Energy Decree: last updates on renewable energies

Law Decree no. 17 of March 1, 2022, converted with amendments in Law no. 34 of April 27, 2022

The Energy Decree has been converted with amendments in law by Law no. 34 of April 27, 2022 and entered into force on April 29, 2022. It reports urgent measures aimed at containing the cost of electricity and natural gas and affecting the renewable energy sector.

The Energy Decree introduced some innovations on:

• authorization procedures for photovoltaic systems, floating PV systems and agrovoltaic systems;
• identification of suitable areas for renewables energy plants;
• new facilities for interventions in Southern Italy and biofuel promotion;
• public incentives.

Lexia Avvocati Energy team developed a document to illustrate in detail the innovations introduced by the Energy Decree.

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Semplifications of authorization procedures

Art. 9, 9-ter, 12, 16 of the Energy Decree

PAS and screening procedures

According to the Decree, that lists all the possible authorization procedures for the realization of renewable energy plants, PAS applies also to:

• PV Plants up to 20 MW and related works of connection to the high and medium voltage electricity grid located in areas of industrial, productive or commercial use. Localization includes landfills or landfill lots closed and restored or in quarries or quarry lots, not susceptible to further exploitation, for which the authority responsible for issuing the authorization has certified the completion of the recovery and environmental restoration activities;
• PV Plants up to 10 MW located in the so-called “suitable areas”, reported in the next chapter;
• agrovoltaic plants that adopt innovative integrative solutions with the assembly of the modules elevated from the ground, also providing for the rotation of the modules themselves. However, they should not compromise the continuity of agricultural and pastoral cultivation activities, also allowing the application of digital and precision agriculture tools. Moreover, they should not be more distant than 3 km from areas of industrial, craft and commercial use.

For the above-mentioned plants, the limit for the application of the “screening” procedure is raised to 20 MW, provided that the applicant submits a self-declaration stating that the plant is not located within areas qualified by the Regions as sensitive areas to territorial or landscape transformations (falling within the list referred to in letter f) of Annex 3 of the Ministerial Decree of 10 September 2010, art. 9 of the Energy Decree).

PAS application for Floating Plants

PAS is applicable also to PV Plants up to 10 MW, including the works functional to the connection to the electricity grid, placed in floating mode on the water surface of reservoirs and water basins, including reservoirs in disused quarries, or installed to cover irrigation channels (art. 9-ter of the Energy Decree).

Declaration of commencement of works (the so-called “DILA”)

Article 5, paragraph 3 of LD 28/2011 now lays down that, in case of non-substantial modifications leading to an increase in installed power and the need for further connected works, without increasing the occupied area, the execution of the connected works is subject to the art. 9 of the Energy Decree.

Simplified procedures for renewable energy plants located in the “Suitable Areas”

Art. 12 introduces new changes concerning DILA, PAS and AU applications in the so called “suitable areas”, according to art. 20 of LD 199/2021. The interventions apply to:

• construction and operation of new PV Plants and related works;
• repowering, renovation and complete reconstruction of existing PV Plants and related works without changing the area involved.

These are the related procedures;

• DILA: in case of plants’ capacity </= 1 MW,
• PAS: in case of plants’ capacity between 1 MW and 10 MW,
• AU: in case of plants’ capacity > 10 MW

It is important to consider that such procedures are applicable without prejudice for the specific – and more simplified – procedures set in art. 6 paragraph 9-bis, 6-bis and 7-bis paragraph 5 of LD 28/2011¹

Simplified Unique Model

Plants having a capacity between 50 KW and 200 KW, built according to art. 7, paragraph 5 of the LD 28/2011, will be subject to the Simplified Unique Model document, once the related decree will be issued, that is 60 days after the Energy Decree entry into force (art. 10 of the Energy Decree).

Identification of suitable areas for renewables energy plants

Art. 10 – bis, 12, 18 of the Energy Decree

With regard to the identification of suitable areas for RES plants, art. 12 of the Energy Decree excluded that the opinion of the landscape authority is binding in case of authorization procedures concerning plants to be installed in suitable areas, including environmental impact assessment procedures.

Furthermore, significant amendments have been introduced with regard to the identification of the suitable areas for renewables energy plants.
In the areas for industrial use, the construction of solar photovoltaic and thermal plants is allowed, provided that these plants cover an area not exceeding 60% of the industrial area of relevance.
Moreover, art. 20 of the LD 199/2021 provides for the issuing by the MITE of decrees concerning principles and criteria for the subsequent identification, by the Regions, of suitable areas.

