SIMPLIFYING AUTHORIZATION PROCEDURES.
The Sole Authorization
Article 12 (3) of the Decree provides that " the construction and operating, renovation, development, total o partial reconstruction and reactivation of plants producing electricity from renewable sources, as defined under the applicable legislation, and the associated worked and infrastructures that are needed for their construction and operating, require a Sole Authorisation issued by the Regional Government or another duly authorized body".
Continuing, article 12 defines the Sole Authorization as title "to construct and operate the plant in confirmity with the approved plan", provided that the plan shall also forth the obligation to restore the site at the operator's sole expense when the plant is decommissioned.
As part of the general intent to streamline the authorization process, especially noteworthy is the Legislator's choice of providing that the authorization issued by the competent authority can directly amend th zoning plan, where appropriate, without having to file an ad hoc application to change the Municipal zoning plan.
Under the Sole Authorization procedure, the Regional Government(or Provinces delegated by the region) must call for a conference of services within 30 days from the filing of the authorization application. All interested parties and bodies are invited to participate to the conference of services in order to express their opinion on the issuance of the Sole Authorization, and ultimately, on the realization of the project.
The Sole Authorization procedure must be completed within one-hundred and eighty days. Notwithstanding the intent of expediting the authorization procedure, it is quite frequent that the deadline is note met. the delay is usually due to the circumstances that a large number of authorization applications are submitted to Regional Governments and cannot be processed within the timeframe established by law.
According to article 12(10) of the Decree, the Ministry for Productive Activities, in conjunction with the Ministry for the Environment and Protection of Natural Resources and the Ministry for Cultural Goods and Activities, shall establish the guidelines for the conducting of the conference of services. However, absent any intervention at the national level, some Regional Governments, under the auspices of article 117(3) of the constitution, have been acting on this matter autonomously. While this approach has generated, on the one hand, diverse legislation, on the other it has filled a gap in a matter autonomously. While this approach has generated, on the one hand, diverse legislation, on the other it has filled a gap in a matter that called for immediate regulation.
This is what happened in the Puglia Region where the Regional Council adopted Regional Law 38 of October 21, 2008 ("Regional Law 38/2008") that disciplines the procedure for issuing Sole Authorizations pursuant to article 12 of the Decree. This measure was welcomed especially by investors that find particularly suitable sites for the installation of renewable energy plants in this Region and wre urging for a solution to the "commerce of authorizations". Prior to the enactment of Regional Law 38/2008, anybody could file an application for the authorization of energy plants regardless of the applicant's financial capacity for the mere purpose of speculating on the authorization once it was issued. Precisely, the authorized project would be repeatedly sold at a price significantly higher than the project's original value. regional Law 31/2008 put an end to this practice: article 4 of the Law expressely provides that the calling of the conference of services is conditioned upon the prior representation of a bank stating that the applicant possesses the necessary financial means to implement project.
The Notice of Activity Commencement - A streamlined procedure
A simplified authorization procedureis envisaged under article 12 (5) of the Decree for plants having a power production capacity lower that th thresholds established in Schedule A to the Decree which differ per each renewable energy source (i.e.; wind energy: 60 kW; PV energy: 20kW). In particular, plants that fall within the above thresholds must resort to the Notice of Activity Commencement (denuncia Inizio Attività, hereinafter referred to as "DIA") provided for under articles 22 and 23 of Presidential Decree 380 of June 6, 2001 (also known as the Consolidated Text on Construction - Testo Unico in Materia Edilizia, hereinafter referred to as the "Consolidated Text").
According to article 23 (1) of the Consolidated Text, the applicant must file a DIA within 30 days from the beginning of works attesting that the work will be done in compliance with existing zoning laws and plans, and with safety, health and environmental protection regulations along with documents of the plants. Absent asn express rejection from the competent Municipal authorities, the DIA will take effect within 30 days from its filing, and it will be valid for a maximum period of 3 years within which the applicant is authorized to carry out the works envisaged therein. Instead, should any of the conditions required for the obtainment of the authorization be missing, the Municipal authority may deny the issuance of same. In this case the Municipality authorities must notify the applicant that the application was rejected and specify on what ground. In any event, the applicant may file a new DIA application complete of the missing information.
Upon completion of the works; a qualified technician will issue a final testing report, to be filed with the competent offices, attesting that the works were done in compliance with the project originally filed with the DIA application.
The Environmental Assessment Procedure
The Environmental Assessment Procedure (Valutazione d'Impatto Ambientale, hereinafter "VIA") is a distinct and parallel process with the DIA or the Sole Authorization. It is required for specific projects as set forth under Legislative Decree no.152, of April 3 2006, also know as the Consolidated Text on Environment (Testo Uncio Ambientale - "TUA").
According to the TUA, the purpose of the VIA is to protect human health and improve the quality of life while bettering the environment, defending animal species and promoting the reproduction of the eco-system. depending on the project, the task of conducting the environmental assessment will fall either upon the State or the Regional Government: by way of example, the State will be responsible for the environmental assessment of thermal plants exceeding 300 MW, while the Regional Governments have enacted laws with the specific VIA procedure to follow whenever the project falls within the sphere of the Region's area of competence.
The Green Energy: the need for highly specialized skills
The knowledge of the above mentioned authorization procedures is necessary, although not enough, to invest on the field of Renewable Energy Sources. Because of a large number of issues mainly related to the territory and due to the many legislative gaps, potential investors are highly recommended to avail themselves of th support by experts who are familiar with the "unwritten laws of the land" and have well-established contacts with local operators in order to successfully pursue their investments.
It is essential to rely on the assistance of qulified proffessionals as well as on the services of business-oriented consultants and technical experts with deep knowledge of the territory. To this extent, part of the success of a deal often depends on the good relationship that a potential investor is able to establish with the local population that may be hostile to the installation of power plants for a variety of reasons, such as the impact on the environment, the feared devastation of the landscape, or simply worry about the effects on human health.
Finally, it goes without saying that, it is of paramount importance for potential investors to utilize versatile contractual instruments that may be adapted to differnet scenarios, inclusive of way-out clauses in order to secure a legitimate exit from no longer profitable deals or projects.
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