Regional Law no. 5 of 3 July 2024, with which the Council approved the so-called Sardinian Moratorium, was published on 4 July in BURAS no. 35.
The law establishes urgent provisions with the declared aim of guaranteeing the protection and safeguarding of the landscape and the environment, as well as to favour the regulated and harmonious development of plants for the production and storage of electricity from renewable sources in harmony with the peculiarities and conservation of the regional territory.
Pending the approval of the regional law identifying suitable areas pursuant to Article 20, paragraph 4, of Legislative Decree 8 November 2021, no. 199, as well as of the approval of the Regional Development Programme (PRS) and the Regional Landscape Plan (PPR), and, in any case, for a period not exceeding 18 months from its entry into force, the regulation subjects the entire regional territory to measures to safeguard the landscape, territory and environment, providing for 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.
In particular, the following areas are subject to safeguard measures involving the prohibition of the construction of new plants for the production and storage of electrical energy from renewable sources:
a) homogeneous urban areas pursuant to Article 3 of Decree No. 2266/U of 20 December 19831, without prejudice to the provisions of Paragraph 3 of the Act;
b) protected natural areas established pursuant to Law No 394 of 6 December 1991, with particular reference to integral and general oriented reserve areas as well as equivalent areas established by regional legislation;
c) wetlands of international importance recognized and included in the list of the Convention on Wetlands of International Importance, with particular reference to waterfowl habitats, signed in Ramsar on 2 February 1971, and implemented by Presidential Decree no. 448 of 13 March 1976;
d) wetlands within Sites of Community Interest (SCI) or Special Protection Areas (SPAs) and wetlands within nature reserves and protection oases established at national and regional level;
e) areas included in the Natura 2000 Network in accordance with Directive 92/43/EEC of 21 May 1992;
f) breeding, feeding and transit areas of protected fauna species or areas where the presence of animal and plant species subject to protection under international conventions and Directive No. 92/43/EEC of 1992 is ascertained;
g) agricultural areas affected by quality agricultural-food productions, such as organic productions, PDO, PGI, TSG, DOC, DOCG, traditional productions, or areas of particular value with respect to the landscape-cultural context;
h) areas characterized by situations of instability or hydrogeological risk that are delimited in the Hydrogeological Structure Plans (PAI);
i) areas that are less than 7 kilometers from cultural heritage, or 1,500 meters for minor islands;
j) the areas referred to in Article 142, paragraph 1, of Legislative Decree No. 42 of 2004, letters a, b, c, d (within the limits of the part exceeding 1,200 meters above sea level), f, g, h (limited to areas encumbered by civic uses) and m;
k) the areas identified pursuant to Article 143, paragraph 1, letter d), of Legislative Decree no. 42 of 2004[2;
(l) areas that are less than 7 kilometers away, as the crow flies, or 1,500 metres for minor islands, from plants for the production and storage of electricity from renewable sources that have been built or for which an application has been filed for the start of the relevant authorization procedure at the date of entry into force of the law.
The following are excluded from the application of the safeguard measures:
- plants for the production and storage of electricity[3 from renewable sources that do not involve land consumption and, limited to homogeneous zones H, provided that they are intended for self-consumption or for the enhancement of the compendium in terms of environmental sustainability;
- ordinary, extraordinary maintenance or revamping of plants for the production and storage of electricity from renewable sources;
- plants for the production and storage of electricity from renewable sources aimed at self-consumption and plants located in energy communities;
- plants located in the free areas of plots already urbanized and built on at the entry into force of the law on the basis of an implementation plan, falling within homogeneous urbanistic zones D and G;
- plants for the production and storage of electrical energy from renewable sources envisaged within projects aimed at sustainable public transport;
- plants for the production and storage of electricity from renewable sources integrated within projects for the realization of public works;
- advanced agri-voltaic plants, with elevated construction solutions with a maximum size of 10 Mwp serving farms run by owners with the status of direct cultivator (CD) or professional agricultural entrepreneur (IAP) operating as of 31 December 2018 and with operational headquarters in the territory of the Sardinia Region.
With paragraph 2 of Article 3, the law provides for the application of the safeguard measures also to the 'ongoing' authorization procedures of plants for the production and storage of electricity from renewable sources.
Although the approved and published text makes no reference to plants already authorized whose construction has not yet begun, the President of the Region, Alessandra Todde, point out that the law “is effective in blocking all initiatives for which work has not yet begun prior to its entry into force”. Therefore, despite the letter of the rule, the construction of plants that have already been authorized and whose work has not yet begun should also be considered blocked, with serious damage to the legitimate expectations of operators.
