In our note of 23 October we provided an overview of the changes introduced by the so-called DL Ambiente (Decree Law No. 153 of 17 October 2024). Here, we would like to focus on a specific provision within this Decree, namely Article 1 paragraph 2, which concerns the renewable energy sector. This provision stipulates that the proponent of RES plants projects, when submitting the EIA application must attach to it a declaration certifying the availability, based on a valid title, of the area and, where required, the resource necessary for the realisation of the projects. The rule has justifiably caused much concern among practitioners, as it appears to require developers of large RES projects to obtain real rights over land before they can begin the EIA process.
If this were the case, as indeed at first sight it would appear to be, and the requirement of the availability of lands were limited to the availability acquired by agreement and in advance by means of a contract (surface, lease, etc.) - the possibility of expropriation not being included in the concept of “availability” - a whole series of projects for which the proponent had not succeeded in concluding an agreement with the owner of the area concerned would be cut off from the possibility of being authorised, since an EIA would be necessary for this purpose.
Therefore, if different interpretative options were not possible - which it will be worth exploring - a provision of this kind would certainly open up a “political” issue. However, the rule also raises a number of systematic and interpretative questions. Firstly, in the absence of specific clarifications, it will be necessary to understand whether the provision is applicable to any type of project (wind, photovoltaic, etc. - to date, a provision of this kind is in force only for photovoltaics and biomass plants, regardless of whether an EIA is required).
In fact, the legislation currently in force - Article 12 of Legislative Decree No. 387/2003 - allows for RES plants, for which the availability of the areas affected by the construction of the plant has not been obtained, to resort to the single authorisation procedure (AU) and request the attachment of the expropriation constraint (“vincolo preordinato all’esproprio”), thus compulsorily acquiring this availability (with the exception, as mentioned above, for example of photovoltaic plants, due to the vast extension that characterises them and except for connection works). In the current context, therefore, it would seem that the DL Ambiente introduces the demonstration of the prior availability of the area for all types of plant subject to EIA, therefore, with clear contradiction, also for those for which, pursuant to Legislative Decree No. 387/2003, it is now possible to resort to expropriation procedures and, therefore, without having to acquire such prior availability. But there is further food for thought that this discipline induces, in view of the reforms currently in the pipeline.
In fact, the authorisation regulations currently in force are destined to be superseded by the much-discussed RES Consolidated Act ('Draft legislative decree regulating administrative regimes for the production of energy from renewable sources'), aimed at ensuring the rationalisation, reorganisation and simplification of procedures in the field of renewable energy.
The defining apparatus of the RES Consolidated Act – in the text known to date and in the process of being approved, following the examination by the parliamentary commissions - in Article 3 (definitions), paragraph 1, letter b), defines "proposing party" as the public or private party interested in the implementation of the interventions that has the availability, based on a valid title, of the surface area and, where necessary, the resource necessary for the plants referred to in Article 1, paragraph 1.
Thus, in a provision that parallels the one in the DL Ambiente for projects subject to EIA, the rule seems to introduce the concept of necessary prior availability of areas in order to be able to 'propose' any type of RES plant, whether or not it is subject to EIA. If, in fact, this were the case, the provision - in addition to entailing a revolution for the sector - would, from a more exquisitely legal point of view, be in blatant contradiction with other rules of the RES Consolidated Act currently being approved.
The draft law, in fact, establishes, firstly, that the decree 'ensures, also in the interest of future generations, the maximum dissemination of plants for the production of energy from renewable sources' (Article 1, paragraph 2). Now it is evident how the possibility of expropriation - to which, moreover, operators, as is well known, resort in extreme cases, since it is much easier to first secure availability through agreements with landowners - is consistent with this objective. On the contrary, the need to resort, always and in any case, to the conclusion of an agreement with landowners, means attributing to the latter an unjustified negotiating 'over-power' (already, moreover, experimented in the past, on the 'publicistic' front when it was believed that municipalities had the power to 'grant' the use of their land and thus, in fact, select the initiatives on the territory, through a “concession”).
The provision under comment is even more in contrast, if possible, with the provisions of Article 2, paragraph 2, of the RES Consolidated Act that provides for the possibility to start expropriation procedures of lands on which RES projects are located (pubblica utilità, indifferibilità ed urgenza). The definition of proponent (as the subject that can show availability of lands) appears, therefore, on first examination, to contradict the said possibility of expropriation. What, then, could be the scenario if the RES Consolidated Act were to be approved in the version under comment here?
Certainly, if it were to be approved in the version contained in the draft law, it would be appropriate to ask whether it would still be possible to resort to expropriation of the land required to build a RES plant, where no prior agreement has been reached with the owners of the areas affected by the project and for what types of plant/authorisation permits. In the absence of a clarifying amendment, it is evident that the issue will ultimately need to be referred to Courts. Can this still be called simplifications?
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The Authors of this article are the lawyers of our Firm Massimo Colicchia and Chiara Berra. For further information or clarification on the topics discussed in this article, please feel free to contact them at the following email addresses:
Todarello & Partners provides legal assistance on all issues related to the topics discussed in this article. The firm's lawyers have significant experience in the field, regularly assisting some of the largest operators active in the market and representing them in court, in all relevant jurisdictions.
