Constitutional court judgment No. 121/2022: Constitutional illegitimacy of the regional law No. 30/2021 in Basilicata

With judgment No. 121/2022, the Constitutional Court upheld the appeal filed on September 30th, 2021 by the Council of Ministers concerning the constitutional illegitimacy of the article 1, paragraph 1, letter (a) and (b) and of the article 2, paragraphs 1, 2 and 3 of the regional law No. 30 of July 26th, 2021, by means of which the Basilicata region had made amendments to the regional laws No. 1/2010 and No. 8/2012.

The censured rules

Basilicata Region had provided important restrictions in relation to the installation and construction of renewable energy plants.

Photovoltaic plants

In relation to photovoltaic plants, it has been provided that:

  • the maximum nominal capacity of 10 MW, pre-existing in the PIAER (“Piano di indirizzo energetico ambientale regionale”), referred exclusively to the so-called “brownfield” areas, i.e. the areas referred to in paragraph 16, point 1, letter d), of the Ministerial Decree of September 10, 2010, which are identified in the areas “already degraded by anthropic activities, past or ongoing […], including industrial sites, quarries, landfills, contaminated sites pursuant to Part Four, Title V of Legislative Decree No. 152 of 2006
  • for all other areas (the so-called “greenfield“), a new power limit of 3 MW had been introduced, preserving the possibility of increasing it by 20% if the projects include interventions to support the local development;

Wind power plants

In relation to wind power plants, it was specified that these projects, in order to be considered suitable for the obtainment of “the single permit (“Autorizzazione Unica”) under Article 12 of Legislative Decree 387 of 2003“, should have to meet, regardless of the area in which they are built, the following minimum technical conditions:

  • annual average wind speed at 25 meters above ground equal to 6 m/s (compared to the previous value of 4 m/s);
  • hours of operation of the wind turbine equal to not less than 2500 hours (compared with the previous 2000 hours);
  • anemological study to be included in the final project, carried out by a certified and/or accredited companies, having as its object wind surveys and data collection for a minimum duration of at least three years (compared to the previous duration of 1 year).

The decision

Constitutional Court declared the constitutional illegitimacy of the aforementioned rules due to their conflict with the fundamental principle of “national energy production, transportation and distribution” set forth in Article 117, paragraph 3 of the Constitution, as well as due to their conflict with the principle laid down in EU law of maximum dissemination of renewable energy sources.

According to the Court, indeed, the abovementioned provisions were intended to provide binding requirements that left no margin of discretion to the administration, conditioning the very start of the authorization procedure or, in any case, precluding its positive outcome.

For this reason, the Court provides that “the hermeneutical canons referred to above, assign to the provisions under consideration the sense of a crystallization by law of the requirements, which compresses the assessment reserved for the authorization procedure, in open contrast to the fundamental principles of “national energy production, transport and distribution.

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