Constitutional illegitimacy of the Calabrian law on biomass. Is the Sardinian Law on unsuitable areas destined to the same fate?

With decision no. 134 filed on 28 July, the Constitutional Court declared the illegitimacy of Article 14, paragraphs 1 and 2 of Calabrian Regional Law no. 36/2024 insofar as it prohibits the construction, in national and regional parks, of biomass energy production plants with a capacity exceeding 10 MW thermal (paragraph 1) and requires existing plants with a capacity exceeding 10 MW thermal to reduce it within six months of the law coming into force, under penalty of revocation of the authorisation (paragraph 2).

The Court, after preliminarily distinguishing biomass plants from other renewable energy installations[1] – which generally entail a lower environmental impact – found that although the Calabrian law does not impose a general ban on the construction of renewable energy plants throughout the region[2], it nevertheless violates Article 117, paragraph 3, of the Constitution. This article pertains to the matter of “production, transportation, and national distribution of energy” an area of concurrent legislative competence between the State (which sets the fundamental principles) and the Regions (which legislate in compliance with those principles)[3].

Indeed, while the new national regulatory framework assigns Regions a key role in identifying suitable and unsuitable areas for the installation of RES plants[4], the Court held that such declarations of unsuitability may not amount to a blanket, a priori prohibition. Rather, they merely indicate areas where installation may still be authorized, provided that an adequate assessment and strengthened justification are provided.

According to the Constitutional Court, any broader interpretation of the Regions’ power would directly conflict with the imperative to develop renewable energy sources, an objective that is crucial to environmental protection and to safeguarding the interests of future generations.

This is the first time the Court has ruled based on the principles set out in the Ministerial Decree on Suitable Areas (DM of 21 June 2024), issued pursuant to Article 20, paragraph 1, of Legislative Decree no. 199 of 2021. The decree established uniform principles and criteria for regional identification of areas suitable and unsuitable for RES plants, with the important clarification that unsuitability can never equate to an absolute and a priori prohibition.

In essence, while the new legislation enhances regional autonomy, it also aims to prevent unjustified restrictions - especially where there are no compelling reasons related to territorial or ecosystem preservation - which would run counter to the urgent need to develop renewable energy sources. This objective is of “crucial importance” precisely with regard to the “vital aim of environmental protection, also in the interest of future generations” (see decision no. 216 of 2022).

All this, while awaiting the Court’s decision on the Sardinian Regional Law (L.R. no. 20/2024), which, it is worth recalling, has effectively prohibited the installation of renewable energy plants on 99% of Sardinia's territory.

Written by Giovanni Battista De Luca, Paola Putignano and Ernesto Rossi Scarpa Gregorj.

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[1] The environmental issues associated with the installation of biomass plants, as highlighted in the National Integrated Energy and Climate Plan (PNIEC), which, on page 58, provides that their installation should be “guided in such a way as to favour high environmental quality and high efficiency plants, also considering the possibility of introducing restrictions on new installations in areas characterised by critical air quality situations”.

[2] The law only applies to biomass-fuelled plants in contexts where the need to protect the natural habitat is particularly strong – i.e. national and regional parks – and sets a power limit of 10 MW thermal.

[3] For the sake of completeness, it should be noted that the Constitutional Court also declared Article 14(2) of the regional law unconstitutional for violation of Articles 3 and 41 of the Constitution. According to the Court, this provision has the character of a legislative measure, since it refers solely to the Mercure power plant (the only biomass plant currently located in a national or regional park in Calabria) and is therefore intended to affect a single legal position, with the regional legislator intervening in matters normally entrusted to the administrative authority.

[4] The previous legislation allowed the identification of unsuitable areas exclusively “through a specific investigation” and, therefore, not by law but following an administrative procedure (paragraph 17 of the Guidelines referred to in the Ministerial Decree of 10 September 2010).