A new decree has left operators of solar PV plants and agrivoltaics confused about where they can launch works

Some notes on the political and social background

In Italy there are more than 4.2 million hectares of abandoned or unused agricultural land, with more than 120,000 hectares of agricultural land abandoned every year . While such unused land could be rezoned for solar PV or agrivoltaics use—contributing to the production targets for renewable energy set out by the National Recovery and Resilience Plan (NRRP)—the authorizing authorities as well as the current political dialogue often contribute to spreading the misconception that solar PV impedes using land for cultivation and farming purposes.

Another misconception spreading among the population—and sometimes quoted by the media—is that expropriating agricultural lands is necessary to realize solar PV plants. In fact, Italian law does not allow for expropriation for solar PV and agrivoltaics. While it is possible to expropriate land for grid works, in most cases such works involve underground cables, which does not impede agricultural activities. The truth is that landowners and farmers are free to sell or lease their land to those building photovoltaic systems or to create a synergistic agreement to maintain agricultural activity while also allowing for the production of renewable energy.

Despite the relentless work to dispel these myths by energy industry associations like Elettricità Futura and Italia Solare, along with data indicating that 60,000 hectares (equivalent to 0.2 percent of Italy’s total area) are needed for Italy to reach the NRRP’s goal for renewable energy capacity (excluding rooftop-mounted solar) , the lawmakers and government figures tend to either support agricultural interests or renewable energy interests—too often depicting them as being in opposition.

Italy’s lawmakers navigate between the interests of agriculture and renewable energy

This view, that the interests of agriculture and renewable energy are in opposition, is a problem that is ultimately being reflected in laws and regulations that have been adopted in Italy recently.
Italian legislation is historically characterized by repeating patters of urgency, complexity and compromise.

Urgency is visible in the frequent use of urgent decrees issued by the government that remain in force for 60 days while being converted into law by the Parliament, possibly with amendments, or they become null and void from the outset. Some of the direct consequences accompanying the use of urgent decrees include the presence of intrusive provisions on topics that may have nothing to do with the subject matter of the decree, as well as a layering of multiple tangled provisions, some of them being applicable only for a specific period, and sometimes contradicting each other.

Despite the intentions to simplify administrative procedures and the government’s tendency to explicitly declare the goals to be achieved under the relevant decrees, the outcome is often an intricate set of laws and regulations in an awkward and complex language, leaving provisions open to different interpretations. Moreover, a preferred legislative technique is to amend pre-existing laws and regulations without considering that, in some subject matters like energy, there is concurrent legislative power on the part of the state and the regions, further complicating things.

Compromise is something innate in Italy’s legislation. With respect to renewable energy plants on agricultural lands, an example of compromise is well represented by Italian Legislative Decree 387/2003 which, on the one hand, provides that renewable energy plants can be located on agricultural land and, on the other hand, specifies that the projects should consider the provisions of law applicable to the agricultural sector, with particular reference to the enhancement of local agricultural and food traditions, the protection of biodiversity, as well as the safeguarding of cultural heritage and rural territories. While the upside of this “democratic” approach is that all interests are carefully taken into consideration and balanced on a case-by-case basis, the downside may be the flourishing of ambiguities and uncertainties.

Decree 63/2024 further muddles understanding of “ground-mounted solar PVs”

In force since 16 May 2024, Decree 63/2024, which according to rumor has totally banned solar PVs on agricultural land, is characterized by all the above-mentioned features of urgency, complexity and compromise.

According to its description, Decree 63/2024 allegedly sets forth “urgent provisions for agricultural, fishing and aquaculture businesses, as well as for businesses of national strategic interest”. However, its text also includes an intrusive provision that affects solar PV plants. This provision has been oddly located, in Chapter I of the new decree, “interventions to protect companies in the agri-food and health and fishing sectors and for market transparency”. We are referring to Article 5, which has been explicitly entitled “provision aimed at limiting the use of agricultural land”.

Article 5 of the new Decree 63/2024 amends Article 20 of Legislative Decree 199/2021. Before commenting on the amendment, it seems useful to recall that Article 20 was introduced to define the general principles and criteria for identifying areas suitable and not suitable for the installation of renewable energy plants, pending the enactment of a final decree officially identifying such areas. That decree remains to be issued by the Ministry for the Environment, in concert with the ministries of Culture and Agriculture, upon agreement with the State-Regions Conference (Conferenza Stato-Regioni). Among Article 20’s (unamended) general principles and criteria: (i) in the transitional period, pending identification of areas suitable for renewable energy production plants, the relevant authorization procedures cannot be suspended (paragraph 6 of Article 20); and (ii) areas not included in the list of suitable areas (which has still not been published) cannot be declared unsuitable for the installation of renewable energy production plants, in connection with territorial planning or in the context of individual procedures, solely due to the lack of inclusion in the list of suitable areas (paragraph 7 of Article 20).

