News of the Environmental Decree

INTRODUCTION

On 18 October 2024, the Law Decree no. 153 of 17 October 2024 (the Environmental Decree) on “Urgent provisions for the environmental protection of the country, the streamlining of environmental assessment and authorisation procedures, the promotion of the circular economy, and the implementation of measures regarding the reclamation of contaminated sites” was published in the Official Gazette no. 244.

The Environmental Decree must be converted into law within 60 days from its publication (ie by 17 December 2024), otherwise it loses effectiveness with effect ex tunc.

The Environmental Decree contains several amendments to the Legislative Decree No. 152 of 3 March 2006 (the Environmental Code) and also applies to authorisation procedures for electricity production plants using renewable sources subject to the Environmental Impact Assessment (EIA) or environmental screening (screening).

Let’s analyse the news.

 

NEWS FOR PROJECTS SUBJECT TO EIA OR SCREENING

Priority order of projects subject to national EIA (amendments to Article 8 of the Environmental Code)

The following projects are considered priorities. They’ll be treated with priority by the Technical Commission PNRR-PNIEC with the limit of no more than three-fifths declared a priority. And they’ll be treated with priority by the PNRR-PNIEC Technical Committee within the limits of the share not exceeding three-fifths of the processing:

• projects concerning green or renewable hydrogen plants referred to in number 6-bis) of Annex II to Part Two of the Environmental Code and the connected renewable plants;

• interventions of modification, even substantial, for the renovation, upgrading or complete reconstruction of plants powered by wind or solar sources;

• onshore photovoltaic and onshore agrivoltaic plants with a nominal capacity of at least 50 MW and onshore wind plants with a nominal capacity of at least 70 MW;

• projects identified by the Ministerial Decree of the Ministry of Environment and Energy Security (MASE) in agreement with the Minister of Culture (MIC) and the Ministry of Infrastructure and Transport (MIT) (no deadline has been indicated for issuing this Ministerial Decree) with the following characteristics (i) reliability and technical and economic sustainability of the project in relation to its realisation; (ii) contribution to achieving the decarbonisation objectives envisaged by the PNIEC; (iii) relevance to the implementation of the investments of the National Recovery and Resilience Plan (PNRR); (iv) enhancement of existing works, facilities or infrastructure.

The chronological order, for each type, is determined by when the communication is sent to the applicant about the documentation being published on its website.

To uniformly and consistently apply the priority order in which the projects will be examined in the context of the EIA, the MASE will notify the MIC of the order of priority.

The changes will occur without prejudice to the compliance with the deadlines of the environmental procedures provided for by the legislation in force for the projects included in the PNRR or those financed from the Supplementary Fund.

For motivated circumstantial needs of a functional or organisational nature, the President of the Technical Commission VIA-VAS and the President of the Technical Commission PNRR-PNIEC may, by agreement, assign to the Technical Commission VIA-VAS projects that fall under the competence of the Technical Commission PNRR-PNIEC.

Priority is also given to:

• foreign investment programmes on Italian territory with a value higher than EUR1 billion, declared of significant national strategic interest among major programmes through a resolution of the Council of Ministries;

• investment programmes for the national production system with a value higher than EUR25 million and with a significant impact on employment.

The amendment to Article 8 of the Environment Code can be summarised as follows:

• An order of priority examination is given to specific projects. These projects have a quota reserved, within the limit of three-fifths, for the examination of the Technical Commission PNRR-PNIEC. In any case, no change in the chronological order of priority occurred since all the projects are subject to the chronological order of the date when the communication is sent to the applicant about the documentation being published on its website.

• In case of a delay in the issuance of the EIA decree, the President of the Technical Commission VIA-VAS and the President of the Technical Commission PNRR-PNIEC can assign the project to the Technical Commission VIA-VAS. So this Commission may evaluate projects for the construction of plants fuelled by renewable sources which actually fall under the competence of the Technical Commission PNRR-PNIEC.

Screening: Rejection of the application in case of no response by the applicant to the requests for clarifications or documentary supplements (amendments to Article 19, paragraph 6 of the Environmental Code)

A phase is introduced in the screening procedure regarding requests for clarifications or documental integrations.

After 30 days from the communication to the interested administrations of the documentation’s publication on the website, the competent authority may ask for clarifications or documental integrations. The competent authority can only ask once and within 15 days, only if finalized to the non-subjection of the project to the EIA procedure.

The applicant must reply to the request within 30 days. If the applicant doesn’t submit the requested clarifications or integrations within this term, the screening application is considered rejected.

This is a “guillotine” rule since it provides for the automatic rejection of the application if the applicant doesn’t respond to requests for clarifications or documental additions within 30 days of receiving the request.

