The Council of State, Italy’s highest administrative court, has temporarily suspended the application of Article 7, paragraph 2, letter c) of the Suitable Areas Decree.
This provision allowed regions to modify the designation of suitable areas for renewable energy projects previously defined by Legislative Decree 199/2021. According to the judges, the evaluated regulation does not appear to fully align with national legislation, which already establishes suitable areas.
Vincenzo Sacco, a lawyer, analyzes the measure and highlights that, pending the hearing scheduled for February 5, regions will not be able to enforce stricter regulations. As a result, eligible areas will continue to be governed by Article 20, paragraph 8, of Legislative Decree 199/2021.
“In this short period, authorization rejections cannot be issued on the grounds that the plant would be built in an area deemed unsuitable under regional provisions adopted through subsequent laws that do not fully comply with the Legislative Decree, which already contains a list of areas considered suitable. However, local authorities could still deny authorization, possibly awaiting the administrative court’s ruling,” Sacco explains in a conversation with Energía Estratégica España.
When asked about the potential impact and slowdown this could cause in the development of renewable energy projects, Vincenzo Sacco states that he does not foresee significant practical effects, given the temporary nature of the measure. However, he suggests it could indicate a future ruling declaring Article 7 invalid.
In contrast, Enrico Esposito, an administrative lawyer, asserts that «there will undoubtedly be a slowdown in the submission of new projects for authorization,» as companies—and regional administrations—will likely wait for regulatory clarity. Nevertheless, he emphasizes that ongoing projects will proceed without issue.
“As a result of the Council of State’s order, Italian regions cannot pass laws that conflict with the national list of eligible areas. However, they can legislate on aspects not addressed by the order”, Esposito explains in an interview.
He adds: “I personally doubt regions will take any action before the final hearing. There is a risk that newly approved laws, even if they comply with the Council of State’s order, could still be overturned if administrative judges identify additional grounds for invalidating the suitable areas decree in their final decision”.
The Decree and the Hearing
The suspended regulation granted regions the authority to restrict project development in areas previously identified as suitable by the Ministry of the Environment.
These «suitable» areas are zones where renewable energy plants (RES) are prioritized, benefiting from streamlined bureaucratic processes such as halved authorization times and non-binding landscape assessments. Examples include disused quarries, abandoned landfills, solar belts along highways, and airport zones.
The suspension follows an appeal by Erg Wind Energy S.r.l., a renewable energy company, arguing that the decree limited its wind repowering projects. The Council of State ruled that the provision could cause legal uncertainty, was inconsistent with national law, and might hinder national energy transition goals and the targets set under the National Recovery and Resilience Plan (PNRR).
It is important to note that the ruling does not invalidate the entire interministerial decree but only suspends a specific provision. The rest of the decree remains in effect, and regions are still required to implement the national renewable energy law.
The public hearing is scheduled for February 5, 2025, when the Regional Administrative Court (TAR) will issue a definitive ruling on the case of Erg Wind Energy S.r.l. against the interministerial decree regulating suitable areas for renewable energy projects. Until then, the suspension of the provision allowing regions to restrict development in nationally designated suitable areas remains in force.
The final hearing before the Lazio Regional Administrative Court raises significant uncertainty. Experts agree that the February ruling will be pivotal for Italy’s renewable energy sector.
According to Esposito, “It’s impossible to make predictions, but the Council of State’s order leaves little doubt that the suitable areas identified by MASE must be considered mandatory and binding for territorial planning laws.”
He also expects the court to rule on whether regions can identify “unsuitable areas,” where renewable plants are prohibited. “Economic operators are challenging this power, arguing that regions cannot introduce new bans not already established at the central level,” he explains.
“If, on February 5, the Regional Administrative Court accepts this argument, the entire regional legislation system for suitable areas would be undermined, and the entire territorial planning process carried out so far would have to be completely redone,” Esposito concludes.
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