On 10 December, the law Law Decree No. 153 of 17 October 2024, providing 'Urgent provisions for the environmental protection of the country, the streamlining of environmental assessment and authorization procedures, the promotion of the circular economy, and the implementation of measures concerning the remedies of contaminated sites and hydrogeological instability' ("Environmental Decree") has been converted in law.
Below there are some of the most important novelties concerning environmental authorizations.
One of the aims of the Environmental Decree is to speed up the process of environmental assessments and authorizations by introducing a fast track for certain projects. On this point, by amending Article 8 of Legislative Decree No. 152/2006, the Environmental Decree includes among the projects to be given priority in the order of treatment by the State Technical Commission for Environmental Impact Assessment - EIA and SEA as well as by the PNRR-PNIEC Technical Commission, those "of pre-eminent national strategic interest pursuant to art. 13 of Decree-Law no. 104 of 10 August 2023, converted, with amendments, by Law no. 136 of 9 October 2023" and "those having the characteristics referred to in Article 30 of Decree-Law no. 50 of 17 May 2022, converted, with amendments, by Law no. 91 of 15 July 2022" . Among these, priority shall be given to the project types to be identified by decree of the Minister of the Environment and Energy Safety, in agreement with the Minister of Culture and the Minister of Infrastructure and Transport, taking into account the following criteria:
(a) reliability and technical and economic sustainability of the project in relation to its implementation;
b) contribution to the achievement of the decarbonization objectives set out in the PINIEC;
c) relevance to the implementation of the investments of the National Recovery and Resilience Plan;
d) enhancement of existing works, plants or infrastructure.
Pending the adoption of the decree, priority is to be given to, in order to:
- the projects of new hydroelectric storage plants by pure pumping that provide, also through the restoration of the conditions of normal operation of the existing reservoirs, an increase in the volumes of water that can be stored (provision added at the time of conversion);
- the works and plants for geological storage, capture and transport of CO2, as well as their functionally connected plants, and industrial plants subject to conversion into biorefineries (provision added on conversion);
- projects concerning green or renewable hydrogen installations referred to in number 6-bis) of Annex II to Part Two and related installations from renewable sources;
- projects for new installations concerning hydroelectric derivations with a capacity of up to 10MW (provision added on conversion);
- revamping and repowering of plants powered by wind or solar sources;
- on-shore photovoltaic and on-shore agri-voltaic projects with a nominal capacity of at least 50 MW and on-shore wind projects with a nominal capacity of at least 70 MW.
A quota of no more than three-fifths of the Commissions' processing is reserved for such projects, without prejudice to the chronological order of priority of the date of communication to the proponent of the publication of the documentation on the competent authority's website, which is valid for all projects, whether priority or not.
To accelerating the assessment of projects, the Decree also provides that, in the event of delay in the issuance of the EIA measure, the President of the EIA-SIA Commission and the President of the PNRR-PNIEC Technical Commission may order the assignment of the project to the EIA-SIA Technical Commission, without prejudice to the application of the procedural discipline relative to the environmental impact assessments of PNRR and PNIEC projects.
Stringent and innovative provisions are introduced with reference to the EIA screening procedure pursuant to Article 19 of Legislative Decree No. 152/2006:
(i) within fifteen days from the expiration of the term of 30 days from the communication to the interested administrations of the publication of the documentation on the portal, the competent authority may request clarifications and integrations from the proponent in order to exclude the submission of the project to the EIA procedure, assigning a term not exceeding thirty days, after which, in the absence of the requested integrations, the request is considered rejected
(ii) the competent authority adopts the measure of verification of subjection to EIA within 60 days from the date of expiration of the term of 30 days from the communication to the interested administrations of the publication of the documentation on the portal or, in the case of requests for clarifications or documental integrations, within 45 days from the receipt of the clarifications or integrations requested. In exceptional cases, the competent authority may extend, for a period not exceeding 20 days, the deadline for the adoption of the EIA screening measure, promptly notifying the proponent, in writing, of the reasons justifying the extension.
