On 5 December, the Regional Law no. 20 ‘Urgent measures for the identification of areas and surfaces suitable and unsuitable for the installation and promotion of renewable energy sources (RES) plants and for the simplification of authorisation procedures’, adopted in implementation of the Ministerial Decree of 21 June 2024, published in the Official Gazette of 2 July 2024, no. 153, the so-called ‘Suitable Areas Decree’, was published in the Official Bulletin of the Sardinia Region, no. 65.
The measure has been in force since 6 December, i.e. the day following its publication, and is applicable not only to plants whose authorization procedure was commenced after the date of entry into force of the law, but also to plants whose authorization procedure is underway and even to plants already authorized that have not implied an irreversible change to the state of the sites, whose authorization titles will be ineffective.
The law provides for the abrogation of the previous regional law of 3 July 2024, no. 5, concerning ‘Urgent measures for the protection of the landscape and environmental assets’, introducing the so-called ‘Sardinian moratorium’, and, consequently, the withdrawal of the challenge to its legitimacy raised by the Council of Ministers before the Constitutional Court.
Sardinia is thus the first Italian region to have implemented the ‘Suitable Areas Decree’, with the ‘declared’ aim of identifying ‘suitable areas and suitable, unsuitable and ordinary areas, in order to favour the ecological, energy and climate transition’, guaranteeing the minimization of the environmental and landscape impact of renewable energy plants, as well as their spatial planning in compliance with both the EU's decarbonization and energy transition obligations and the regional overall power objectives, with the aim of maximizing the areas to be identified in order to facilitate the regional overall power objectives to be reached by 2030, as set out in the Decree on Suitable Areas.
In order to be able to identify the areas and surfaces suitable and unsuitable for the installation and promotion of renewable energy source plants, the measure firstly provides for the primary differentiation between plant sizes, identifying
a. small size plants in photovoltaic, thermodynamic, and agri-voltaic plants with a nominal power less than or equal to 1 MW; wind power plants with a maximum overall height less than or equal to 20 meters; power generation plants from biomasses, landfill gas, residual gas from purification processes and biogas with a nominal power less than or equal to 200 kW; geothermal plants with a temperature of the fluid found less than or equal to 90 degrees centigrade; in storage plants with a nominal installed power less than or equal to 500 kW;
b. medium size plants in photovoltaic, thermodynamic, agri-voltaic plants with a nominal capacity greater than or equal to 1 MW and less than or equal to 10 MW; wind power plants with a total maximum height greater than 20 meters and less than or equal to 100 meters; biomass, landfill gas, sewage treatment plant gas and biogas power generation plants with a nominal capacity greater than 200 kW and less than or equal to 1 MW; geothermal power plants with a temperature of the fluid retrieved greater than 90 degrees centigrade and less than or equal to 150 degrees centigrade; storage plants with a nominal installed capacity greater than 500 kW and less than or equal to 1.2 MW;
c. large size plant in photovoltaic, thermodynamic, agri-voltaic plants with a nominal capacity exceeding 10 MW; wind power plants with a total maximum height exceeding 100 meters; power generation plants from biomass, landfill gas, sewage treatment plant gas and biogas with a nominal capacity exceeding 1 MW; geothermal power plants with a temperature of the fluid retrieved exceeding 150 degrees centigrade; storage with a nominal installed capacity exceeding 1.2 MW.
In consideration of the different plant sizes in Annexes A, B, C, D and E, as well as paragraphs 9 and 11, art. 1, L.R. 20/2024, unsuitable areas are therefore identified, in a far greater number than the suitable ones, identified, instead, in Annex F as follow
a) disused industrial areas, with the exception of large-scale wind farms
b) urban and special waste landfill areas, exclusively in the service areas outside the landfill body, limited to photovoltaic plants and small and medium sized wind farms
c) for the installation of photovoltaic plants, the sites and plants at the disposal of the Italian State Railways group companies and railway infrastructure managers
d) port areas, excluding marinas, limited to photovoltaic and wave energy production plants
e) airport areas, limited to photovoltaic plants
f) the areas pertaining to major roads already subject to transformation, limited to small-scale photovoltaic systems
g) limited to photovoltaic plants and small and medium sized wind power plants, first and second category quarrying areas
h) the areas of sites subject to reclamation proceedings, limited to photovoltaic plants and small and medium sized wind farms as well as biomass plants
i) the sections of water of the basins of the Regional Multi-sector Water System, as identified by the Water System's managing body, not used by fire-fighting aerial vehicles, and relevant appurtenances, limited to hydroelectric plants and floating photovoltaic plants up to 10 MW
j) for photovoltaic installations and small and medium-sized wind power plants, homogeneous urban planning zones D and zones G for commercial and logistical use
k) with the exclusion of large wind power plants, the industrial areas managed by the provincial industrial consortia, the industrial areas of regional interest, and the PIPs referred to in Article 27, Law No 865 of 22 October 1971
l) the homogeneous urban planning zones G referred to in Decree No 2266/U of 20 December 1983 of the Regional Councilor for Local Authorities, Finance and Town Planning for renewable energy, with the exception of large-scale wind farms
m) for the installation of photovoltaic systems, the infrastructure areas of the homogeneous urban planning zones G relating to the transport sector (roads, railways, ports and airports), excluding marinas, and to technological installations (waste cycle, water cycle, drinking water purifiers, sewage treatment plants, lifting plants, energy cycle)
n) limited to the installation of small and medium sized wind farms, the infrastructure areas of the homogeneous urban areas G, relative to technological plants (waste cycle, water cycle, drinking water purifiers, sewage treatment plants, lifting plants, energy cycle).
