Energy & Infrastructure Alert
August.05.2021
To deploy the full potential of the newly approved National Recovery and Resilience Plan (the “PNRR”), on May 28, 2021, the Italian Government approved Law Decree no. 77 on May 31, 2021, so called “Semplificazioni bis” (i.e. Simplification – the “Decree”). On July 28, 2021, both chambers approved the Conversion Law (i.e. “Conversion Law”) no. 108 on July 29, 2021.
The purpose of this paper is to compare the Decree with its Conversion Law to identify the main changes introduced by the new Law as well as to highlight the main provisions substantially reaffirmed by the Conversion Law.
Focusing on the main provisions introduced or reaffirmed by the Conversion Law, it is worth mentioning that Article 17, which amends Article 8, paragraph 2-bis, of the Italian Environmental Code, has remained substantially unchanged. Indeed, it confirms that those projects that are subject to national EIA procedure, which are (i) included in the PNRR, (ii) financed with the complementary fund and (iii) listed under Annex I-bis of Article 18 (the “PNRR - PNIEC Technical Committee Projects”) fall within the competence of the new PNRR - PNIEC Technical Committee (“PNRR - PNIEC Technical Committee”).
Article 18, which definitely modifies article 7-bis of the Legislative Decree no. 152/2006 (“Italian Environmental Code”), introduces the Annex I-bis, which identifies those strategic projects for the energy transition included in the PNRR and which are crucial for meeting the goals of the PNIEC.
The Conversion Law also confirmed the content of Annex I-bis, which lists, inter alia, hydroelectric, geothermal, wind and photovoltaic plants (onshore and offshore); plants for the production of energy from the sea and plants for the production of bioenergy from solid biomass, bioliquids, biogas, residues and waste.
We highlight that the new Conversion Law introduces a new paragraph (i.e. 2-septies) to Article 17 of the Decree, according to which projects included in Annex I-bis may be modified if requested by two thirds of the members of the parliamentary committees competent on the matter.
Hence, according to what has been set forth above, the Conversion Law reaffirms the legal framework outlined by the Law Decree. Therefore, since photovoltaic plants as well as wind plants are listed in Annex I-bis, photovoltaic and wind plants that are of national competence fall under the assessment of the PNRR-PNIEC Technical Committee.
In particular, wind plants with a capacity above 30 MW and, in light of a specific provision substantially unchanged by the new Conversion Law (i.e. Article 31, paragraph 6), photovoltaic plants with a capacity above 10 MW, must undergo EIA and are under the responsibility of the mentioned Technical Committee.
As of today, the appointment of the members of the PNRR-PNIEC Technical Committee has not occurred yet.
Article 20, which concerns the EIA procedure, remained substantially unchanged. In particular, it sets, inter alia, specific deadlines for the adoption of the EIA decision: i) with respect to the PNRR-PNIEC Technical Committee Projects, the PNRR-PNIEC-Technical Committee shall decide within 30 days from the conclusion of the public consultation pursuant to Article 24 of the Environmental Code, which gives the opportunity to those who have interests to raise issues and remarks on the project. In any case, the Commission shall decide within 130 days running from the publication of the documentation necessary for requiring the EIA procedure and listed in Article 23. Within the following 30 days, the General Director of the Ministry for Ecological Transition shall adopt the EIA decision after acquiring the agreement of the General Director of the Ministry of Culture, which shall have been acquired within 20 days. ii) For the other projects that fall within the competence of the State, within a term of 60 days from the conclusion of the public consultation pursuant to Article 24 of the Environmental Code, as previously mentioned, the competent authority will adopt the EIA decision after acquiring the agreement of the General Director of the Ministry of Culture within 30 days. If it is necessary to carry out assessments of complexity, the competent authority, through a reasoned decision, may extend the EIA procedure for an additional 30 days. The competent authority will give timely notice to the proposer of the reasons for the extensions, and the deadline within the final measure will be issued.
In case of inactivity before the conclusion of the procedure by the PNRR-PNIEC-Technical Committee, the subject, which is entitled to substitute powers after the acquisition of the ISPRA’s opinion within 30 days, provides for the adoption of the omitted measure within the following 30 days.
