Meet the Law - Energy & Climate Change

Exceptional measures for the implementations of projects for production and storage of energy through renewable sources

Decree-Law No. 72/2022, of 19 October
Decree-Law 72/2022 was published today, amending the exceptional measures for the implementation of projects and initiatives of production and storage of energy from renewable sources, approved by Decree-Law 30-A/2022, of April 18.
Due to its importance for the renewables sector, we have decided to highlight the following aspects:

1) Procedure of prior control of urban operations

Projects subject to prior communication
An article 4-A has been added to Decree-Law 30-A/2022, of 18 April, according to which the installation of renewable energy generating plants, storage facilities, UPACs and facilities for the production of hydrogen by electrolysis from water will now be subject to prior control, by means of prior communication, under the terms of the Legal Regime on Urbanization and Building (RJUE), without depending on the existence of a prior information request.

Under the terms of paragraph 9 of the added article, in the absence of an express rejection within 30 days, the interested party may now start the respective works immediately.

Restrictions on the possibility of rejecting projects on the grounds of negative impact on the municipal landscape
According to the approved measures, municipalities may no longer reject the prior communication on the grounds of negative impact on the landscape heritage if the project in question has been the object of a favorable or conditioned favorable environmental impact statement, whether this has been issued expressly or tacitly. Similarly, prior communications cannot be rejected on this basis if the municipal territory in question has an area of less than 2% of the total area allocated to projects of this type.

Exemption of projects with power equal to or less than 1 MW from prior control
Projects for the installation of renewable energy generating plants, storage facilities, UPACs and facilities for the production of hydrogen by electrolysis from water, with power equal to or less than 1 MW are now exempt from prior planning permission.

2) Additional compensation for municipalities
The installation of renewable energy generating plants and storage facilities which obtain a prior control title for urban planning operations or which have been exempted from prior control will now be subject to a single compensation to municipalities corresponding to the amount of EUR 13,500 per MVA of connection power allocated, to be borne by the Environmental Fund. This is in addition to the compensation that was already foreseen in article 49 of Decree-Law no. 15/2022, of 14 January.

3) Priority in concluding an agreement with the grid operator (Terms of Reference)
Procedures relating to the signing of an agreement between the interested party and the operator of the Public Service Electricity Network (RESP) for the construction or strengthening of network infrastructure that are listed in the context of the Terms of Reference and have a favorable or conditionally favorable environmental impact statement (EIS) as of the date this decree-law comes into effect will have priority progress, following the list published on the DGEG website.

4) Experimental period applicable to the 2019, 2020 and 2021 solar auctions
The experimental period established in paragraph 6 of article 32 of Decree Law 15/2022, of 14 January is increased by an additional period of 12 months for the competitive procedures for the allocation of reserve capacity for injection into the RESP for electricity from solar energy conversion, held in 2019, 2020 and 2021, upon request by the interested party and authorization from the DGEG.

If an experimental period is authorized for one of the auction projects, this period granted is in addition to the periods established in the competitive procedures and other extensions granted.

Remuneration update during the experimental period
The specific remuneration applicable during the experimental period is subject to updating by applying the consumer price index in mainland Portugal for the previous year, excluding housing, as published by Instituto Nacional de Estatística, I.P., from the year of the award until the power plant starts operating, when it corresponds to the discount modality, in percentage, relative to a certain reference tariff expressed in €/MWh, or to the variable premium for differences, or finally to the fixed premium for flexibility modality.

Decree-Law 72/2022, of October 19, goes into effect on October 20, 2022, and can be consulted here.

Other Legislative News

Decree-Law n. º 70/2022, of 14 October
On 15 October 2022, Decree-Law no. 70/2022 of 14 October came into force, creating a strategic natural gas reserve, belonging to the Portuguese State, and establishing extraordinary and temporary measures for reporting information and guaranteeing security of gas supply.

The diploma foresees several measures, to be in force for 2 years from publication, of which we highlight the following:

a)    Possibility of creating additional security reserves, borne by suppliers and last resort suppliers, if justified by serious reasons of security (e.g. predictable shortage of gas in the Iberian market or European Union warning regarding energy supply);

b)    The possibility of subjecting entities, with a market share of more than 20%, to the signing of a market creation agreement in the context of the organised gas market with reference to Portugal, ceding contractual supply capacity to the SNG and diversifying the sources of supply.

The Decree-Law can be consulted here.

Decree-Law no. 71/2022, of 14 October
Decree-Law 71/2022 was also published, completing the transposition of European energy standards, amending national legislation on energy efficiency and cogeneration production. The decree-law came into force on October 15th, 2022.

The diploma can be consulted here.