Energy Practice Legal Update - Local Residents Briefing Session Procedures Under The Amended Renewable Energy Act

1. Introduction

The Act on Special Measures for the Promotion of the Use of Electricity from Renewable Energy Sources (Act No. 108 of 2011) has recently been amended and now has come into effect on April 1, 2024 (the "Amended Renewable Energy Act").

Featured among the amended items, this paper provides a summary of the procedures for briefing sessions for local residents ("Briefing Sessions")¹ . In order to flesh out the requirements of the Briefing Sessions, the amended Regulations for Enforcement of the Act on Special Measures for the Promotion of the Use of Electricity from Renewable Energy Sources² (METI Ordinance No. 46 of 2012; the "Amended Enforcement Regulations"), the "Implementation Guidelines for Briefings and Prior Notification Measures"³ (the "GL"), and the results of the public comments on the Amended Enforcement Regulations and the GL (the "Public Comment")⁴ were promulgated and published on February 20, 2024⁵. 

The business operator will be required to obtain new approval for its renewable energy power generation business plan or approval for amendments to its renewable energy power generation business plan, and holding a Briefing Session will be a prerequisite for such approval (Article 9, Paragraph 4, Item 6, and Article 10, Paragraphs 1 and 4 of the Amended Renewable Energy Act, and Article 4-2-3 of the Amended Enforcement Regulations) if,

1. a business operator who operates a high/extra-high voltage renewable energy power generation facility with an output of 50 kW or more that is the subject of an application for new approval for, or approval of changes to, its FIT/FIP system, and who intends to engage in a renewable energy power generation business, desires to obtain new approval for its FIT/FIP system;
2. a business operator who operates a low voltage renewable energy power generation facility with an output of less than 50 kW that is the subject of an application for new approval for, or approval of changes to, its FIT/FIP system, and who intends to engage in renewable energy power generation business in an area that is highly likely to have an impact on the neighboring regions and the surrounding environment (i.e., an area where certain development permits and licenses are required), desires to obtain new approval for its FIT/FIP system; or
3. an approved business operator who has already obtained approval for its FIT/FIP system and meets the requirements for the size of power sources and the place of installation of power sources, as described above, desires to change a certain matter in its renewable energy power generation business plan⁶ ,

In addition, Chapter 5, Section 2 of the GL (page 28) states that when an approved business operator changes7 , both the former and the new approved business operators must, in principle, be present at a Briefing Session.

Therefore, when entering into a transaction that falls under the category of a business transfer, merger or company split, it would be best to stipulate in the contract for such a transaction the obligation to cooperate with each other, and to determine a division of their roles for participation in the Briefing Sessions and other relevant procedures.

2. Procedures Required Before Holding a Briefing Session

2.1 Overview

In order to hold a Briefing Session, the following steps must be taken: (i) determine the matters to be explained and prepare handouts, (ii) consider the scope of target "local residents" (including consultation with municipal governments), and (iii) determine the venue/content of invitations, and deliver the invitations. In principle, a Briefing Session must be held at least three months prior to the application for approval or the application for approval of amendments, and it is therefore necessary to set a schedule for the project taking this time frame into consideration (Article 4-2-3, Paragraph 2, Item 7 (a) to (e) of the Amended Enforcement

2.2 Step 1: Determine the matters to be explained and prepare handouts Regulations).

The items and matters that must be explained when holding a Briefing Session are listed in Table 1 (Article 4-2-3, Paragraph 2, Item 3 of the Amended Enforcement Regulations). If a Briefing Session(s) has/have already been held, it is sufficient to explain the items that have been changed from those explained in the previous Briefing Session(s) (the main sentence of Article 4-2-3, Paragraph 2, Item 3 of the Amended Enforcement Regulations).

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Originally published  Apr 2024

Footnotes

1. Prior notification measures, which are required especially for low-voltage projects, are not discussed in this paper.

2 A table comparing the former and the revised Regulations for Enforcement of the Act on Special Measures for the Promotion of the Use of Electricity from Renewable Energy Sources can be found at the following link: https: //www.enecho.meti.go.jp/category/saving_and_new/saiene/kaitori/dl/announce/20240220.pdf

3. https://www.enecho.meti.go.jp/category/saving_and_new/saiene/kaitori/dl/announce/20240220_setsumeikai.pdf

4. https://public-comment.e-gov.go.jp/servlet/PcmFileDownload?seqNo=0000269365 https://public-comment.e-gov.go.jp/servlet/PcmFileDownload?seqNo=0000269364

5. For more information on the cases where a Briefing Session will be held prior to the application for approval of amendments, please see our previous newsletter titled "Introduction to the "Implementation Guidelines for Briefings and Prior Notification Measures" in Preparation for the Enforcement of the Revised Renewable Energy Act."

6. Some specific examples are changes in (i) matters listed in Article 9, Paragraph 2, Items 3-6 and 8 of the Amended Renewable Energy Act, and (ii) matters listed in Article 9, Paragraph 3 of the Amended Renewable Energy Act, except for minor changes (specifically, changes in matters other than those listed in Article 9 of the Revised Enforcement Regulations). A Briefing Session is required when a lot number is added or changed as a change in the location of the renewable energy power generation business, and when a plan is changed to delete a lot number (Public Comment to the GL No. 122).

7. However, if only the beneficial owner changes, the approved business operator itself will be required to att end a Briefing Session, and the former beneficial owner will not necessarily be required to attend (Note 36 o f the "Working Group for Long-term Use of Renewable Energy Resources and Community Coexistence: The Second Report." See https://www.meti.go.jp/shingikai/enecho/denryoku_gas/saisei_kano/kyosei_wg/pdf/20231128 _1.pdf)

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.