Moreover, in the case of inactivity of the General Director of the Ministry of Ecological Transition, before the conclusion of the procedure by the Committee, or in case of delay of the competent General Director of the MiBACT participating in the procedure, the subject entitled to substitute powers provides for the adoption of the measure within its competence in the following 30 days.
It is worth mentioning that the Conversion Law adds a new paragraph to Article 18 of the Decree (i.e. paragraph 9-bis), according to which Article 6, paragraph 9 of the Environmental Code applies to those non-substantial variations, extension or technical adjustments of projects already authorized that do not involve environmental impact. In particular, the applicant may submit to the competent authority a preliminary assessment identifying the suitable procedure to be applied. Within 30 days, the competent authority notifies the proposer the conclusion of its evaluations, indicating whether the variations, extensions or technical adjustments must be subjected to screening, EIA or neither of them.
Finally, with regard to the EIA screening procedure, we underline that Article 19 of the Conversion Law, by amending Article 19 of the Environmental Code, provides that the applicant of the screening procedure may request 45 days (no longer 60) to suspend the terms and present all the documents and additions requested by the competent authority to avoid subjecting the project to the EIA procedure.
One of the main reforms, introduced by the Decree and substantially reaffirmed by the Conversion Law, regards the “Sole Regional Authorization” (“provvedimento autorizzatorio unico regionale” – “PAUR”) legal framework. Indeed, Article 23 of the Conversion Law definitely introduces a new Article (Article 26-bis) to the Italian Environmental Code. The main purpose of this reform is to accelerate the issuance of the PAUR by introducing a preliminary stage through a preliminary steering committee (Article 14, paragraph 3, of the Law no. 241/1990).
The mentioned steering committee defines the Environmental Impact Studies and identifies all the necessary conditions for the construction and operation of the plant. Indeed, the preliminary steering committee will create clear conditions and responsibilities for each administrative authority. Therefore, under the steering committee, each proposer will elaborate an environmental impact study compliant to the main features, locations and dimensions of the project of the plant. It is worth noting that each entity and administrative authority involved in the procedure will be able to have preliminary knowledge of the project. Hence, the examination phase carried out by each administration, along with the PAUR procedure, will be faster.
Finally, the last paragraph of the Article 26-bis provides the possibility to reduce the duration of the PAUR procedure. In fact, in case of an agreement between all the administrative authorities and entities involved in the procedure, after the preliminary steering committee, they can decide to reduce the terms of the decisional steering committee pursuant to Article 27-bis, paragraph 7, of the Italian Environmental Code by up to half.
Moreover, it should be stressed that the PAUR legal framework has been amended also by Article 24 of the Decree and later confirmed by the Conversion Law. Indeed, such Article by modifying Article 27-bis of the Italian Environmental Code ensures a greater involvement of the “public subject” (“pubblico interessato”) in the PAUR procedure. In fact, inter alia, now the public subject can raise any remarks related to the urban planning variation as well as to the environmental strategic assessment.
Finally, Article 24 of the Decree, as also confirmed by Article 24 of the Conversion Law, introduces the following procedure:
during the steering committee, the competent administration indicates the conditions to be verified for the issuance of the authorization title. The conditions justifying the issuance of the PAUR, as indicated within the steering committee, can therefore be reasonably modified, or integrated for the issuance of the authorization, provided significant criteria emerge in the subsequent procedure. Please note that the Conversion Law provides that the Steering Committee shall be concluded within 90 days from the first meeting, as provided by the Law Decree.
Article 25 of the Convention Law introduces the possibility to request the Ministry of Ecological Transition define the competence of the Screening and EIA when specific projects or interventions involve elements that partly fall within the competence of the State EIA and partly in the regionalEIA . In such cases, the applicant shall send the Ministry of Ecological Transition and the interested Region or Autonomous Province a communication containing (i) the object/title of the proposed project or intervention (ii) the type of project identified as the main one and (iii) the other type of projects involved. In contrast with the Decree, the Conversion Law no longer requires the identification of the competent authority (i.e. State or Region) to perform the Screening or EIA. Indeed, within 30 days from the receipt of the communication, the Region or the Autonomous Province communicates to the Ministry the authority identified as competent for the EIA screening or EIA.
Within the following 30 days, the competent office of the Ministry notifies the applicant and Region or Autonomous Province of the final decision on the competent authority, to which the applicant will have to submit the application to start the procedure.