These requests must be related to clarifications or documental integrations sent by the authority to the applicant within 15 days and only once from the communication of the publication of the documents on the website. But the rule doesn’t take “late requests” into consideration, excluding in this case the rejection of the application, but only in the case of failure to respond to the request within 30 days, regardless of the delay of the request. A clarification on this point is expected when the Environmental Decree is converted into law.

Paragraph 6-bis has been added, which provides that the competent authority has to issue the screening decree within 60 days from the expiration of the 30-day term from the communication to the authorities of the documentation’s publication on the website. Or, for requests for clarifications or documental integrations, within 45 days from the receipt of the requested clarifications or integrations.

In exceptional cases, related to the nature, complexity, location or size of the project, the competent authority can extend, only once and for a period not exceeding 20 days, the term for adopting the screening decree. The competent authority has to promptly inform the applicant, in writing, of the reasons justifying the extension of the term and of the date by which the screening decree will be issued.

This communication must also be published on the competent authority’s website.

This provision has formalised any delays in issuing the screening decree, providing the possibility for the authorities to justify an extension of the deadline not exceeding 20 days.

 Duration not less than five years of the screening decree (amendments to Article 19, paragraph 10 of the Environmental Code)

The screening decree has a temporal effectiveness, in any case for at least five years, defined in the screening decree. It takes into account the expected time for realising the project, the necessary authorisation procedures, and the eventual proposal formulated by the applicant and included in the documentation accompanying the screening application.

This means that the screening decree must include the expiration date. But it’s not clear when this deadline starts running. It is expected that this point will be clarified in the conversion process of the Environmental Decree providing that the term of effectiveness of the screening decree will start running from when the single authorization is issued.

Extension of the screening decree duration (amendments to Article 19, paragraph 10 of the Environmental Code)

Once the temporal effectiveness of the screening decree has expired without the project having been realized, the relevant procedure is renewed. This is without prejudice to the granting of a specific extension by the competent authority upon request of the applicant. The request should be accompanied by an updated explanatory report that contains evidence regarding the environmental context of reference and any changes, including design changes, that have occurred.

Except in case of a change in the environmental context of reference or of amendments, including design changes, the measure that provides the screening decree extension doesn’t contain different and additional prescriptions with respect to those already provided for in the screening decree.

If the request is submitted at least 90 days before the expiration of the period of effectiveness defined in the screening decree, the decree continues to be effective until the competent authority adopts the extension.

Within 15 days from the submission of the application, the competent authority has to verify the completeness of the documentation. If the documentation is incomplete, the competent authority will ask the applicant to submit supplementary documentation, assigning a peremptory term of no more than 20 days. If the applicant doesn’t submit the supplementary documentation within the deadline, or if, after the competent authority completes a new verification within ten days from the submission of the requested supplementary documentation, the documentation is still incomplete, the application will be considered withdrawn and the competent authority will archive it.

Suspension of the EIA proceeding to amend or supplement project documents (amendments to Article 24 of the Environmental Code)

If, at the outcome of the consultation or if the applicant submits counter-deductions (controdeduzioni), it becomes necessary to modify or supplement the project designs or the documentation, the request for the suspension of the procedure up to a maximum of 12 days is accepted. That is if, seven days after the request for suspension, the Technical Commission VIA-VAS or the Technical Commission PNRR-PNIEC remains silent.

This is provision allows the modification and/or integration of the project documents, possibly implementing the indications received by the Authorities during the proceeding. A silence-consent mechanism is envisaged in relation to the acceptance of the suspension request under consideration, since it’s considered accepted if the administration remains silent.

Conditioned screening: Request when submitting the preliminary environmental study (amendment to Article 19, paragraph 7 of the Environmental Code)

When submitting the preliminary environmental study, the applicant can request that, at the end of the screening procedure, the project will not be subjected to the EIA procedure if specific prescriptions are imposed to avoid or prevent significant and negative impacts.

This provision seems to show that the decision not to subject the project to the EIA may include environmental conditions the applicant has to fulfil, if the applicant has requested them when submitting the preliminary environmental study.

Verification of adequacy of the landscape report by the MIC (amendment to Article 24 of the Environmental Code)

Paragraph 4-bis was added to Article 24 with the provision of an additional procedural step for the MIC to verify the adequacy of the landscape report.

Within ten days from the expiration of the deadline for consultations or counter-deductions (controdeduzioni), the MIC can, on a one-time basis, assign the applicant a term, not exceeding 30 days, to submit supplementary documentation in electronic format. At the applicant’s request, justified on the basis of the particular complexity of the project, the MIC can extend, for a single time and for a period not exceeding a further 30 days, the deadline assigned for the integrations.

