European Union: The Identification Of Suitable Areas For The Installation Of Onshore And Offshore Renewable Plants: What Challenges Will We Have To Face?

With the aim of facilitating the integration and diffusion of renewable energy plants, Legislative Decree No. 199/2021 overturned the territorial planning perspective for hosting renewable energy plants.

Contrary to the Guidelines adopted with the Ministerial Decree of 10th September 2010, Legislative Decree no. 199/2021 (Articles 20 et seq.) provides for the suitable identification of areas for both onshore and offshore renewable plants.

At the current stage, we can therefore consider three distinct territorial planning categories: 1) suitable areas, where the installation of renewable plants is facilitated 2) areas not included in the suitable areas (with the ordinary permitting procedures) and 3) areas that are not suitable under the Ministerial Decree of 10^th September 2010.

What are the suitable areas under the current legislation? How will they actually be identified? And most importantly, how much longer will we have to wait for totally effective territorial planning?

Legislative Decree no. 199/2021 provides for a different discipline depending on whether the renewable source plant is installed 'onshore' (Art. 20) or 'offshore' (Art. 23).

For onshore plants, Article 20 of Legislative Decree no. 199/2021 establishes that suitable areas are to be identified as follows.

1) By means of implementing decrees of the Ministry of Ecological Transition in agreement with the Ministry of Culture and the Ministry of Agriculture, Food and Forestry (Art. 20 paragraphs 1 to 7).

Such Ministerial Decrees will first have to establish the criteria for the identification of areas suitable to host wind and photovoltaic plants, and of surfaces, disused industrial areas, compromised, abundant and marginal areas suitable for the installation of renewable source plants, leaving the Regions to concretely identify these areas on the basis of the principles and criteria established by them.

For the implementation rules, however, there is still some time to wait: in the next few days, it is expected that the Ministry of Ecological Transition will send the Ministry of Culture and the Ministry of Agricultural Policies the draft decree that will establish the criteria for the identification of suitable areas, as provided for in Article 20 of Legislative Decree 199/2021.

Subsequently, in line with national principles and criteria, the Regions will have to take into account:

– the ongoing need to reconcile the protection of the landscape, cultural, agricultural, forestry and environmental heritage with the need to achieve the goals of total installed capacity at least equal to that identified by the National Integrated Energy and Climate Plan, in order to pursue the decarbonization targets;

– the characteristics and the availability of renewable resources, grid infrastructure and their potential development, as well as electricity demand and its dislocation.

2) The so-called "ope legis" suitable areas, identified as such by the legislator (Art. 20, paragraph 8).

Following the recent amendments introduced by Legislative Decrees 17/2022 (the so-called "Energy Decree") and 50/2022 (the so-called "Aid Decree") to Article 20 paragraph 8 of Legislative Decree no. 199/2021, the legislator has provided that, the "ope legis" suitable areas are the following:

– Sites where plants of the same source are already installed and where non-substantial modifications will be implemented.

– Sites subject to remediation quarries and mines that have ceased, were not recovered or have been abandoned, or are in an environmentally degraded condition.

– Areas at the disposal of the Ferrovie dello Stato Group (Italian National railways) and railway infrastructure management as well as concessionary companies.

– For photovoltaic systems, even with ground-based modules, in the absence of landscape restrictions: agricultural areas within 300 meters from industrial, artisanal, and commercial zones, Sites of National Interest, quarries and mines, or from industrial plants, in the absence of cultural heritage; areas located inside industrial plants and establishments and areas classified as agricultural within a perimeter within 300 meters of the same plant or establishment; areas within 150 meters of the highways.

– Areas on which there is no cultural and landscape heritage, and which do not fall within a 7 km range from cultural heritage or estates and areas of significant public interest.

In the case of offshore plants, Article 23 of Legislative Decree no. 199/2021 provides for the identification of suitable areas through the preparation of a Maritime Space Management Plan for energy production (the deadline for its adoption was planned for June 2022).

While waiting for the adoption of the aforementioned Plan, Article 13 paragraph 2 of Decree-Law no. 17/2022 established that the following are considered suitable:

– disused oil platforms and the area that is two nautical miles away from each platform;

– ports, for wind farms up to 100 MW of installed power, subject to a possible variant of the Port Master Plan, where necessary, to be adopted within 6 months from the submission of the request.

Recently, the European Union started an infringement procedure against Italy for the delay in sending its Maritime Area Plan for offshore wind farms.

Therefore, on 2nd February 2022, the Ministry of Infrastructure and Sustainable Mobility submitted the preliminary reports for the Tyrrhenian, Adriatic and Ionian Seas to the Ministry of Ecological Transition.

In mid-June, the Ministry of Ecological Transition issued its scoping opinions pointing out that the areas dedicated for energy use, in particular offshore wind power, were still very limited and, as a result, called for a higher increase in the production of this resource, also due to the fact that this source, unlike other renewable sources, does not have a significant impact on the landscape perceived from the coast.

Awaiting the above-mentioned plans to be first implemented by the Ministry of Infrastructure and Sustainable Mobility, and then submitted again to the Ministry of Ecological Transition in order to obtain the Strategic Environmental Assessment (SEA), even for offshore RES plants, the coming months will be decisive in order to have a more delineated planning framework for suitable areas.

It is certain that the territorial planning instrument envisaged by Legislative Decree no. 199/2021, both for onshore and offshore plants, can only be truly effective if it is promptly implemented. An excessive delay in issuing the implementing rules would risk thwarting the energy transition, increasing regulatory uncertainty, and discouraging the investments needed to pursue the decarbonization targets that have been set.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.