope of these exceptions, stating that they apply to electrical infrastructures connecting renewable energy plants and to those necessary for developing the national transmission grid, provided they are strictly functional to increasing energy production from renewable sources.
The decree also adopts incentive measures, specifically in paragraphs 2 quarter and quinques, to encourage new projects and interventions that promote social, economic, and productive development in municipalities with areas under concession for geothermal energy production. Starting January 1, 2023, holders of concessions for constructing and managing these plants, under Legislative Decree no. 287 of December 29, 2003, and law no. 99 of July 23, 2009, must pay a contribution of €0.05 for each kilowatt hour of electricity produced by the corresponding geothermal plant. Within ninety days of the Aid Decree’s entry into force, the Minister of Economic Development will issue a decree.
The decree also introduces further simplifications for tourist and spa facilities. For 24 months from the conversion law’s entry into force, these facilities can implement new photovoltaic projects with ground-mounted modules up to 1,000 kWp using the administrative DILA (sworn declaration of start of works) regime. These projects must be aimed at using self-produced energy for the needs of the facilities, located outside historical centers, and not under protection according to Legislative Decree 42/2004 (see Article 6, paragraph 2 septies of the Aid Decree).
Finally, Article 6 of the Aid Decree requires the Ministry of Culture, within sixty days of the conversion law’s entry into force, to establish uniform criteria for evaluating renewable energy plant projects. This aims to streamline proceedings and ensure that any negative assessments are well-founded, reflecting stringent and proven needs for cultural or landscape protection, in line with the specific characteristics of different territories.
Article 7
Article 7 of the Aid Decree introduces significant innovations, simplifying procedures for authorizing plants that produce electricity from renewable sources.
These changes primarily affect projects that require an Environmental Impact Assessment (EIA) under state jurisdiction.
Specifically, the decree establishes that in the authorization procedures for renewable energy plants, if the project requires an EIA at the state level, the Council of Ministers’ resolutions will replace the EIA provision for all purposes, even in cases of conflicting assessments by the relevant environmental authorities.
The Presidents of the concerned Regions and Autonomous Provinces participate in the Council of Ministers’ meetings to express the position of their administration and the non-state administrations involved in the authorization process, but they do not have voting rights.
The Council of Ministers’ resolutions are then incorporated into the single authorization procedure, which the competent administration must conclude within sixty days. If the Council of Ministers decides to issue the EIA provision and the sixty-day period passes without action, the authorization is automatically deemed issued.
More on Article 7
Furthermore, article 7 of the Aid Decree intervenes in various ways on the authorization procedures connected to the construction and operation of renewable plants, providing that:
- for the construction of plants other than those fueled by biomass, including biogas plants and plants for the production of biomethane of new construction, and for photovoltaic plants, the proponent, when submitting the application for authorization, can request the declaration of public utility and the affixing of the preordained constraint to the expropriation of the areas affected by the construction of the plant and related works.
- the simplified authorization procedure (PAS) for the construction and operation of photovoltaic systems up to 20 MW located in quarries or lots of quarries not susceptible to further exploitation may also concern the location in “portions of quarries”, it being understood that the same they must not be susceptible to further exploitation.
- with regard to ceased quarries and mines, not recovered or abandoned or in conditions of environmental degradation considered suitable areas pursuant to the law for the installation of plants for the production of electricity from renewable sources, portions of quarries and mines not susceptible to further exploitation.
- with regard to the standard that subjects to PAS the installation of photovoltaic systems with a power of up to 10 MW in floating mode on the water mirror of reservoirs and reservoirs, including water reservoirs in disused quarries, the plants in question can be placed also in the water reservoirs in the quarries in operation (see the modification of article 9 – ter of the Energy Decree).
Furthermore, it is appropriate to point out that with the provisions referred to in Article 7 – bis of the Aid Decree, the deadline for the start of work for the interventions carried out under a qualification issued under Article 12 of the Legislative Decree n. 387 of 29 December 2003 is set for three years from the issue of the relative qualification.
The Aid Decree therefore follows the path already outlined by the Simplifications Decree and the Energy Decree, demonstrating a unitary, albeit fragmented, intention of the legislator towards promoting the consumption of energy from renewable sources.
About the author
Italian-qualified lawyer, Tommaso has fifteen years of extensive experience in domestic, cross-border border, and multi- jurisdiction mergers and acquisitions, joint ventures, corporate finance, and private equity transactions involving both listed and privately held companies. He has particular expertise in transactions in highly regulated activities as well as in the infrastructure sector and, in particular, in the energy, transport, water, and waste sectors. His experience also includes assistance in favor of developers and lenders in relation to development projects in the energy sector, with particular reference to renewable energy assets (solar, biomass, wind, hydrogen) and transport infrastructure (electricity and gas transport, electricity and gas distribution, gas storage and LNG plants). He has extensive experience in the negotiation and drafting of M&A contracts, facility agreements, EPC, O&M, PPA contracts, and supply contracts in the public and private sectors. Tommaso has an LL.M Master’s Degree in Business & Corporate Law at City Birmingham University and has more than 15 years of experience in primary international law firms in London, Milan, and Dubai. Tommaso is an Italian native speaker and is fluent in English and Spanish