Article 5 of Decree 63/2024 enters in this context seemingly disruptively, overturning the methodology for identifying suitable areas. It stipulates that the installation of ground-mounted solar PV plants referred to under Article 6-bis letter b) of Legislative Decree 28/2011 is prohibited on agricultural areas, except for in a subset of suitable agricultural areas. Needless to say, this change was a rude awakening for operators of solar PV plants, who have been confidently waiting for the publication of the new RES-X decree, implementing the RED II European directive, aimed at incentivizing the production of energy from mature renewable energy sources like solar PV from 2024 until 2028.

What kinds of plants (or modifications) are in the scope of (or excluded from) the new ban?

To understand the real impact of Article 5 of Decree 63/2024 on the PV sector, it is crucial to understand which kinds of plants are the object of the new ban. This is no easy task—Article 6-bis letter b) of Legislative Decree 28/2011, which is used as a reference to identify the plants affected by the new ban, does not actually define what a ground-mounted solar PV plant is.

Rather, Article 6-bis states that certain limited works of ground-mounted solar PV plants (either existing or already authorized but still to be built) can be licensed by means of a simplified “deemed consent” licensing procedure (sworn declaration of the commencement of works, dichiarazione di inizio lavori asseverata, DILA). Such limited works include modifications which, even if consisting of a modification of the technological solution through the replacement of modules and other components and through a modification of the layout of the system, involve a variation of the maximum height from the ground not exceeding 50 percent than the authorized project. Confusion thus arises in connection with Article 5 of the new decree, as it is not clear whether all ground-mounted solar PV plants fall under the new ban, or only the limited modifications of revamping and repowering referred to under Article 6-bis letter b) of Legislative Decree 28/2011.

Considering the inaccurate and ambiguous reference to Article 6-bis letter b) of Legislative Decree 28/2011, it seems prudent to dive deeper into the scope of application of the new ban in order to tackle this topic from the other side. With this new perspective, the right query seems to be, which plants (and modifications) are excluded by the new ban?

Plants explicitly exempted by article 5 of Decree 63/2024

The new Decree 63/2024 clearly states that it does not apply to the following types of plants: (i) ground-mounted solar PV plants intended for establishing a renewable energy community whose primary objective is to provide community-wide environmental, economic and social benefits to its members or to the local areas where the community operates; (ii) projects implementing other investment measures of the NRRP, approved by the ECOFIN Council’s decision of 13 July 2021, as amended by the ECOFIN Council’s decision of 8 December 2023; (iii) projects implementing the National Plan of supplementary investments to NRRP in accordance with Article 1 of Legislative Decree No. 59 of 6 May 2021, converted with amendments into Law No. 101 of 1 July 2021; and (iv) projects necessary to achieve the objectives of the NRRP.

Agrivoltaics

Considering that the new ban literally refers to “ground-mounted solar PV plants” and that agrivoltaics number among the investments promoted by the NRRP, we may reasonably conclude that the ban exempts agrivoltaics. This conclusion is also supported by the declared purpose of Article 5 of the new decree, which is to ensure that agricultural areas be used for cultivation and farming purposes, and by the lack of an explicit reference to Article 6, paragraph 9 bis of Legislative Decree 28/2011 (which had introduced the category of agrivoltaics, by referring to Article 65, paragraph 1 quater of Decree 1/2012). Still, there is a grey area when it comes to identifying the requirements that a plant must meet to be qualified as agrivoltaic. To date, the only references in this respect are set out in the Guidelines for Agrivoltaics adopted by the Ministry of Ecological Transition on 22 June 2022 and Ministerial Decree 436/2023 on PNRR incentives for experimental agrivoltaics plants. It cannot be excluded that in the coming weeks the Italian Ministry for Environment will be asked for clarifications on the scope of application of this ban and, in particular, on the requirements that agrivoltaics must meet in order to be exempted from the new limitations.

Revamping and repowering

Furthermore, the new ban does not apply to works involving changes, revamping, repowering or total reconstruction of existing solar PV plants on agricultural lands, on the condition that such works do not trigger any enlargement of the area already occupied.

