RePowerEU emergency regulation – Are simplifications for RES permits around the corner?
Emergency regulation draft
In May 2022, the European Commission introduced the RePowerEU plan, addressing the energy market issues caused by Russia’s invasion on Ukraine and purposely taking a step closer to the energy transformation.
Nevertheless, despite the nearing more power-consuming months, the raging war, and the crisis; the full enactment of the RePowerEU plan will still require quite some time which we no longer seem to have. Considering the length of the standard implementation procedure, a need has emerged to address the escalating difficulties immediately – at least for the interim, until the planned changes in the directive are finalized and implemented.
Prompted by the calls made by the European Council, last week the European Commission presented a draft of emergency regulations designed to provide exceptional measures. The uniqueness of this solution comes from the application of Article 122 of the TfEU reserved for energy crises, thereby eliminating the need for state implementation and making the regulation immediately binding in its entirety and directly applicable in all Member States. According to the draft, the temporary regulations will remain in effect for a period of one year after their entry into force, with the possibility of a prolongation preceded by a relevant review.
Overriding public interest
The proposed emergency regulations introduce amendments that can be categorized as general and sectoral. Most importantly, the possibility to treat renewable energy projects as investments of overriding public interest is to be introduced, 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 would be recognized as serving public health and safety; thus, the weighing of private and public interests would 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 overriding public interest is also the prerequisite for granting exceptions (derogations) to the standards indicated in directives such as the Water Framework Directive (Directive 2000/60/EC), and therefore Member States will be allowed to temporarily lower the permit requirements, making it easier for investors to undertake construction projects and accelerating the establishment of green power plants.
It should be clarified that the simplifications would include all relevant administrative permits issued to build, repower and operate plants for the production of energy from renewable sources including heat pumps, co-located energy storage facilities, and assets necessary for their connection to the grid, including grid connection permits and environmental assessments where these are required.
Sectoral and administrative changes
Sectoral facilitations primarily apply to photovoltaic energy, heat pumps and repowering renewable power plants and in this regard involve the introduction of maximum time limits for conducting the permitting procedure. Accordingly, the permit-granting process:
- for the installation of solar energy equipment – shall not exceed one month, provided that the primary aim of such structures is not solar energy production;
- for repowering of projects, when it results in an increase in capacity – shall not exceed six months (including environmental assessments);
- for repowering of projects, when it does not result in an increase in capacity beyond 15% – shall not exceed one month;
- for the installation of heat-pumps – shall not exceed three months.
The proposal also introduces the instrument of “positive administrative silence” for solar installations with a capacity of 50 kW or less, whereby applications for permits not addressed by an authority within one month will be presumed granted. This solution is bound to have a positive impact on the deployment of small-scale photovoltaic power generation and relieve the administrative burden.
Nevertheless, attention should be drawn to a proposed provision that the contents of all decisions issued under the simplified regime will be accessible to the general public by the force of law. The investor will have no other choice than to accept their public availability.
As a final remark it is worth emphasizing that regardless of the presence of certain solutions specifically designed for particular kinds of projects, this regulation will provide significant facilitation for all types of renewable energy in general. Let’s hope that these temporary measures, which will help streamline the permitting procedure in the nearest future, are merely a prelude to the investment process transformation. The most significant – and this time, permanent – changes are still to come, bringing us closer to the improvement of permitting procedures for renewable energy installations.