The Decree also provides that the measure of verification of subjectivity to EIA cannot have an effectiveness of less than five years, indicated in the measure itself, taking into account the expected time for the realization of the project, the necessary authorization procedures, and any proposal formulated by the proponent. Once this term has elapsed without the project having been carried out, the procedure must be repeated, without prejudice to the granting of a specific extension by the competent authority, at the request of the proponent accompanied by the relevant findings concerning the environmental context of reference and any changes, including design changes, that have occurred. Also in this case, within 15 days from the request, the competent authority may request additional documentation, assigning a peremptory term of no more than twenty days for the relative submission. If the documentation is again incomplete, the application shall be deemed withdrawn. Except in the case of a change in the environmental context of reference or modifications, including design modifications, the measure with which the extension is ordered does not contain prescriptions that are different and additional to those already provided for in the original measure of EIA subjectivity verification. If the petition is filed at least 90 days before the expiration of the effective date of the measure, the latter continues to be effective until the competent authority adopts the determinations relating to the granting of the extension.
The Environmental Decree then introduces, as a partial exception to the general principle under Law No 241/1990 - according to which silence-consent does not operate in environmental matters -, the mechanism of silence-consent in relation to the acceptance of the request to suspend the procedure up to a maximum of 12 days in the event that, as a result of the consultation or the submission of counter-deductions by the proponent, it becomes necessary to amend or supplement the project documents or the documentation acquired. The aforementioned request is deemed to have been granted if the EIA-SIA Commission or the PNRR-PNIEC Technical Commission remains silent after seven days from the suspension request.
A further novelty concerns the verification by the Ministry of Culture of the adequacy of the landscape report attached to the EIA (art. 24, paragraph 5, Legislative Decree 152/2006). Also in this case, with the identical mechanism foreseen before the Technical Commissions, in the event of a request for integration, if the proponent does not respond within the time limit indicated by the authority (in any case not exceeding 30 days, extended by a further 30 days at the proponent's request), the EIA petition is automatically considered rejected and the Ministry of Culture notifies the proponent and the competent authority, which is obliged to proceed with the filing.
With the aim of affecting the recent jurisprudential orientations of the Council of State (ex multis, Council of State. nos. 7299/2024, 4098/2022), for which it can be considered that the landscape authorization is included in the scope of the EIA measure issued by Resolution of the Council of Ministers pursuant to Article 5, paragraph 2, lett. c-bis) of Law 400/1988, the Decree also introduces art. 25, paragraph 2-quinquies of Legislative Decree 152/2006, providing that the agreement of the competent director general of the Ministry of Culture includes the landscape authorization where the landscape report allows a positive assessment of the landscape compatibility of the project. The Ministry of Culture is also required to adequately justify any rejection and, in the event of a favourable opinion of the VIA-VAS Technical Commission or PNRR-PNIEC Technical Commission, Article 5, paragraph 2, letter c-bis) of Law 400/1988 may be applied, overriding the disagreement with a Resolution of the Council of Ministers that replaces to all effects the favourable EIA measure and includes the landscape authorisation where the landscape report is complete and allows a positive assessment of landscape compatibility.
Lastly, the conversion law amended the provision of the Environmental Decree that had most worried operators in the version published in the Official Gazette, last 18 October: in paragraph 2 of Article 1 it was, in fact, provided that "for projects of energy production from renewable sources, the proponent shall attach to the EIA application pursuant to Article 23 of Legislative Decree No. 152 of 2006 also a declaration certifying the legitimate availability, for any reason, of the surface and, if necessary, of the resources necessary for the implementation of such projects".
The provision seemed to make it necessary for all renewable energy production projects involving recourse to the EIA procedure, the immediate demonstration of the availability of the surface area affected by the plants.
This claim, however, appeared, from the outset, to be completely unreasonable, considering the expense commitment (the acquisition of the availability of the land) in an completely transitory project phase, also considering that during the EIA procedure itself there are frequent requests by the authorities to move the plant components and the relative connection works. At the same time, the regulation appeared to fail to take due account of the circumstance that the availability of areas is often necessarily obtained after the authorization phase through subsequent expropriation - as often happens in the case of wind power - or public concession on state land - in the case of hydroelectric power -.
The conversion law has fully replaced the aforementioned paragraph 2 of Article 1, providing that for energy production projects from photovoltaic, thermodynamic solar, biomass or biogas sources, as well as the production of biomethane (thus excluding wind and water sources), the proponent of the EIA measure must attach a self-declaration attesting to the legitimate availability, for any reason whatsoever, of the area on which the plant is to be constructed, without prejudice to the consequent procedures for the interconnection works.
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.