Each hypothesis contains specific technical conditions to which the construction of the plants is subject.
The construction of RES plants and storage facilities, regardless of whether they are located in eligible areas or in ordinary areas, is also subject to compliance with the requirements and prescriptions set forth in Annex G, as well as to compliance with the specific territorial, urban planning, construction, landscape, with particular reference to the Regional Landscape Plan, environmental and technical prescriptions pertaining to the area and the plant subject of the authorization application.
As provided for by Art. 1, paragraph 4, with regard to photovoltaic plants, without prejudice to compliance with the applicable territorial, town planning, building, environmental and landscape regulations, with particular reference to the provisions contained in the Regional Landscape Plan (PPR) and in the other town planning instruments, as well as the technical requirements per type of plant set forth in Annex G of the same regional law, suitable areas are identified as ‘the roofing surfaces of buildings, such as, by way of example and not limited to, buildings, canopies, pergolas, shelters, public and private, of any kind, legitimately built or to be built in compliance with the provisions of the town planning instruments, and the relevant cumulation systems’. Of particular relevance, moreover, is the subsequent clarification according to which, regardless of the recognition of suitable, unsuitable or ordinary areas (those for which the construction of RES plants is subject to case-by-case verification), ‘the construction of small-scale geothermal plants is always allowed, for which the authorisation discipline provided for by the regulations in force on suitable areas applies’.
The law also specifies, in the first part of paragraph 7, art. 1, that ‘if a plant project falls in an area included both in the areas defined as suitable, as per annex F, and in the areas defined as unsuitable, as per annexes A, B, C, D and E, the unsuitability criterion prevails’, while the restoration, complete reconstruction work on plants built before the law came into force and in operation in areas defined by the law as unsuitable, ‘are allowed only if they do not entail an increase in the gross occupied surface area and, in the case of wind farms, an increase in the total height of the plant’.
A further provision, Article 2 of the regional law, provides for the establishment, as from 2025, of a fund - fed by regional, national and European resources, with an initial endowment of Euro 678,000,000 for the years from 2025 to 2030 - for the granting of incentive measures, ‘both through the disbursement of non-repayable grants and through the use of financial instruments or through their combination’, in order to support the interventions aimed at the installation of photovoltaic and electricity storage systems for self-consumption and carried out by, in compliance with the requirements set forth in the same regulatory provision, (i) natural persons resident in Sardinia (ii) businesses and professionals with their operational headquarters in Sardinia; (iii) energy communities and other forms of self-consumption and sharing; (iv) municipalities, union of municipalities, provinces, metropolitan cities; (v) other regional, territorial public entities. These incentives are granted by means of an assessment procedure following a call for tenders, with special measures aimed at promoting energy communities.
The law also provides for simplification and acceleration measures for the promotion of RES plants, as well as measures to guarantee the implementation and reclamation of plant sites: firstly, in Article 3, municipalities are given the right to propose a preliminary application for the construction of a RES plant or storage within an area identified as unsuitable; this application, which is approved following a phase of ‘public debate’ by a qualified majority of the municipal council (or councils) whose territory is affected by the plant or storage, is finalized with the signing of an agreement with the Region; in the event that the aforementioned agreement is finalized, ‘the proponent has the option of submitting an application to the competent entities for the implementation of the intervention within the authorization regime envisaged for ordinary areas’, thus opting for the Simplified Authorization Procedure (PAS), or the Single Authorization (AU).
Secondly, for all RES plants and storage facilities and within one hundred and twenty days from the issuance of the authorization for their construction - and in any case before the submission of the notice of commencement of works -, Regional Law no. 20/2024 makes it incumbent on the authorized party to submit to the Regional Department of Industry a guarantee in an amount equal to the total value of the intervention in order to cover any failure to realize the plant or its realization in breach of the authorization issued, as well as to guarantee the decommissioning of the production plant, of the connected works and of the restoration works on the sites concerned. This provision also covers plants in the course of authorization and, with different mechanisms and timeframes, those already authorized for which work has not yet commenced, as well as plants for which work is in progress.
At the end of an overall analysis of the legislation (the destiny of which, in terms of a probable declaration of unconstitutionality, seems already sealed), the opportunities for building RES plants and accumulations appear, therefore, significantly reduced - as well as significantly conditioned by compliance with specific requirements - and it must be noted that the areas defined as ‘suitable’ represent only 1% of the entire regional territory: the law, whose application is foreseen, completely irrationally, even to plants that have already been authorized and whose works have already begun, manifests itself, therefore, as a further (illegitimate) restriction on the spread of renewables, constituting a new obstacle to the achievement of the imposed decarbonization objectives.
