RePowerEU emergency regulation. Holiday gift for RES – the regulation passed
The written procedure, concluded on December 22, led to a nearly unanimous adoption of the Council Regulation laying down a framework to accelerate the deployment of renewable energy.
Overview of the regulation
The Regulation establishes temporary rules of an emergency nature to accelerate the permit-granting process applicable to the production of energy from renewable energy sources. A particular focus is put on specific renewable energy technologies or types of projects which are capable of achieving a short-term acceleration.
The Regulation will enter into force on the day following its publication in the Official Journal of the European Union and it will apply for a period of at least 18 months, entirely and directly in all Member States. The Council applied Article 122 of the TfEU reserved for energy crises, thereby eliminating the legislative participation of the Parliament and the need for state implementation.
The scope of the regulation
The regulation applies to all proceedings whose date of initiation falls within its period of validity, as well as to ongoing proceedings, as long as it shortens procedures while respecting the rights of third parties. Member states were also given the discretion to narrow the applicability of the laws to parts of their territory, as well as to certain types of technologies or projects with certain characteristics, in accordance with the priorities set out in their integrated national plans.
Remarkably, the regulation leaves states ample room to further interfere with the maximum time limits for permit procedures. Member states are allowed to introduce even shorter permitting deadlines than those specified in the regulation.
RES as overriding public interest
Most importantly, the Regulation introduces the possibility to treat renewable energy projects as investments of overriding public interest, therefore allowing such projects to benefit from the simplified permitting procedures designed for projects of key strategic importance. Pursuant to the Regulation, green energy constructions can be recognized as serving public health and safety. Thus, the weighing of private and public interests can be eased in favor of investors – especially when it comes to areas of special protection specified in the Habitats Directive (Directive 92/43/EEC) and the Birds Directive (Directive 2009/147/EC). The construction and operation of plants and installations for the production of energy from renewable sources, as well as the related grid infrastructure development will be given priority when balancing legal interests in the individual case.
These principles will potentially be applicable to all types of RES projects. The regulation additionally contains some specific provisions.
For solar energy equipment, including solar installations and rooftop solar energy equipment, in existing or future artificial structures, the permit-granting process should not exceed 3 months, provided that the primary aim of such structures is not solar energy production. Such projects will also be exempt from the obligation to carry out a dedicated environmental impact assessment.
The process has also been improved by introducing “positive administrative silence” for selected projects. For the application for the installation of solar energy equipment with a capacity of 50 kW or less, the absence of a reply by the relevant authorities within 1 month following the application will result in the permit being considered as granted.
The repowering of solar installations that does not entail the use of additional space and complies with the applicable environmental norms will be exempted from the requirement of assessing the environmental impact.
The permit-granting process for the installation of heat pumps below 50 MW electrical capacity shall not exceed 1 month; while in the case of ground source heat pumps it shall not exceed 3 months. In less complex cases, including heat pumps of up to 12 kW capacity and heat pumps installed by self-consumers of up to 50 kW capacity, connections to the transmission or distribution grid will be permitted following only a notification.
Repowering of RES plants
The repowering of projects, including obtaining permits related to their connection to the grid, where the repowering results in an increase in capacity, will not exceed 6 months, also involving environmental impact assessments. Where the repowering does not surpass 15% and can be made without affecting the need to assess any potential environmental impacts, grid connections to the transmission or distribution grid should be permitted within 3 months.
Altogether, the adoption of a regulation so beneficial to RES in such a short timeframe should be considered a very significant step towards the development of renewable energy and energy self-sufficiency. The regulation certainly misses some provisions specific to RES sectors such as wind power or offshore, but perhaps a greater volume of the act would negatively impact its fast adoptability, which lends rationality to such a solution. Either way, we should hope that the discussed regulation is only a preview of further changes in the administrative system for RES plants.