Conversion into law of the PNRR ter decree: news on energy matters

Law Decree No. 13 of 24 February 2023 (the "Law Decree 13/2023") was converted, with amendments, into Law No. 41 of 21 April 2023, introducing urgent provisions aimed at the implementation of the National Recovery and Resilience Plan (NRP) and the National Plan for Complementary Investments to the PNRR (PNC), that was published in the national Official Gazette No. 94 of 21 April 2023 and became effective on the following day (the "Law No. 41" and, together with Law Decree 13/2023, the "PNRR ter Decree").
Below are the main news concerning energy matters:
 

The PNRR ter Decree makes significant changes to the Single Authorization procedure (AU) set out in Article 12 of Legislative Decree No. 387/2003, as well as in Article 30 of Law Decree No. 77/2021, with the aim of simplifying the authorization process for renewable energy plants (especially for those located in areas subject to landscape protection and in the relevant neighbouring areas). 

As a result of these changes:

(i) The issuance of the AU now also includes any environmental assessments set out under Title III, Part II of Legislative Decree No. 152 of 3 April 2006 (the Environment Code), where needed. Consequently, the maximum duration of the AU procedure has been set at:

• 90 days, in case of projects located in areas subject to cultural or landscape constraints under Legislative Decree No. 42/2004 and not subject to environmental assessments (Environmental Impact Assessment (EIA)/Environmental Screening (Screening).
• 60 days, in all other cases. This deadline shall be calculated net of the time required to complete the environmental assessments.

In addition to the above, it is specified that with respect to the Screening and Environmental Impact Assessment ("EIA") procedures ongoing as of the date of entry into force of the PNRR ter Decree, the AU may be started even before the relevant Screening or EIA clearance;  

(ii) The participation of the Ministry of Culture in the AU procedure is no longer required for those projects located:
 

(a) in areas subject to protection pursuant to Legislative Decree No. 42/2004, if such projects require the environmental assessments set out under Title III, Part II of the Environmental Code; and
(b) in areas neighbouring to those subject to landscape protection.

The procedural simplifications currently provided for the plants located in suitable areas (i.e., (i) the reduction by one-third of the terms of the authorization procedures, (ii) the mandatory and non-binding opinion issued by the competent landscape authority, and (iii) the obligation for the competent authority to process the permit application even in case the landscape authority fails to express an opinion within the terms provided by law) are also extended to the related underground electrical connection infrastructures, regardless of their location.

The issuance of the EIA clearance is no longer subject to the prior obtainment of the Preliminary Verification of Archaeological Interest clearance or the execution of preliminary archaeological tests. As a matter of fact, the PNRR ter Decree repealed letter g-ter of Article 23, paragraph 1, of the Environmental Code, which included the Vpia clearance among the documents to be attached to the EIA application.
 

The PNRR ter Decree provides for the extension of the so-called “ex-lege suitable areas” for the instalment of renewable plants, set out in Article 20, paragraph 8 of the Legislative Decree no. 199/2021, through the reduction of those areas included in the buffer zone previously applicable to assets subject to landscape protection pursuant to Legislative Decree no. 42/2004. More specifically:

• as regards wind power plants, the buffer area is reduced from 7 to 3 Km;
• as regards photovoltaic plants, the buffer area is reduced from 1 Km to 500 meters.

Moreover, according to the reworded letter a), paragraph 8 of Article 20 of the Legislative Decree 199/2021, sites where plants of the same source have already been installed and where changes, including material changes, are carried out for renovation, upgrading or complete reconstruction, including through the pairing with storage systems, are subject to the regulation applicable to the suitable areas provided that the above changes not entail a variation in the occupied area of more than 20%. This limit does not apply to photovoltaic plants.
 

The PNRR ter Decree introduces some changes with respect to the PAS permit obtained following the well-known silent-consent mechanism. Pursuant to the newly introduced paragraph 7-bis of Article 6 of Legislative Decree no. 28/2011, once the thirty-day term has expired, the applicant shall send a copy of the PAS application to the competent Region for its publication in the Regional Official Bulletin (BUR). Starting from the day of publication in the BUR, the applicable statutory term for challenging the PAS permit begins to run.

Furthermore, pursuant to the amended paragraph 2-quater, letter c), no. 3 of Article 1 of Law Decree no. 7/2002, the construction of electrochemical storage systems may be authorized by means of PAS, if the same storage systems are operated together with renewable energy production plants in operation or authorized but not yet in operation.
 

