Energy Decree converted into law: the main novelties in the field of renewable energy

Decree-Law No. 181 of 9 December 2023 (DL 181/2023) on "Urgent provisions for the country's energy security, the promotion of the use of renewable energy sources, the support for energy-intensive undertakings and the recovery in the territories affected by the exceptional flooding events that occurred on or after 1 May 2023" was converted, with amendments, into Law No. 11 of 2 February 2024, published in the Official Gazette  No. 31 of 7 February 2024 and entered into force on the day following its publication (the 'Law No. 11/2024', together with DL 181/2023, the 'Energy Decree').

The main goal of the Energy Decree is to reduce Italy energy dependence, by accelerating the decarbonisation process through the implementation of structural and simplification measures in the energy field. Particular attention was also paid to the territories of Emilia-Romagna affected by the exceptional floods of May 2023.    

The following are the most important new provisions:

1.           Rise of Screening, EIA and PAS thresholds

With specific reference to photovoltaic plants, the power thresholds triggering the Screening and the EIA procedures have been raised. Specifically, it is now established that PV plants with an overall power:

·           higher than 25 MW (instead of the previous 20 MW) are subject to State EIA;

·           higher than 12 MW (instead of the previous 10 MW) are subject to regional Screening.

To be noted that the above thresholds apply as long as the relevant PV plant: 

1)    is located in a suitable area, pursuant to Article 20 of Legislative Decree 199/2021; or

2)    is located in an area referred to in Article 22-bis of Legislative Decree 199/2021;

or, outside the cases under limbs (1) and (2) above,

3)    does not fall within the areas identified pursuant to letter f) of Annex 3 attached to the Decree of the Minister for Economic Development dated 10 September 2010.

In order to make this new provision consistent with the regulatory framework relating to the authorisation regimes for the construction and operation of renewable plants, the power threshold above which the single authorisation procedure is triggered has also been raised from 10 MW to 12 MW. In light of this change, Article 4, paragraph 2-bis of Legislative Decree 28/2011 now provides that photovoltaic plants whose capacity is

·           up to 1 MW, are subject to a simple declaration of commencement of work;

·           above 1 MW and up to 12 MW, are subject to PAS;

·           higher than 12 MW, are subject to the single authorization.

2.           Extension of the exemption from EIA procedures

The effective date of the simplifying measure provided for by Article 47, paragraph 1-bis of Decree-Law No. 13/2023, previously set at 30 June 2024, has been extended until 30 June 2025 (see EU Regulation 2024/223 amending EU Reg. 2022/2577).

More specifically, such measure provides that certain projects (including, inter alia, PV plants up to 30 MW including related works, storage systems and infrastructures that are essential for the construction and operation of such plants) are exempted from environmental assessment procedures until the mentioned date of 30 June 2025, provided that they are located in suitable areas pursuant to Article 20 of Legislative Decree 199/2021, and that such areas fall in plans or programmes which have already been positively submitted to a Strategic Environmental Assessment (SEA). This exemption also applies to offshore renewable plants with a power not exceeding 50 MW located in areas identified by the Maritime Space Management Plan, already positively submitted to SEA.

3.           Extension of start and end of works deadlines

The extension of the deadlines for the start and end of works under Article 10-septies of Decree-Law 21/2022 has been further deferred by six months as a consequence of the difficulties in the procurement of materials and of the increase in the relative prices.

In light of this amendment, the deadlines for the start and end of works relating to (i) building permits, (ii) certified notices of start of works (SCIA) as well as (iii) landscape authorisations and environmental permits and authorisations, however named, are deferred by thirty months (instead of the previous two years), provided that the aforementioned permits are formed or issued by 30 June 2024.         

4.           Permitting simplifications for connection grid works and infrastructures

The Energy Decree simplifies the authorisation regime for the construction of primary substations and power lines, with no extension limits and up to 30 kV, envisaged within specific projects eligible for funding under investment 2.1("Strengthening smart grids"), Component 2, Mission 2, of the National Recovery and Resilience Plan - PNRR. Such simplified authorisation scheme, in force until 31 December 2026, provides that:

·         where no environmental, landscape, cultural or EU regulatory constraints exist, the construction and operation of the aforementioned grid infrastructures only requires the submission of a declaration of start of works (Dichiarazione di Inizio Lavori - DIL). In any case, the consent of the owners of the areas concerned must be obtained;

·         where, on the other hand, environmental, landscape, cultural or EU regulatory constraints exist, or where the acquisition of a declaration of public interest or a change in the relevant town planning is required, the construction and operation of the relevant grid infrastructures is subject to a single authorisation procedure.

The Energy Decree, under Article 9, paragraphs 5 to 9, provides for a detailed description of the just mentioned authorisation procedures, identifying the relevant steps and deadlines.

5.           Measures for the promotion of offshore wind farms

It is envisaged that within thirty days from the date of entry into force of Law no. 11/2024, the Italian Ministry of Environment and Energy Security (MASE) shall publish an invitation notice aimed at the acquisition of third parties’ expressions of interest for the identification of maritime state-owned areas (located in at least two ports in Southern Italy or in port areas adjacent to areas where the use of coal is being phased out) intended to be used for the construction and handling of floating platforms and related grid infrastructures. The aim is to create a national strategic hub in the offshore floating technology sector. 

Furthermore, it is envisaged that the MASE shall adopt specific guidelines for offshore wind projects (much needed given the current absence of ad hoc guidelines), listing the formalities and defining the minimum content required for the submission of any single authorisation application.

6.           Incentives for PV plants in agricultural areas, end of Net Metering scheme (Scambio Sul Posto) and abrogation of the National Single Price (PUN)

The Energy Decree provides for three structural changes aimed at promoting RES plants. In particular:

1)   the ban on incentives for ground-mounted PV plants located on agricultural land is applicable only to the incentive schemes provided for under Legislative Decree 28/2011. Therefore, no similar ban will be applicable for the access to the incentives envisaged under Legislative Decree 199/2021, that will be regulated in the future incentive decree for RES projects called FER X;  

2)   it is established that the exit from the Net Metering Scheme shall take place gradually starting from 31 December 2024, according to specific modalities to be set out by ARERA upon GSE proposal;

3)   the abrogation of the National Single Price (PUN) is set as of 1 January 2025; such price will be replaced by relevant zonal prices defined on the basis of wholesale market trends. In order to manage this price index shift, the MASE will elaborate specific price criteria as well as a rebalancing mechanism to ensure a fair transition in all market zones.