Once this term expires, the approval of the Ministry is considered to be acquired on the position formulated by the Region or Autonomous Province.
Chapter V, which consists only of article 29, ("Special Superintendence for the PNRR and other urgent measures for the implementation of the PNRR") is conceived to ensure the most effective and timely implementation of the interventions of the PNRR. To this end, the Ministry of Culture has now set up the Special Superintendence for the PNRR (“Special Superintendence”), namely an office of general executive level, operational until December 31, 2026. Such Special Superintendence is in charge of protecting cultural and landscape assets in cases where these (i) are affected by the interventions provided for by the PNRR subject to EIA at state level or (ii) fall within the territorial competence of at least two peripheral offices of the Ministry. The special Superintendence also makes use of the Archaeology, Fine Arts and Landscape Superintendencies for the preliminary investigation. For necessity and to ensure the timely implementation of the PNNR, the Special Superintendency may, in relation to further strategic interventions (in addition to those indicated above), exercise the powers of avocation and substitution powers vis-à-vis the Archaeology, Fine Arts and Landscape Superintendencies. Thus, this provision gives the Special Superintendency broad discretionary powers, provided that the measures that will be adopted in the exercise of these avocation powers are explained.
Article 30, amended from the original version, provides now that the Ministry of Culture (“MiBACT”) participates in the “Sole Authorization Procedure” (“AU”) of projects concerning plants powered by renewable sources, including now (and initially omitted by the Legislator) the connected works and infrastructures indispensable to the construction and operation of the plants, located in areas subject to protection, also in progress, pursuant to Legislative Decree no. 42/2004 (Cultural Heritage Code), as well as in areas adjacent to those subject to protection (noting in the latter case, however, the opinion expressed by the MiBACT is non-binding).
Also, Article 31 has been amended with the insertion of the new “0a) comma”, which provides that electrochemical storage plants be operated in combination with electricity production plants powered by renewable sources are, as of now, authorized by Simplified Authorized Procedure” (“PAS”), if the electricity production plant powered by renewable sources is already existing or authorized, even if not yet in operation, and if the electrochemical storage plant does not involve occupation of new areas.
A significant amendment has been made to paragraph 2 of the article, increasing to 20 MW (from 10 MW as it was in the original text) the maximum threshold for which photovoltaic plants connected to the medium voltage grid and located on industrial and/or commercial areas can be authorized though a PAS, and so photovoltaic plants be located on landfills (or closed and restored landfill lots) and quarries (or quarry lots not susceptible to further exploitation, for which the Authority responsible for issuing the authorization has certified the completion of the environmental recovery and restoration activities provided for in the authorization title, in compliance with current regional regulations).
However, the fact that the PV plants must be connected to the medium voltage grid may cause, under the technical point of view, severe limitations to the factual applicability of the PAS procedure.
For photovoltaic plants to be located on industrial and commercial areas as well as on exhausted landfills and quarries, as well as SIN, the threshold for the EIA Screening procedure is set at 10 MW (Art. 31, par 7-bis and 9-bis).
Paragraph 2-quarter is also added, amending the Decree of the Ministry of Economic Development of May 19, 2015, which, in order to minimize the burdens on citizens and businesses, provides a single model for the construction, connection and operation of small photovoltaic systems integrated on buildings, providing as of now that the installation can also take place on structures or artifacts other than buildings or on the ground. Moreover, the scope of the aforementioned Decree is extended to small PV plants installed to support radioelectric plants (regulated by Article 87 of Legislative Decree no. 259/2003) placed on structures above ground other than on buildings.
Paragraph 5 introduces a derogation to Decree-Law no. 1/2012, allowing access to state incentives pursuant to Legislative Decree no. 28/2011 for agrovoltaic plants that adopt innovative integrative solutions with the assembly of the modules elevated from the ground, also providing for the rotation of the modules. However, so as not to compromise the continuity of agricultural cultivation activities and pastoral activities, it also allows the application of digital and precision farming tools. Access to incentives is, however, subject to the simultaneous implementation of monitoring systems that make it possible to verify the impact on crops, water savings, agricultural productivity for different types of crops and the continuity of the activities of the farms concerned.
