A law draft for the revival of nuclear in Italy

On 28 February, the Council of Ministers approved the draft law on nuclear (the ‘DDL Nucleare’ or ‘DDL’). 

For a more complete analysis of the document, it seems useful to also delve into the contents of the related Illustrative report (“Illustrative Report”) for which the DDL delegates the government to define a regulatory framework for the production of energy from sustainable nuclear sources suitable for attracting private and public investment and is part of the strategic policies aimed at ‘ensuring the supply, economic development, national sovereignty and the country's independence’ in the geopolitical context, within the framework of decarbonization goals and also aiming at ‘cost sustainability for end users (domestic and non-domestic) and the competitiveness of the industrial system’.

SMR, AMR, microreactors, and fusion: new technologies that remove constitutional barriers and respect the principle of technology neutrality

In this broad scenario, the government considers it necessary to equip itself with a supply of electricity produced on a continuous basis over time being convinced that the goals of decarbonization and energy independence could hardly be achieved with renewable sources alone, which are characterized by the non-programmability and non-complete predictability of production, thus recalling the second scenario outlined in the PNIEC, according to which, by 2050, nuclear energy can cover between 11% and 22% of demand, with 8-16 GW of installed nuclear capacity.

The Illustrative Report points out that the technologies - SMRs (Small Modular Reactor), AMRs (Advanced Modular Reactors), microreactors and nuclear fusion power - besides still being under development should ensure high standards of safety and efficiency. It follows that, the current regulatory intervention would not find any obstacle in the referendums by which Italy renounced, in 1987 and 2011, the production of energy from nuclear sources, also in light of constitutional jurisprudence, which sees a limit descending from previous referendum abrogations, only if, over time, there had been ‘no change in either the political framework or the factual circumstances’ (Constitutional Court, Sent. 199/2012). 

The Illustrative Report also recalls the principle of technological neutrality for which it should be the market that chooses among the various options the most effective and competitive ones.  To date, however, there is no information available regarding the cost of new technologies.

Next steps: related terms exceed the duration of the legislature

Specifically, Article 1 of the DDL, recalling the purposes already analyzed, provides that the Government shall exercise the delegation of authority within 12 months of the law's entry into force, adopting one or more legislative decrees to regulate the production of nuclear energy in Italy, including for the purpose of hydrogen production. Within 24 months of the entry into force of each decree, the government may adopt one or more legislative decrees with supplementary and corrective provisions, including for the purpose of drafting a single text. 

There is therefore a very real likelihood that a complete regulatory framework applicable to new investments in energy production from renewable sources will not be defined during the current legislative term.

The provisions of the DDL

Among others, the delegation is concerned with: 

(i) the preparation of an organic regulation of the entire life cycle of nuclear, from experimentation and design to the licensing of plants, their operation, and the management, storage and disposal of radioactive waste and the decommissioning of plants, in compliance with quality and safety standards guaranteed and validated by international and supranational bodies; 

(ii) the delivery by project promoters of adequate financial and legal guarantees to cover the costs of construction, operation and decommissioning of the plant and for the risks, including those not directly attributable to them, arising from nuclear activity; 

(iii) the regulation of ways to support the construction of plants and the production of energy from sustainable nuclear sources; 

(iv) the regulation of the testing, siting, construction and operation of new plants for the production of energy from sustainable nuclear sources, plant for temporary storage as well as, if not processable, recyclable or reusable, final disposal, radioactive waste and spent fuel;

(v) the regulation of decommissioning and dismantling of existing nuclear plants on the national territory;

(vi) ways of promoting research and development activities, including through forms of incentives for related investments; 

(vii) the discipline on safety, supervision and control, including through the establishment of an independent administrative authority and the reorganization or abolition of the bodies and entities with competencies in this area.

In Article 3, the DDL sets guiding principles and criteria for the drafting of legislative decrees, including:

(i) as to authorization aspects: (a) the provision of a single permit for the construction and operation of the plants that also constitutes a variant to the urban planning instruments in force; (b) the provision that the interventions are of public utility, nondeferrable and urgent and that the permit may include, where necessary, the declaration of immovability and the affixing of the constraint preordained to the expropriation of the property included therein; (c) the provision of integrated enabling procedures involving the Ministry of the Environment and Energy Security, respecting the powers of the independent authority to be established; 

(ii) as to economic, guarantee and incentive aspects: (a) the provision of adequate financial instruments, with charges to be borne by the licensed entity, to guarantee the management of the entire life cycle of the plant itself, up to final decommissioning, including the management of radioactive waste and spent fuel; (b) the identification of the instruments of guarantee as well as financial and insurance coverage, to be borne by the operator of nuclear activities, against risks related to the operation of such activities, including for reasons independent of the operator himself; (c) the determination of the criteria for the allocation of any forms of support for operators.

The location of the plants

Then there remains the issue of the location of new power plants and nuclear waste repositories in a country where communities often struggle to accept even the installation of photovoltaic modules and wind turbines. It is no coincidence that there a number of references to territorial contexts such as the ‘promotion and enhancement of the territories concerned’, ‘the provision of modalities for the participation of the qualified entity in the promotion, development and enhancement of the territory affected by the location of the plant, giving preference to modalities based on agreements between the entity itself and the administrations concerned’;  the ‘strict observance of the principle of loyal cooperation with the ‘circuit’ of territorial authorities for all cases in which their involvement is constitutionally necessary’, the ‘provision of forms of capillary information towards the specific populations affected by the location of the facilities, as well as consultation with them’.