In the meanwhile, article 20, paragraph 8 of LD 199/2021 classified as suitable areas:

• only for PV Plants: sites on which there are already present PV plants and on which, without changing the occupied area, substantial modification works are carried out for renovation, repowering or complete reconstruction of them, also with the addition of storage systems (“sistemi di accumulo”) with a capacity not exceeding 3 MWh for each MW of power of the photovoltaic plant;
• only for PV Plants: even with modules on the ground (in the absence of related constraints in the code of cultural heritage and landscape), the following areas are considered suitable:
  • agricultural areas, enclosed within a perimeter whose points are no more than 300 meters from areas of industrial, artisanal and commercial use, including sites of national interest, as well as quarries and mines;
  • areas inside industrial plants and factories, as well as areas classified as agricultural enclosed within a perimeter whose points are no more than 300 meters away from the same plant or factory; 3) areas adjacent to the freeway network within a distance of no more than 150 meters (art. 12 of the Energy Decree);
• sites and plants at the disposal of companies in the Italian State Railways group and railway infrastructure managers, as well as freeway concessionary companies (art. 18 of the Energy Decree);
• sites where plants from the same source are already installed and where non-substantial modification works are carried out;
• the areas of sites undergoing reclamation (“bonifica”);
• quarries and mines that have been closed down, not recovered or abandoned or in conditions of environmental degradation.

New facilities for interventions in the regions of Southern Italy

Art. 14 of the Energy Decree

Article 14 of the Energy Decree has provided for the new type of contribution, in the form of tax credit (“credito di imposta”), intended for companies that make investments related to the production of energy from renewable sources in the following regions: Abruzzo, Basilicata, Calabria, Campania, Molise, Puglia, Sardinia and Sicily. Such contribution is also applicable if energy efficiency is achieved through the implementation of storage systems combined with photovoltaic systems.

As per article 14, paragraphs 2 of the Energy Decree, the facilitation is limited to the “costs of the additional investments necessary to achieve a higher level of energy efficiency and for the self-production of energy from renewable sources within the production structures“. In addition, article 14, paragraph 1 of the Energy Decree states that the regulation also specifies that this credit is not intended to contribute to the formation of business income or the taxable base of the regional tax on production activities.

It is then recognized a cumulability with other facilities that have as their object the same costs, provided that such accumulation, taking into account also the non-competition to the formation of income and the taxable base of the regional tax on production activities, does not imply the exceeding of the cost incurred (art. 14, paragraph 1 of the Energy Decree).

Biofuel promotion

Art. 17 of the Energy Decree

Moreover, art. 17 of the Energy Decree aimed to promote the use of biofuels to be used in purity. Furthermore, the “Fund for the decarbonisation and green conversion of refineries falling within the remediation sites of national interest” has been set up.

Public incentives

Art. 11 of the Energy Decree

• agrovoltaic plants, provided that monitoring systems are implemented to verify the impact on crops, water saving, agricultural productivity and continuity of the activities of the farms. Such monitoring systems will have to comply with the guidelines to be adopted by the Council for Research and Agriculture and the GSE within 30 days from the effective date of the conversion law;
• floating solar photovoltaic systems to be installed on wet surfaces or on artificial reservoirs of small or large dimensions, where compatible with other uses (article 65, paragraph 1-septies of LD 1/2012);
• Finally, it is foreseen that the plots of land on which the agrovoltaic plants are located may not be object of further requests for the installation of new photovoltaic plants for 10 years following the issue of public incentives, even if the land has been subject to splitting (“frazionamento”) or transfer (“trasferimento”) (art. 65 paragraph 1-octies of LD 1/2012).

Contact us for more information on the news of the Energy Decree.

Avv. Pinella Altiero, Avv. Nicoletta Bezzi

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[1] Art. 6 paragraph 9-bis of Legislative Decree 28/2011- PAS applicable to: (i) PV Plants up to 20 MW in areas for industrial, production or commercial use, or in landfills or landfill lots that are closed and restored (or in quarries or lots of quarries not susceptible to further exploitation); (ii) plants up to 10 MW in areas classified as suitable; (iii) agrovoltaic plants distant not more than 3 km away from industrial, artisanal and commercial areas; Art. 6-bis of Legislative Decree 28 / 2011- cases of application of the DILA. Art. 7-bis paragraph 5 of Legislative Decree 28/2011 – exemption from permits and authorizations for PV and termic Plants on buildings or on above ground structures and artifacts other than buildings.