Article 31-bis introduces simplification measures for biogas and biomethane plants establishing that by-products used as feedstock for biogas plants constitute raw materials eligible for recognition as advanced biofuel pursuant to the Decree of the Minister of Economic Development of March 2, 2018. To the same end, it is provided that the provisions of article 12 of Legislative Decree no. 387/2003 (i.e. Single Authorization) also apply to all the infrastructural works necessary for the introduction of biomethane into the existing natural gas transport and distribution network, for which the final measure must also provide for the attachment of the pre-ordained constraint to the expropriation of the assets included therein, as well as the variation of the urban planning instruments.
It is worth noting that Article 31-quarter of the Conversion Law widens the perimeter of the definitions of Article 2 of the Legislative Decree no.387/2003. In the category of “plants powered by programmable renewable sources”, Article 31-quater added “hydroelectric storage plants by using pure pumping”. Likewise, henceforth, article 12 of Legislative Decree no. 387/2003 prescribes that, when hydroelectric storage plants use pure pumping, the authorization is issued by the Ministry of Ecological Transition, after consultation with the Ministry of Sustainable Infrastructure and Mobility and in agreement with the region concerned, in the manner set forth by the single procedure.
The Conversion Law, through Article 32, definitively amends Article 5 of the Legislative Decree no. 28/2011 by introducing the possibility to use the “Communication of Commencement of Work Certified” (“CILA”) for non-substantial interventions that fall within the cases below:
Therefore, without prejudice to Article 6 (PAS) and Article 6-bis of the Legislative Decree no. 28/2011, which have remained substantially unchanged, if the intervention does not involve any modification to the volume of the facilities as well as to the area involved in the Plant, it is possible to apply the CILA.
However, it is not clear why for CILA interventions the new Decree recalls the Screening and EIA (therefore, taking also into account that, at the time of the intervention, the area of the plant has not become unsuitable for the construction of the plants, or new constraints have not been imposed), while for “Declaration of Commencement of Work Certified” (“DILA”) interventions (which allows more impacting work such as increasing of the volumes and the heights within certain limits) Screening and EIA procedure are expressly excluded.
In any case, the legal framework outlined above shall be coordinated with Article 4, paragraph 6-bis of the Legislative Decree no. 28/2011, which states as “general principle” that those projects that modify plants and that involve i) full reconstructions, ii) renovations, iii) repowering and iv) revamping require an EIA only in relation to the variations, and therefore the applicable threshold for the Screening or EIA should be referred to in the variation only.
The Conversion Law also introduces a new provision to Article 32. Indeed, the newest paragraph 1-bis amends the first paragraph of article 6-bis of the Legislative decree no. 28/2011 in relation of intervention on wind farms. For the sake of completeness, it is worth noting that article 6-bis provides specific exceptions for certain interventions. Such discipline waives the need to request environmental and landscape assessment and provides for submission of a declaration of compliance (where the surveyor confirms the compliance with the rules on safety, seismic and sanitation) to the Municipality. However, article 6-bis applies in specific cases. In fact, the interventions shall be: “on existing plants and modifications of authorized projects that, without increasing the area occupied by the plants and related works and regardless of the electrical power resulting from the intervention". , .
Paragraph 1-bis widened the application of Article 6-bis since henceforth, it covers interventions involving a reduction in surface area or volume, even when there is no replacement of wind turbines.
The Conversion Law confirmed all the amendments involving Law no. 241/1990 on the Administrative proceeding.
For the sake of completeness, it is worth noting that the Conversion Law is aligned with the main aims of Law Decree no. 77/2021. Indeed, Article 61, which regards strengthening substitute powers, maintained the same contest and provisions introduced by the Decree.
Likewise, Article 62, related to the cases where the silence of the administration is equivalent to a measure of acceptance (“silence-consent”), maintained the same provisions as well.
The most important provision related to the administrative proceeding is Article 63, amending definitively Article 21-nominees of Law no. 241/1990. Henceforth, the new term for the administration to exercise the self-redress power is 12 months (instead of 18 months).
Such important amendments will finally stop the debates about the starting date for the application of the provisions related to the GSE inspection powers. As widely highlighted by the case law, it is legitimate to think that the 12-month term can be applied as a time limit to GSE inspections after entry into the “Decreto Semplificazioni I”, (17 July 2020).