Notes On Law Decree No. 77 Of July 31, 2021 Of The Italian Government, Enacting The Governance Of The National Recovery And Resilience Plan And Initial Measures To Strengthen Administrative Structures And Speed Up And Streamline Administrative Procedures – So Called “Decreto Semplificazioni Bis” Converted Into Law No. 108 Of July 29, 2021.

Law – Decree no. 77 of May 31, 2021, (hereinafter the “Decree”) converted into Law no. 108 of July 29, 2021, provides for a series of changes with reference to both the simplification of administrative procedures and the Green Economy, whose main ones are outlined here below.

• Under Title I of the Decree, amendments can be identified to simplify and speed up the “Environmental and Landscape Procedure”:

A. Introduction and qualification of the National Recovery and Resilience Plan – Piano Nazionale di Ripresa e Resilienza – and the Integrated National Energy and Climate Plan – Piano Nazionale Integrato per l’Energia e il Clima.

The National Recovery and Resilience Plan (hereinafter “NRRP”) aims at modernizing the country by updating national strategies on sustainable development and mobility, environment and climate, hydrogen, automotive, health sector.
The Integrated National Energy and Climate Plan (hereinafter “INRCP”), sets out national targets on energy efficiency, renewables and reduction of CO2 emissions, as well as targets on energy security, interconnections, single energy market and competitiveness, development of and sustainable mobility, outlining for each of them the measures that will be implemented to ensure their achievement.

B. Introduction of a new single environmental permit – Provvedimento Unico Ambientale, (hereinafter “SEP”) under Article 22 of the Decree, aimed at providing certainty of timing and facilitating procedural enforcement;

C. Introduction of the single regional authorization permit (hereinafter “SRAP”) pursuant to Articles 23 and 24 of the Decree. For the purposes of procedural simplification, it is envisaged the calling of a preliminary unified authorizing public authorities meeting suitable for facilitating the collection of documents for preliminary investigation purposes.

D. Article 17 of the Decree creates a new special central body, the NRRP-INRCP Technical Commission, which replaces and improves the INRCP Commission.

E. Article 19 of the Decree, entitled “Provisions relating to the procedure for verifying eligibility for Environmental Impact Assessment (“EIA”) and prior consultation”, speeds up the procedure for verifying eligibility for the EIA, by reducing the time limits for the submission of remarks by the involved parties.

F. Acceleration of procedures for renewable energy sources-interventions and simplifications also in relation to neighboring areas, storage and circular economy.

Looking at the most interesting provisions on procedural simplifications we see that:

  • Article 19 of the Decree introduces general acceleration measures aimed at verifying eligibility for the EIA by providing a final deadline for the issuance of the EIA equal to 45 days starting from the deadline provided for the public remarks, equal to 30 days as from the date of online publication of the preliminary environmental study for a total of 75 days. In order to assess whether the project shall be eligible for the EIA or not, the competent authority may request clarifications and additions from the applicant. In this case, the applicant may request, once only, the suspension of the time limits, for a period not exceeding 45 days, for the submission of the requested clarifications and integrations. If the applicant does not submit the required documentation within the prescribed time limit, the application is deemed to be rejected.
  • Article 20 of the Decree introduces general acceleration measures aimed at reducing the time needed to issue the EIA:
    ▪ In the case of projects falling under the competence of the State, with the exception of those referred to in Article 8, paragraph 2-bis (reported in the next point below), the competent authority, within the term of 60 days as from the conclusion of the consultation phase referred to in Article 24, adopts the EIA measure after obtaining the opinion of the competent General Director of the Ministry of Culture within the term of 30 days. ▪ In the case of (i) projects described in article 8 paragraph 2-bis, included in the NRRP, as for (ii) projects financed under the Supplementary Fund and for (iii) projects implementing the INRCP, there is a reduction in the time limit provided for the issuance of the EIA: the PRNN and INRCP Commission shall express their opinion within 30 days from the conclusion of the consultation phase referred to in Article 24 and, in any case, within 130 days from the date of publication of the documentation referred to in Article 23. Within the following 30 days, the General Director of the Ministry of Ecological Transition adopts the EIA measure. – Articles 23 and 24 introduce a preliminary phase to the single regional authorization permit (SRAP) with the presence of a preliminary unified authorizing public authorities meeting with a time frame that can be reduced up to a half and which allows the applicant to know in advance the conditions for the approval of the project. • Under Title I of the Decree, regulatory interventions can be identified to ensure a simplification and acceleration of procedures in the field of renewable energy sources in particular (Articles 30 to 32c) through the simplification of authorization procedures with reference to: A. renewable sources (wind, photovoltaic, geothermal, biogas); B. energy infrastructures; C. electricity production and storage facilities (in particular small-scale facilities). Looking at some relevant articles on the Green Economy and renewable energy, we see that:
  • Article 32 amends and integrates the rules of the single authorization for plants producing electricity from renewable sources in order to introduce certain simplifications for the works of repowering of such plants. – Article 37 provides for a series of simplifications that are aimed to speed up the procedures for the reclamation of contaminated sites and the reconversion of industrial sites to be used for the implementation of projects identified in the National Recovery and Resilience Plan, with a view to the circular economy. FOCUS ON ARTICLE 31 Article 31 amends and integrates the rules related to electricity storage and photovoltaic plants, in order to simplify and encourage the building of such plants. o The second paragraph of the article provides that the simplified municipal authorization procedure will be applied for the construction and operation of photovoltaic plants with a capacity of up to 20 MW (a threshold that was doubled when the Decree was converted into law) located in areas for industrial, productive or commercial use, as well as in closed and rehabilitated landfills or landfill lots or in quarries or quarry lots that cannot be exploited further. o The fifth paragraph modified the article 65 of the legislative decree n.1 of 2012, which prevents the possibility of accessing the state incentives set out in Legislative Decree No 28 of 3 March 2011 for photovoltaic solar systems with modules placed on the ground in agricultural areas, providing that such denial of access to state incentives does not apply to agro-voltaic plants that adopt integrative solutions with vertical assembly of modules in such a way as not to compromise the continuity of agricultural cultivation activities, to be carried out at the same time as assembly systems that make it possible to verify the impact on crops. o The sixth paragraph provides for an amendment to Annex II to Part Two of the legislative decree no. 152 of 2006, therefore, for photovoltaic plants with a power exceeding 10MW and for wind power plants with power exceeding 30 MW, EIA under the State jurisdiction is required, while for photovoltaic plants with a power between 1 and 10 MW (except for those located in productive, industrial or commercial areas) regional EIA is required. The changes in jurisdiction apply to applications submitted after July 31, 2021 and therefore cannot have any impact on ongoing proceedings.
    o The seventh bis paragraph states that for the construction and operation of photovoltaic plants as well as for the related works for the construction and operation of such plants within the areas of sites of national interest, in areas occupied by industrial plants for the production of energy from conventional sources or in areas classified as industrial, the thresholds referred to in letter b) of point 2 of annex IV to part two of the legislative decree of 3 April 2006, No 152, for verifying the eligibility for EIA referred to in article 19 of the same decree (1 MW) are raised to 10 MW. ***

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