Main novelties of Law Decree No. 17/2022 (D.L. Energia) on the energy sector

Law 27 April 2022, No. 34^[1] converted with amendments Law Decree 1^st March 2022, No. 17 concerning "Urgent measures to contain the cost of electricity and natural gas, develop renewables and relaunch industrial policies", converted into (the "Decree"). The Decree, as amended, provides measures aiming both at increasing the energy production from renewable sources and simplifying the relevant national regulatory framework.

The key innovations introduced by the Decree in the energy field relate to:

1. areas classified as "suitable" and "suitable by law" (ex lege) to construct renewable plants;
2. simplifications in the authorization procedures required for photovoltaic, wind and hydro plants;
3. self-consumption of renewable energy;
4. agrovoltaic plants;
5. photovoltaic plants on rooftops and buildings;
6. offshore plants; and
7. power purchase agreements.

The new measures are examined in more detail in the following paragraphs.

SUITABLE AREAS

Articles 12 and 18 of the Decree update the legal framework of suitable areas for the construction of plants fed by renewables set out under Legislative Decree 8 November 2021, No. 199 ("LD 199/2021") by broadening the categories of areas which are deemed as suitable by law.

In particular, under the Decree, the following are now considered suitable:

1. with respect of photovoltaic plants, also ground-mounted, areas that:
   • are not affected by cultural heritage constraints;
   • if qualified as agricultural, fall within a perimeter distant no more than 300 meters from industrial, hand-craft and commercial sites, including sites of national importance, quarries and mines;
   • fall within industrial plants and, if classified as agricultural, fall within a perimeter distant no more than 300 metres from the same industrial plant;
   • adjacent to the highways within a maximum 150 metres distance;
2. with respect to photovoltaic plants, areas already covered by plants which are interested by interventions of repowering or refurbishment, also including the installation of storage systems with a maximum capacity of 3 MWh per each MW of the plant's capacity, provided that the occupied area is:
   • the same as that of the plant; or
   • if wider or different, (i) free from cultural heritage constraints and (ii) if classified as agricultural land, it is distant no more than 300 meters from industrial, hand-craft and commercial sites, including sites of national importance, quarries and mines;
3. projects of generation plants from renewable sources, whose authorisation proceeding is still pending at the date of publication of the Decree, involving areas neither affected by any constraints nor declared unsuitable pursuant to the relevant regional regulations;
4. sites in the availability of Ferrovie della Stato Italiane; and
5. for offshore plants, areas not affected by constraints which may limit the offshore plants construction.

Ministry of Ecological Transition (the "MITE") shall identify the suitable areas pursuant to LD 199/2021, issuing guidelines expected to be enacted by 13 June 2022.

Landscape constraints shall no longer be taken into account in assessing the suitability of an area. Only cultural heritage constraints may ground the classification of an area as unsuitable ex lege.

THE AUTHORIZATION REGIME FOR SUITABLE AREAS

The Decree provides for simplified authorization procedures for plants located in suitable areas (including those classified as suitable by law).

In particular, the Decree sets out that:

1. plants with a maximum capacity of 1MW (and the relevant connection facilities) located in areas which are (a) in the availability of the applicant (i.e no expropriation proceedings are needed), (b) not subject to the regulatory framework set out by the Legislative Decree 22 January 2004, No. 42 (concerning cultural heritage and landscape) can be construed subject to the filing of a sworn declaration of commencement of works (Dichiarazione Inizio Lavori Asseverata);
   • plants with a capacity between 1MW and 10 MW are subject to a simplified authorisation proceeding (Procedura Abilitativa Semplificata – the "PAS");
   • plants with a capacity exceeding 10MW, are subject to the obtainment of the single authorisation (Autorizzazione Unica).

Notwithstanding the above, PAS proceeding will apply also to:

1.  photovoltaic plants up to 20MW and the relevant connection facilities (HV and MV) if in:
   • industrial, productive and commercial areas;
   • landfills or landfill lots closed or restored;
   • quarries or cable lots not eligible for further exploitation and that have been restored;
2. agrovoltaic plants distant no more than 3Km from industrial, productive or commercial areas.

In addition, for photovoltaic plants up to 20MW, environmental impact assessment screening is not required, provided that the applicant declares that the plant is not located in areas considered as unsuitable under Ministerial Decree 10 September 2010.

PAS will also apply to pv plants up to 10MW built in:

• ponds;
• water reservoirs;
• water reservoirs in decommissioned quarries or installed to cover irrigation canals.

AGROVOLTAIC PLANTS

Agrovoltaic plants are entitled to benefit from incentives (yet to be implemented by the relevant ministerial decrees), regardless of the percentage of the agricultural land occupied, but subject to the implementation of monitoring systems that allow to verify the impact on crops, water savings, agricultural productivity and business continuity. Therefore, the maximum land occupation rate of 10%, which was previously introduced, has been finally removed.

The plots of land covered by agrovoltaic plants cannot be used for the installation of further agrovoltaic plants for a 10-year period from the first award of the incentives.

PHOTOVOLTAICS ON ROOFTOPS AND BUILDINGS

With regard to photovoltaics plants to be installed on top of buildings located in areas of historical, artistic and particular environmental value,  it is still required to obtain a prior authorization.

On the contrary, the Decree qualifies as free building activity (attività di edilizia libera), which does not require a prior authorisation, the activities concerning:

1. the installation of photovoltaic and thermic plants on building and the works related to their connection to the electrical grid; and
2. outdoor upgrades and adaptation on the connection works in the area of such buildings.

Moreover, the single simplified model under Article 25, paragraph 3, letter a) of LD 199/2021 has been extended also for rooftop photovoltaic and thermic plants with a capacity up to 200 kW.

PHOTOVOLTAIC AND THERMAL PLANTS INSTALLED IN INDUSTRIAL AREAS

It is allowed to install photovoltaic and thermal plants, without any limitation in terms of capacity, provided that these plants do not cover a surface greater than 60% of the relevant industrial area.

SELF-CONSUMPTION OF RENEWABLE ENERGY

The Decree envisages two types of self-consumption:

1. direct connection: the production site and the consumption site are connected by a line not longer than 10Km and no users other than the producer and the consumer are connected;
2. existing grid: an existing distribution grid is used to share energy produced by a renewable plant. Self-consumers withdraw the energy produced at the withdrawal points in their availability.

Only self-consumers sub (ii) may benefit from the incentives schemes under Article 8 of LD 199/2021, which will be implemented by MITE decrees.

OFFSHORE PLANTS

The Decree has also simplified the procedures to be carried out in order to build offshore plants.

Pursuant to the measures introduced by the Decree, the AU regulatory framework applies not only to the offshore plants but also to the related connection works.

With respect to the offshore plants located in areas that can be deemed suitable (i) the opinion of the relevant landscape authority is mandatory but not binding and (ii) the procedural terms are reduced by one third.

POWER PURCHASE AGREEMENTS

Pursuant to Article 16-bis of the Decree, the GSE may withdraw and purchase energy produced by renewable plants through the execution of long-term power purchase agreements with a minimum term of three years.

^{1 Published on the Official Gazette No. 98 of 28 April 2022.}