While waiting for implementation of Art. 20 of Legislative Decree 199 of 2021 by the State and regions, in its ruling No. 27 of 2023, the Constitutional Court released a decision on areas suitable for the installation of renewable plants, declaring unconstitutional two provisions contained in two laws passed by the Abruzzo region.
The judgment under comment is of particular interest, in a moment when the energy issue is central in the public debate, as it confirms some interpretative guidelines useful to clarify the regulatory complex that regulates the world of renewable energy, indeed characterized, despite recent simplifying intentions (and sometimes, paradoxically, precisely because of them), by numerous opacities and high fragmentation.
In the case at hand were two laws, enacted in January 2022 and March 2022, respectively, that made relevant amendments to Article 4 of Regional Law 8/2021.
More in detail, Article 16 of Law No. 1 of January 11, 2022, issued by the Abruzzo Region, extended by 6 months, from December 31, 2021 to June 30, 2022, the deadline by which the Region could identify areas and sites suitable for the installation of plants powered by renewable sources. Pending the identification of suitable areas, in any case, the pending procedures for authorization of plants for the production of electricity from renewable sources (“RES”) were suspended.
On the other hand, Art. 19 of Law No. 5 of March 11, 2022, also issued by the Abruzzo Region, allowed municipalities to identify, by resolution of the City Council, areas of the municipal territory unsuitable for the installation of RES plants in agricultural areas of particular cultural landscape value or characterized by quality agri-food production. This rule thus attributed a power to municipalities to declare the absolute unsuitability of certain areas for the installation of RES plants.
The Court found that Article 16 of the aforementioned law, by suspending RES authorization procedures, conflicted both with the provision of a maximum term within which to conclude the procedure (pursuant to Article 12 of Legislative Decree 387 of 2003) and with the prohibition of providing for moratoria or suspensions of authorization procedures (pursuant to Article 20 of Legislative Decree 199 of 2021) but, above all, with art. 117, first and third paragraphs of the Constitution, in relation to the principles expressed in Directives 2018/2001 EU, 2001/77/EC and 2009/28/EC, where the regional law was in contrast with the commitments made by the Italian state to the European Union and the entire international community to pursue the objective of the maximum diffusion of plants powered by renewable sources.
Similarly, Art. 19 was declared unconstitutional because, in the Court’s view, the regional provision, in granting municipalities a power to declare certain areas as unsuitable, created a de facto absolute limitation on the power to authorize said plants in the areas indicated as unsuitable. Such a provision would therefore have been contrary to the state perspective which, conversely, aims, where unsuitable sites are indicated, to accelerate the authorization procedure, substantiating a “first-level assessment” that merely suggests a probable negative outcome, without, however, creating absolute preclusions that inhibit the concrete assessment to be carried out. This principle enunciated by the Court is not, in fact, a particularly innovative statement, as the constitutional judge had already had the opportunity to point it out in the past in numerous pronouncements that concerned laws of other regions (ex multis: judgments no. 216 and 77 of 2022, no. 177 of 2021, no. 106 of 2020, no. 286 of 2019)
Moreover, the Court – while not denying a priori an involvement of municipalities in the definition of planning acts on unsuitable areas – reiterates that Article 12, paragraph 10, of Legislative Decree 387 of 2003 is clear in attributing the task of identifying such areas to the regions, which, to this end, shall make an ad hoc preliminary assessment. In fact, only regions and autonomous provinces are in a position to reconcile policies for the protection of the environment and landscape with those for the development and enhancement of renewable energy, also in view of the minimum annual share of energy production from renewable sources assigned to them.
This conclusion was also recently reached by the Palermo Regional Administrative Court (ruling no. 299 of 2023), which, ruling on a similar case, found that the municipality had an absolute lack of power to identify suitable and unsuitable areas for the installation of specific types of photovoltaic systems.
In light of these authoritative pronouncements, it seems clear, should there still be any doubt, that only regions are empowered to define planning acts concerning suitable or unsuitable areas, while contrary interventions by municipalities are to be considered unlawful.
Regulatory uncertainty has been increased by the inertia of competent ministries, which have not adopted yet decrees outlining the criteria and principles for identifying areas suitable for the installation of the wind and photovoltaic power indicated in the National Integrated Energy and Climate Plan (NIPEC) with which the regions must comply in their legislative activity of identifying suitable areas.
On the other hand, it should also be considered that the subject “production, transportation and national distribution of energy” is defined, pursuant to Art. 117, para. 3 of the Constitution, as a shared competence between the State and the regions: although it is up to state legislation to determine the fundamental principles, it is in fact the regions that must dictate the regulations in the matter, with no room for delegation in favor of the municipalities.
This approach seems entirely acceptable when one considers the commitments made by the Italian state at European and international level, aimed at pursuing the goal of maximum diffusion of installations powered by renewable energy sources in order to fight global warming and climate change. Any attempt to make authorization procedures more burdensome as well as to suspend or limit the issuance of the same authorizations shall therefore be considered unlawful.
Thus, the path dictated by the Constitutional Court seems clear: the pursuit of our country’s energy transition cannot and should not be hindered by a proliferation of regulations issued by regions and autonomous provinces in a piecemeal manner that is inconsistent with the goal.
Therefore, the change of course in the energy sphere cannot ultimately be separated from overcoming this political-administrative action on the part of the regions, which increasingly takes on the connotations of the so-called NIMBY and NIMTO syndromes (Not In My Back Yard and Not In My Terms of Office); by giving, in fact, municipalities the power to identify unsuitable areas (rectius: to prevent the construction of new RES plants), regional administrations thus avoid taking political responsibility for choices that are undoubtedly divisive, but end up thwarting the innovative intent of the national legislature on the subject, precisely, of defining suitable areas.
Authors of this note are Massimo Colicchia, Maria Consolata Bianchini and Samuele Fiorini.
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