Until 31 December 2025, the local authorities in whose territories renewable energy plants financed by the resources of the PNRR are located, may grant concessions for the use of public areas for the instalment of energy plants required to meet the energy needs of the RECs. To this end, the local authorities will specify the areas for which the concession may be awarded, the minimum and maximum duration of the concession, and the concession fee amount.
 

The following plants may be installed without any authorization:

a. agro-photovoltaic plants, provided that:

• are located in agricultural areas that do not fall within protected areas or areas included in the Rete Natura 2000;
• are built by agricultural entrepreneurs or by joint venture companies together with electricity producers;
• the solar panels are installed two metres or more above the ground, without concrete foundations or foundations difficult to remove;
• the construction of photovoltaic systems provides for their effective compatibility and integration with agricultural activities also in view of the implementation of monitoring systems.

The above provision will be applicable once the suitable areas pursuant to Article 20, paragraph 1 of the Legislative Decree no. 199/2021 will be identified.

b. wind power plants with a total capacity of up to 20 kW (so-called micro-wind plants), if located:

• outside protected areas or areas included in the Rete Natura 2000;
• in urban areas with high historical, artistic or environmental value, provided that the above-mentioned wind plants have a total power output of up to 20 kW and are tall no more than 5 metres;

With specific regard to the installation of micro-wind turbines in villas, gardens and parks of particular aesthetic value, the PNRR ter Decree provides that a prior authorisation must be obtained from the competent landscape authority. Such authorization, save for any possible prorogation, shall be issued within forty-five days from the date of the relevant application. If, within such term, the landscape authority does not communicate the reasons preventing the installation of the plant, the project shall be deemed to have been approved and the relevant authorisation to be validly issued.

c. ground-mounted photovoltaic plants without any power limit – save for the environmental assessments set out under Title III, Part II of the Environmental Code, where applicable - as well as the related works and the necessary infrastructure, pursuant to the new Article 22-bis to the Legislative Decree No. 199/2021, provided that the said plants are located in areas qualified as industrial, artisanal and commercial or in closed and restored landfills or landfill lots or quarries or portions of quarries that cannot be further exploited, not subject to landscape constraints.
On the contrary, if the area is subject to landscape constraints, the relevant project shall be previously submitted to the competent authority, that may reject the project within the following 30 days.
In order to coordinate this provision with the previous regulatory framework, the first sentence of Article 6, paragraph 9-bis of Legislative Decree No. 28/2011, which extended the application of PAS procedure to photovoltaic plants with power capacity up to 20 MW if located in the same areas now included in Art. 22-bis, has been deleted.

 Starting from 22 April 2023 and until 30 June 2024, the following projects are exempt from environmental assessments, provided that they fall within suitable areas pursuant to Article 20 of Legislative Decree 199/2021 and included within plans or programs that have already undergone positive strategic environmental assessment:

1. photovoltaic plants with a capacity up to 30 MW, including ancillary works, storage systems and infrastructure essential for the construction and operation of the said plants;
2. storage systems for electricity produced from renewable sources, including ancillary works and infrastructure essential to the construction and operation of such facilities;
3. projects for the renovation, upgrading or complete reconstruction of existing photovoltaic plants, possibly including storage systems, which do not involve a change in the area occupied and with a total capacity, after the mentioned changes, of up to 50 MW;
4. repowering projects of existing wind power plants, which do not involve a change in the area occupied and with a total capacity, following the said repowering, of up to 50 MW;

In addition to the above, exempted from environmental assessments within the same time window are those projects concerning offshore renewable plants with a total capacity not exceeding 50 MW that fall within areas identified by the Sea Zone Management Plan, which have already undergone positive strategic environmental assessment. 
 

With specific reference to photovoltaic plants, the PNRR ter Decree provides new rules for Screening and EIA procedures. More specifically, photovoltaic plants with an overall power capacity:

• higher than 20 MW, are subject to national EIA;
• higher than 10 MW, are subject to Regional Screening.

The above-mentioned thresholds apply only in case the photovoltaic plant is located:

1. in a suitable area, pursuant to Article 20 of Legislative Decree 199/2021;
2. in the areas included in the newly introduced Article 22-bis of Legislative Decree 199/2021 (as better explained in Section 7.c. of this contribution); or, outside the previous cases,
3. if the photovoltaic plant does not fall within the areas identified in accordance with paragraph (f) of Annex 3 to the Decree of the Ministry of Economic Development dated 10 September 2010.

In order to coordinate this provision with the previous regulatory framework, the third sentence of Article 6, paragraph 9-bis of Legislative Decree No. 28/2011, which provided for different thresholds and rules for Screening and EIA procedures, was deleted.