The law immediately showed clear profiles of unconstitutionality.
It is yesterday's news that the Council of Ministers decided to challenge it before the Constitutional Court for exceeding the Region's own competences according to the Statute, for contrasting with State and European legislation and for violating Articles 3, 41 and 117 of the Constitution. The Council of Ministers has also asked the Constitutional Court to apply immediately and as a precautionary measure the suspension of Article 3, the core of the provision.
On this point, it should be recalled that the Regions were not permitted to proceed with the identification of suitable areas prior to the issuance of the Ministerial Decree referred to in Article 20, paragraph 1, of Legislative Decree No. 199/2021 ("Ministerial Decree on Suitable Areas", most recently published in the Official Gazette on July 2, 2024), nor are they permitted to provide for moratoria or suspensions of the terms of the authorization procedures, as provided for by paragraph 6 of the aforesaid Article 20. Moreover, the Regions do not have the power to subject the construction of production or storage plants to express limitations on specific areas, implying, in fact, their concrete unusability for significant expanses of territory, in violation of the reservation of administrative procedures and the relative preliminary investigation aimed at balancing the public interests involved and guaranteeing their proper development (see ex multis Constitutional Court, judgment no. 77 of 2022), nor can they autonomously provide for the identification of criteria for the proper inclusion in the landscape of plants fuelled by alternative energy sources (see Constitutional Court, judgment no. 168 of 2010) or impose absolute preclusions that prevent a priori any concrete assessment at the time of authorization (see Constitutional Court, judgment no. 106 of 2020).
The law, in other terms, violates Article 117 of the Constitution on the subject of concurrent legislation on 'production, transport and national distribution of energy', Article 3 of the Constitution, regulating situations that are substantially identical in an unjustifiably different manner from the national provisions, and Article 41 of the Constitution on freedom of initiative, in addition to being clearly in conflict with the principle of maximum dissemination of renewable energy sources, as it hinders the achievement of ambitious national and European decarbonization objectives.
Despite the fact that, therefore, in all likelihood the law will be censured by the Constitutional Court - as has already happened in the past with similar provisions (see the Lazio and Abruzzo Moratorium declared unconstitutional in judgments n. 221/2022 and 27/2023, respectively) - there is a real risk that any authorization process that may be initiated for the realization of a project in the Region will be affected by the Moratorium (except for the cases referred to in paragraph 3 of Article 3 above) pending the Constitutional Court's decision.
Footnotes
1 Homogeneous zones includes: (a) the historic-artistic center or those of particular environmental value (zones A); (b) the totally or partially built-up parts of the territory other than zones A (zones B); (c) the parts of the territory destined for new residential complexes, which are undeveloped or in which the pre-existing construction does not reach the limits of utilized surface area required for zones B (zones C); (d) the parts of the territory destined for new settlements for industrial, craft, commercial, conservation, processing or marketing facilities for agricultural and/or fishing products (zones D); e) the parts of the territory destined for agricultural use and those with buildings, equipment and installations connected to the agro-pastoral and fishing sectors and to the valorization of their products (zones E); the parts of the territory of tourist interest (zones F); the parts of the territory destined for public and private buildings, equipment and installations, reserved for services of general interest (zones G); the parts of the territory that cannot be classified according to the criteria defined above and that have a particular speleological, archaeological or landscape value or are of particular interest to the community, such as the coastal strip, the strip around urban agglomerations, the cemetery buffer zone, the strip along provincial and municipal roads (zones H).
2 In particular: the coastal strip, systems of bays and promontories, cliffs and small islands; dune fields and beach systems, rocky and ridge areas and areas higher than 900 meters above sea level; caves and caverns; natural monuments pursuant to Regional Law No. 31 of 7 June 1989; wetlands, natural lakes and artificial reservoirs and contiguous territories included in a strip 300 meters deep from the shoreline, also for elevated territories on lakes; rivers, streams and watercourses and their banks or embankment feet, for a strip of 150 meters each, and river systems, riparian, resurgences and waterfalls, even if temporary; areas of further naturalistic interest including priority species and habitats, pursuant to Directive no. 43/92/EEC of 1992; areas that are less than 2 kilometers as the crow flies from monumental trees; areas characterized by buildings and artefacts of historical and cultural value, including the protection strip; areas characterized by historical settlements.
3 On this point, it should be noted that the Region has no competence in authorizing stand-alone Bess plants; this, in fact, belongs to the MASE. The rule therefore, insofar as it refers to 'storage plants from renewable sources', can at most refer to storage plants operating in combination with plants from renewable sources. Stand-alone plants must therefore be exempt from the effects of the Moratorium.
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.