After receiving the supplementary documentation, the MIC must promptly forward the documentation to the competent authority. If, within the deadline, the applicant fails to submit the additional documentation or, following a further review, to be carried out by the MIC within 15 days of the submission of the additional documentation, the documentation is still incomplete, the application will be considered rejected and the MIC will notify the applicant and the competent authority. The competent authority will then have to archive the application. In cases where the documentation is still incomplete, the communication will state the reasons why the documentation doesn’t permit the landscape assessment.

This is another provision of “cutting down” the dossiers, which entails the automatic rejection of the application in the event of failure to reply to the MIC’s request for supplementary documents. This is a dangerous rule as there’s no specific indication as to which integrations the MIC can request, also to avoid the hypothetical litigation that could arise on this provision.

Completeness of the landscape report (amendment to Article 25 of the Environmental Code)

Article 25, paragraph 2-quinquies of the Environmental Code has been amended to provide that the agreement of the competent general director of the MIC includes the landscape authorisation pursuant to Article 146 of the Legislative Decree no. 42/2004 only where the landscape report allows a positive assessment of the landscape compatibility of the project.

The purpose of this provision is to affect the recent jurisprudential orientations of the State Council (ex multis, State Council, nos. 7299/2024 and 4098/2022) according to which the landscape authorisation can be considered included in the EIA measure issued by Resolution of the Council of Ministers pursuant to Article 5, paragraph 2, letter c-bis) of Law no. 400/1988. This objective is pursued by requiring that the landscape report is sufficiently complete to allow a positive judgement on the landscape compatibility of the project.

EIA issued by means of Resolution of the Council of Ministers (amendment to Article 25 of the Environmental Code)

The MIC has to adequately motivate any rejection of the agreement for issuing the EIA and, in case of dissent of the MIC with respect to the positive opinion of the Technical Commission VIA-VAS or Technical Commission PNRR-PNIEC, Article 5, paragraph 2, lett. c-bis) of Law no. 400/1988 applies. In cases in which, by means of Resolution of the Council of Ministers pursuant to Article 5, paragraph 2, lett. c-bis) of Law no. 400/1988 the dissent of the MIC is overcome, the Resolution itself replaces to all effects the EIA decree, which includes the landscape authorisation pursuant to Article 146 of Legislative Decree no. 42/2004, if the landscape report is complete and allows a positive judgement of landscape compatibility. In these cases, the Resolution of the Council of Ministers replaces the EIA decree to all effects and has a duration of at least five years.

Declaration of availability of the lands in the EIA application

For projects realising energy production plants using renewable sources, the applicant also has to attach to the EIA application a declaration attesting the legitimate availability, on the basis of any title, of the area and, if necessary, of the resources necessary for realising the project.

First of all, the phrase “the legitimate availability of the surface in any capacity” lends itself to different interpretations. The rule could be understood as also referring to the request for public utility and approval of the parcel plan attached to the application for the issuance of the single authorisation. In fact, the law does not expressly require that the proponent have stipulated private law contracts with the owners of the land and therefore does not exclude that the expropriation is no longer prosecutable. In this case, the EIA request must therefore be presented immediately after the Single Authorization request and then the latter must be integrated with the evidence of the presentation of the EIA request, the EIA request being a condition for the admissibility of the Single Authorization application.

Even in the unfortunate case that the provision requires proof of having entered into private law agreements, the rule – referring to the EIA application – wouldn’t be applicable if the EIA application has already been declared proceedable (because it’s complete with all the attachments). And this relates to the principle of tempus regit actum. According to this principle, “the regulatory provisions that have been introduced during the entire procedure are intended to regulate only the legal situations emerging during the phases that have not yet been concluded at the time of their entry into force (in this sense, see State Council, Section IV, decision no. 6185 of 13 October 2003; State Council, Section VI, decision no. 2136 of 15 April 2010; see also State Council, Section VI, decision no. 2136 of 26 April 2010, State Council, Section IV, decision no. 6185 13 October 2003; State Council, Section VI, decision no. 2136 of 15 April 2010; State Council, Section VI, decision no. 694 of 26 May 1999; State Council, Section IV, decision no. 2894 of 12 May 2004; State Council, Section VI, decision no. 5252 of 20 July 2004; State Council, Section IV, decision no. 799 of 7 May 1999).”

So, if the procedural phase of the EIA application has already been concluded, these provisions can’t be applied, and the EIA application isn’t subject to the obligation to include the declaration.

Transitional regime

The Environmental Decree doesn’t provide for a transitional regime. So the new provisions will apply not only in relation to procedures started following the Environmental Decree entering into force, but also to procedures currently in progress. This is unless the specific procedural stages that relate to the amendments of the Environmental Decree have already been concluded (eg issuing the opinion of the MIC or procedability of the EIA application).