On 17 October 2024, Law Decree No. 153/2024, the so-called 'Environment Decree', was published in the Official Gazette No. 244. The 'Environment Decree' entered into force in Italy on 18 October 2024 and it is aimed at introducing a number of urgent provisions for the environmental protection of the country, the streamlining of environmental assessment and authorization procedures, the promotion of the circular economy, and the implementation of interventions on the reclamation of contaminated sites and hydrogeological instability.
Pending its conversion into an ordinary law, which must take place within 60 days of its entry into force (i.e., by 16 December 2024) and which may also introduce amendments, the new 'Environment Decree' introduces a number of novelties in different sectors and for different purposes, among which are:
- provisions on EIA (environmental impact assessment) and SEA (strategic environmental assessment) (Art. 1), aimed at simplifying and speeding up these procedures;
- urgent provisions to combine environmental protection and security of supply requirements (Art. 2), aimed at suspending the issuance of new exploration permits and liquid hydrocarbon production concessions;
- urgent measures for the management of the water crisis (Art. 3);
- provisions on the remediation of contaminated sites (Art. 6).
Some of the most relevant and incisive changes introduced by the new 'Environment Decree' will be analyzed below.
- Amendments to streamline the EIA (environmental impact assessment) and SEA (strategic environmental assessment) procedures for so-called “priority projects”.
In order to speed up the EIA and SEA procedures under State jurisdiction, the following projects are added to those already considered as priorities, under Article 8 of the Legislative Decree No. 152/2006 (the 'Environmental Code') a) projects relating to large foreign investment programs on Italian territory declared to be of pre-eminent national strategic interest (Art. 13 of Law Decree No. 104 of 10 August 2023); and b) projects relating to investment programs for the national production system worth more than €25 million and with significant employment effects (referred to in Article 30 of Law Decree No. 50 of 17 May 2022).
Furthermore, with reference to the procedures concerning the implementation of the National Integrated Energy and Climate Plan (NIPEC), a new Decree by the Ministry of the Environment and Energy Security (MASE), in agreement with the Ministry of Culture and the Ministry of Infrastructure and Transport, shall be adopted in order to identify the types of projects to be considered as priorities on the basis of the following criteria (a) reliability and technical and economic sustainability of the project in relation to its realisation; (b) contribution to the achievement of the decarbonisation objectives set out in the PNIEC; (c) relevance to the implementation of the investments of the National Recovery and Resilience Plan (NRRP); (d) enhancement of existing works, facilities or infrastructure.
Pending the adoption of the aforementioned Decree, the new paragraph 1-bis of Article 8 of the Environmental Code provides that priority should be given, in the following order, to: (a) projects concerning green or renewable hydrogen installations and related plants from renewable sources; (b) interventions of modification, even substantial, for the refurbishment, upgrading or complete reconstruction of plants fuelled by wind or solar sources; (c) on-shore photovoltaic and on-shore agri-voltaic projects with a nominal power equal to at least 50 MW and on-shore wind projects with a nominal power equal to at least 70 MW.
In this perspective, a quota of no more than three-fifths will be reserved for the projects considered a priority according to the above-mentioned criteria. Within this percentage, the examination is defined in chronological order, for each type, based on the date of communication to the proposer of the publication on the Authority's website of all the documentation submitted.
Still, in order to speed up the environmental assessment procedures, on the basis of a special agreement and in the event of justified contingent needs of a functional or organizational nature, it is possible to assign to the EIA-SIA Technical Commission projects that were under former responsibility of the NRRP-NIPEC Technical Commission, without prejudice to the application of the procedural discipline relating to the environmental impact assessments of NRRP and NIPEC projects.
Finally, it is envisaged that the Ministry of the Environment and Energy Security shall avail itself of the operational support of the Gestore dei Servizi Energetici - GSE S.p.A. in relation to renewable energy projects, subject to certain spending limits.
Moreover, with respect to such renewable energy projects the new Environment Decree expressly provides that the proponent must also attach to the EIA application pursuant to Article 23 of the Environment Code a declaration attesting the legitimate availability, for any reason whatsoever, of the surface area and, if necessary, of the resources necessary for the realization of the projects.
2. EIA screening: changes.
The new Environment Decree, once again with the intention of simplifying administrative procedures, amends Article 19 of the Environment Code, concerning the procedures of “verifica di assoggettabilità a VIA” (EIA screening), providing that the competent authority, within five days of receiving the preliminary environmental study, is required to verify the mere completeness of the documentation and no longer its adequacy. The competent authority, however, shall ask for clarifications and additions only once.
In the same provision, then, the new Environment Decree modifies and specifies the terms within which the competent authority, once the project publication phase is completed and on the basis of the observations thus received, may request integrations from the proponent; as well as the terms within which, also following the integrations presented and subject to the granting of an extension, the same authority has to adopt the EIA screening decision. .
Lastly, as already envisaged for the EIA , Article 19 of the Environmental Code now also provides that the EIA screening decision shall have a limited time frame, not less than five years, defined in the measure itself, taking into account the time frame envisaged for the realization of the project, the necessary authorization procedures, and any proposal formulated by the proponent and included in the documentation accompanying the application. The same provision, then, regulates the case of the failure to complete the project within the time limit provided for by the measure itself and the granting, to that end, of an extension thereof.
3.The remediation of contaminated sites: changes.
Regarding the regulation of the remediation of contaminated sites, the new Environmental Decree includes a number of provisions aimed at promoting simpler and faster procedures.
Firstly, the following provisions are introduced for the interventions provided for by the Action Plan for the redevelopment of orphan sites: (a) by way of exception to the discipline of the Environmental Code, the “Piano di caratterizzazione” (characterization plan) must be agreed upon with the territorially competent Regional Environmental Protection Agency (ARPA), which must give its opinion within thirty days from the request of the proponent, possibly establishing particular prescriptions. In the case of failure to give an opinion within the above term, the Piano di caratterizzazione must be agreed upon with the Istituto Superiore per la Protezione e la Ricerca Ambientale (ISPRA), which gives its opinion within and no later than fifteen days from the proponent's request; (b) the results of the characterization investigations, the site-specific environmental health risk analysis (Analisi di rischio sanitario sito-specifica), if necessary, and the project of the interventions may be approved jointly by the competent authority.
Secondly, it is provided that, in order to carry out the analytical activities preparatory to the definition of the background values and to ascertain the completion of the remediation and safety measures, the territorially competent ARPA may avail itself of the laboratories of other entities belonging to the national network system for the protection of the environment (SNPA), of research bodies or of private laboratories accredited pursuant to the applicable legislation, without new or increased burdens on the public finance.
Finally, the possibility of defining background values also for groundwater was introduced as part of the procedure under Article 242, paragraph 13-ter of the Environmental Code.
4. Conclusions.
The new Environment Decree, according to the government's intentions, has the express purpose of streamlining and speeding up the current environmental assessment procedures, providing operators with greater certainty, also in order to guarantee compliance with the tightened deadlines for the realization of the green economy objectives and the projects envisaged by the NRRP.
Awaiting the conversion of the decree into law, it can be noted that the new normative intervention, in view of the limited nature of the changes introduced (especially with regard to environmental assessment procedures and the reclamation of contaminated sites), may not be sufficient to achieve the objectives set by the Government, thus making it necessary to undertake a new normative intervention, with reference to a comprehensive and organic reform of the current Environmental Code, as has been ventilated and hoped for a long time.
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Authors of this note are Giacomo Guglielmini, Delia Schiaroli, Raffaele Arcadi, Giulia Scurzio and Alessandro Castellini.
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