Although it is a measure that has been repeatedly announced by Sardinia's new regional administration, the draft law ('Urgent measures for the protection of the landscape and environmental heritage' - hereinafter also referred to as the 'DDL'), passed on 30 April by the newly elected Regional Council, is causing a certain amount of consternation and apprehension. Pending the approval of the regional law on the identification of suitable areas, and the subsequent adjustment and completion of the Regional Landscape Plan, the proposed law establishes an 18-month moratorium on the possibility of implementing projects for plants for the production and storage of electricity from renewable sources 'that directly affect the occupation of land' throughout the region (cf. Art. 2 DDL).
Only energy communities – so called CERs - and plants for self-consumption are excluded from the moratorium.
The regional ban on new RES plants would apply:
- for new projects (i.e. those that will be submitted for authorisation after its entry into force);
- for plants for the production and storage of electricity from renewable sources whose authorisation procedures are in progress at the time of the entry into force of the law (according to the specification in Article 2(2)).
In essence, the effect of this would be to block any RES plant project that has not yet resulted in the granting of a permit.
The wording of Article 2 of the Bill, where it states that 'for a period of no more than 18 months from the entry into force of this law, the entire regional territory is subject to measures to safeguard the landscape, territory and environment involving the prohibition of the construction of new plants for the production and storage of electricity from renewable sources that directly affect the occupation of land', has generated concern that the rule may also apply to plants that have been authorised, but whose construction has not yet begun.
Although the provision is indeed ambiguous in its wording, that this aberrant intent is not that of the legislator is also confirmed by the explanatory report, which expressly refers to plants that have not yet been authorised.
The reaction of bewilderment caused by the DDL among practitioners is, indeed, justified.
In fact, the DDL is, in the first place, in clear contrast with Article 20, paragraph 6, of Legislative Decree No. 199/2021, which, as is well known, expressly sanctions the prohibition to provide for moratoria or suspensions of the terms of authorisation procedures pending the identification of suitable areas.
It is also contrary to Article 12 of Legislative Decree 387/2003 (which, it should be recalled, provides that the assessment of the public interests involved and deserving of protection must take place in the single inified procedure outlined therein), with the European Union legislation promoting the production of energy from renewable sources, and with the principles repeatedly expressed by both constitutional and administrative case law on the subject of RES plants.
Constitutional jurisprudence, in fact, has recently clarified that "regions cannot suspend authorisation procedures, nor subject them to constraints or conditions that are not provided for by state legislation" (Constitutional Court, 27 October 2022, no. 221), lacking the "power of the regions to autonomously provide for the identification of criteria for the correct integration of plants fuelled by alternative energy sources into the landscape".
The regions, in fact, cannot 'create absolute and a priori preclusions that inhibit any concrete assessment to be made at the authorisation stage' (Constitutional Court, 23 February 2023, no. 27).
In line with the principles expressed by the Constitutional Court, administrative jurisprudence has recently highlighted how 'the production of electrical energy from solar sources is itself an activity that contributes, albeit indirectly, to the protection of landscape values' (see TAR Campania judgment 03.02.2024 no. 73).
In judgement no. 2930 of 28 March, the Council of State reiterated that "in light of the aforementioned constitutional case law, it must agree with the Regional Administrative Court that the appellant's argument based on the primacy of the interest in the protection of the landscape values and, conversely, on the sub valence of other potentially antagonistic public interests, including the environmental interest in energy production in eco-sustainable terms, does not have adequate grounds, since the production of electricity from renewable sources is an activity in the public interest that also contributes not only to the protection of environmental interests, but also, albeit indirectly, to that of the landscape values" (as already noted by Cons. Stato, section IV, decision no. 2983 of 2021).
In light of the supra-regulatory framework and the principles set out in the relevant case law, a substantial moratorium on the authorisation of any RES and electricity storage plant from renewable sources that concerns the entire regional territory, such as the one envisaged in the DDL of the Region of Sardinia, is undoubtedly unlawful.
Since this is a (future) regional law, however, it can only be removed from the system by the Constitutional Court, which, as is well known, cannot be directly appealed by private citizens or legal persons, such as companies. It will therefore be necessary for the Government to challenge the law before the Constitutional Court or for a judge to raise the issue of constitutionality (in the context, for example, of an appeal against an administrative measure applying the law - for example, a measure ordering the suspension of an authorisation procedure).
And since the time it takes to obtain a decision from the Constitutional Court is notoriously long, the political operation put in place by the Region may in fact lead to a stalemate whose duration is difficult to assess
While, therefore, it is to be hoped that the Region's stance will be able to get the Region to retrace its steps in a lobbying effort that promises to be difficult, it must be hoped that the Region's stance will lead the Ministry to issue the long-awaited Decree on suitable areas quickly.
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This note was drafted by Massimo Colicchia and Chiara Berra. For further information or clarifications on the topics 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 lawyers have significant experience in the field, regularly assisting some of the largest operators active in the market and representing them in court before all relevant jurisdictions.
