Renewables, Sardinia's eligible areas are 1% by law: what happens now

Caution and attention also comes from the business world. "Now opens a season in which the region will declare almost all the projects not proceeding due to contrast with the new rule and, therefore, the companies will appeal to the Tar of Sardinia asking in the first instance to disapply the rule, for contrast with the EU discipline, and in the second instance to raise the issue of constitutional legitimacy of the law by sending everything to the Constitutional Court," commented the approval Carlo Comandè, of the Cdra law firm. The lawyer has followed several appeals, including those of Erg and Iberdrola, which led last 14 November to the Council of State's suspension of a passage of the decree on suitable areas (dm of 21 June 2024) that gave the regions the possibility (and not the obligation) to consider as suitable the areas already identified by dl 199/2o21. The appeal judges therefore ruled in an order that the regions must instead ensure compliance with the suitable areas already identified by national law until the case is decided on the merits, with a hearing scheduled for 5 February 2025 before the Lazio Regional Administrative Court.

Now this measure goes against the ordinance, according to those who voted for it by virtue of Sardinia's special statute. "The reference to the statute does not resolve the issue of the absolute constitutional illegitimacy of the rule that has just been approved. The Sardinian law, in fact, contrasts with the EU directive 2018/2001, with the national law that transposed it, i.e. law 53/2021, and with decree law 199/2021, all superordinate regulations that define the areas of competence of the State and the goals to be pursued at the European level in the delicate process of energy transition. It is precisely because of this clear regulatory framework that the Council of State has imposed on the regions, including those with a special statute, the obligation to comply with supranational obligations, all of which has been deliberately obliterated by the region of Sardinia, which, rather than a region with a special statute in this matter, has taken on the guise of a small autonomous state that has, quite arbitrarily, called itself outside the European context in which Italy is placed. It is therefore clear that there are very important profiles of unconstitutionality that afflict the rule in question, profiles denounced, moreover, also by the oppositions in the parliamentary debate,' Comandè read.

"Going into the merits of the individual provisions, there are further profiles of constitutional legitimacy for violation of constitutional norms related, for example, to the good performance of the administration and the right to private property. Suffice it to say that this rule has established that projects that have already been authorised cannot be materially built where they fall in unsuitable areas - 99% of Sardinia - and for which appeals will obviously flow, exposing the region to significant claims for compensation,' Comandè concluded.