New rules for installing solar panels on fields: who can and cannot proceed

The new draft of the Agri-Food Decree, published in the Official Gazette, loosens the constraints that had been inserted in the first draft of the decree with the aim of limiting the installation of ground-mounted photovoltaic systems on agricultural land. In essence, the new version of the decree reopens the way for the installation of this type of system, and does so to the extent that the RepowerEu targets for renewable energy generation by 2030 can be met.

The changes introduced are substantial: the regulation no longer refers to suitable areas, but states that for ground-mounted plants in areas used for agricultural purposes, revamping, upgrading or reconstruction work is permitted, provided that it does not lead to an increase in the area occupied. This means that revamping of plants is permitted, whereas in the first version it was not possible. To give an idea of the significance that revamping operations can have, it is enough to think that a plant with an installed capacity of 16 megawatts can be increased to 24 megawatts just by replacing old panels with more modern models.

The most significant aspect is the part that states that plants for which authorisation procedures have been initiated can be built under the rules that existed before the decree law came into force. The principle is intended to guarantee legitimate expectations, i.e. the fact that entrepreneurs have planned investments and deployed economic resources to initiate projects that are then blocked by changes in the rules at a later date. The Italian legal system protects legitimate expectations: compensation for any damage would not be limited to the money spent on authorisations, but also to the loss of profit due to the fact that time and resources were spent that could have been more profitably employed elsewhere. This principle is also protected by European law and can also be invoked before the European Court of Justice, which is not an unreasonable assumption considering the large number of foreign investors involved in ground-mounted photovoltaic projects.

Unlike the previous version, the new regulation refers to the 'enabling, authorisation or environmental assessment procedures already underway at the date of entry into force of this decree', which 'are concluded in accordance with the regulations in force'. The authorisation process for ground-mounted photovoltaic plants, in particular for those with an output of more than one megawatt, envisages a simplified authorisation procedure for smaller plants and a single authorisation for larger ones, which must also obtain the Via, environmental impact assessment. Referring in the regulation to the authorisation process initiated is no small thing: to date, these procedures have been initiated involving the construction of over 80 gigawatt plants. A significant quantity, if one considers the RepoweEu targets envisage Italy installing 84 gigawatts by 2030. Whether the new text is also the result of the interlocution on the decree that took place between the Ministry for Agriculture, the Ministry for the Environment and the Quirinale, which in recent days had raised some points of attention on the measure, is not known. It is worth noting that, according to rumours, the Mase had assured the Hill that the new measures would not hinder the targets on renewables deriving from the commitments undertaken by transposing European directives.

The new balance of the regulatory text, however, does not by itself ensure that the installation of photovoltaic systems for which the authorisation process has been initiated is on a downhill course. The ambiguity created with the prohibition introduced through the Agriculture decree for installations in agricultural areas instead of a clear definition of suitable areas in accordance with the 2021 law, which expressly envisages the involvement of the regions and their commitment to identifying areas in which to achieve regional renewable targets, leaves room for local authorities to use discretionary criteria or to continue to approve half-year moratoria on authorisations, as decided in recent days by the region of Sardinia.