Our Legislator is accustoming us to strong emotional shocks.
The very latest news on expropriations in the renewable energy sector, however – in a context worthy of more thoughtful reflection – offer reassuring elements.
We had left off with a note in which we wondered whether, under the legislative reforms in the pipeline, it would still be possible to resort to expropriation of land on which to build RES plants. It is comforting to see that the regulations contained in both the so-called D.L. Ambiente (Environmental Decree) as converted into law and the new RES Consolidated Act allow for a positive answer to this question.
The RES Consolidated Act
Building on the latter discipline, upon final approval of the RES Consolidated Act, as we had hoped, the Legislator clarified the issue, appropriately intervening on the definition of "proposing party" and other relevant rules.
The RES Consolidated Act, Legislative Decree No. 190/2024 (published in the Official Gazette No. 291 of 12.12.2024 and in force as of 12.30.2024), basically confirming the framework hitherto in force, specifies in this regard that:
- "proposing party" is "the public or private entity interested in carrying out the interventions" thus eliminating any reference to the assumption of the legitimate availability of the area (which, in fact, had jolted us);
- in the case of a single authorization, the proponent will be able to request the activation of the expropriation procedure for the areas interested by the connection works and the plant (with the limitations already in force with regard to some specific types of plants);
- the general prohibition to require the activation of the expropriation procedure for the plant area for (a) photovoltaic plants, (b) biomass-fueled plants, including biogas plants and plants for biomethane production of new construction, already provided for in Article 12 of Legislative Decree No. 387/2003, to which is now added (c) thermodynamic solar plants (Article 9, paragraph 3, Legislative Decree No. 190/2024), remains in place.
An innovation to be welcomed, on the other hand, has been introduced with regard to the PAS regime for which the possibility, where necessary, of using expropriation procedures for the purpose of carrying out connection works has been provided (Art. 8, paragraph 2).
Indeed, it should be pointed out that the rules currently in force (Art. 6, paragraph 2, Legislative Decree No. 28/2011 destined to be superseded by the RES Consolidated Act) stipulate that it is possible to proceed with PAS only in the case where the subject has the availability of the lands affected by the proposed plant and related works.
The D.L. Ambiente as converted into Law
Similarly, the recently published Law No. 191 of December 13, 2024, which converts into law the so-called D.L. Ambiente, has revised the provision that, once again raising significant concern, required proponents of RES projects to attach a statement certifying their legitimate availability – under any title – of the area intended for the plant’s construction when submitting the EIA application (Art. 1, paragraph 2, of the D.L. Ambiente).
This provision was amended with an opportune specification on the types of plants - which are largely already identified by Art. 12 Legislative Decree No. 387/2003 with the addition of solar thermodynamic plants - for which the expropriation of the areas necessary to build the plant is not allowed.
Article 1, paragraph 2, of the D.L. Ambiente, as amended by Law No. 191 of December 13, 2024, now stipulates:
"for energy production projects from photovoltaic, solar thermodynamic, biomass or biogas sources, as well as biomethane production, the proponent of the EIA measure referred to in Article 25 of Legislative Decree No. 152 of 2006, as amended by paragraph 1, letter e) , of this article, shall attach a statement, prepared in accordance with Articles 46 and 47 of the Consolidated Text of legislative and regulatory provisions on administrative documentation, referred to in Presidential Decree No. 445, certifying the lawful availability, for any reason whatsoever, of the area on which the plant is to be built, without prejudice to the public utility and consequent procedures for related works" (bold and underlined by the writers).
Albeit after an initial false move (such as the one we highlighted in our previous note on the subject, therefore, on the subject of expropriations the Legislator eventually has confirmed a set-up of the discipline that, insofar as it does not introduce further limitations to the use of expropriation procedures – procedures that operators, it should be noted, have no interest in pursuing except in case of real necessity - is satisfactory.
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This note was written by attorneys Massimo Colicchia and Chiara Berra. For more information or clarification on the issues discussed in this article, please contact the authors at the following email addresses:
Todarello & Partners provides legal assistance on all issues related to the topics discussed in this article. The firm's attorneys have relevant experience in the field, regularly assisting some of the largest players active in the market and representing them in court before all relevant jurisdictions.