Suitable areas exempted under the new ban

Finally, there is a subset of suitable areas exempted under the new ban. The installation of ground-mounted solar PV plants is still permitted in the following so-called “solar belts”:

(i) Exhausted or abandoned quarries and mines or those in conditions of environmental degradation, or portions of quarries and mines that cannot be further exploited

(ii) Sites and plants available to the companies of Ferrovie dello Stato Italiane group and railway infrastructure managers as well as motorway concessionaires

(iii) Sites and facilities available to airport management companies within the airport grounds, including those in the perimeter of the airports of smaller islands, without prejudice to the necessary technical checks by the National Civil Aviation Authority (ENAC)

(iv) Areas inside industrial plants and establishments (stabilimenti), or areas classified as agricultural that are enclosed in a perimeter whose points are no more than 500 meters from an existing industrial plant (including an existing renewable plant as clarified by the Ministry for Environment, replying to a query received by a municipality) or the areas adjacent to the motorway network within a distance of no more than 300 meters, in all cases on condition that they are not affected by cultural constraints set out under Legislative Decree No. 42/2004

What about already authorized PV projects or those undergoing authorization?

Article 5 paragraph 2 of the new decree specifies that licensing, authorization or environmental assessment procedures already started by the date of entry into force of the new decree (i.e. on or before 16 May 2024) are to be concluded under pre-existing laws and regulations.

Therefore, the changes do not apply to:

• Already authorized projects (whether traditional ground-mounted or agrivoltaics) even if they are still to be built
• Plants whose screening or environmental assessment procedure began on or before 16 May 2024
• Plants whose single authorization procedure (Autorizzazione Unica – AU or Provvedimento Autorizzatorio Unico Regionale – PAUR) or relevant simplified licensing deemed-consent procedure (Procedura Abilitativa Semplificata – PAS or DILA) began on or before 16 May 2024

Operators expect that during the conversion of the new decree into law, it will be clarified that projects whose screening or environmental assessment procedure began on or before 16 May 2024, but for which the AU or PAS procedure had not yet been started, will still be assessed under pre-existing laws and regulations.

Similarly, operators share the hope that it will be clarified that licensing procedures are meant to refer to grid connection procedures as well. This would mean even if the project developer not yet begun the environmental or authorization or licensing procedure but has applied to the competent grid operator for a connection by 16 May 2024, the project would be excluded from the scope of application of the new decree.

What is the real impact of the new decree?

Revamping and repowering works on existing plants in agricultural areas are no longer allowed if they trigger an enlargement of the occupied areas. In this respect, we note that Legislative Decree 199/2021, sets out that producers who revamp or repower their plants without enlarging the originally occupied areas but increase the plant’s total capacity should be eligible to public subsidies with priority over other kind of modifications.

The following agricultural areas are no longer considered suitable for ground-mounted solar plants as referred to under Article 6-bis letter b) of Legislative Decree 28/2011:

• Areas that have been subject to environmental remediation
• Areas within 500 meters of areas zoned for industrial, artisanal, and commercial purposes
• Areas not falling within landscape constraints or within the buffer zone of cultural constraints set out under Legislative Decree No. 42/2004

During the process of conversion of the new decree into law, it will be essential to monitor whether: (i) these areas (formerly classified as suitable) will be confirmed as unsuitable; and (ii) if they are confirmed as unsuitable areas, whether the ban refers to any ground-mounted solar PV plants or if the reference to Article 6-bis letter b) of Legislative Decree 28/2011 was meant to limit the possibility to enlarge already existing solar PV plants only.

Legal considerations and doubts of lawfulness

Some of the concepts found in Decree 63/2024 are imprecise (e.g., the reference to Article 6-bis letter b) of Legislative Decree 28/2011 to identify the ground-mounted solar PV plants affected by the ban), and there are a number of gaps (e.g., in relation to the requirements that agrivoltaics projects should be exempted from the ban) that will likely be addressed during the process of conversion into law by the Parliament. In its current version, the new decree does not apply to agrivoltaics, irrespective of whether they are simple or advanced.

A total ban on solar PV plants in all agricultural areas would be contrary to Article 12 of Legislative Decree 387/2003 implementing EU Directive 2001/77/CE, which assumes compatibility of renewable energy production plants with agricultural areas, and which declares the public utility of such plants for environmental purposes. Furthermore, case law precedents of the Council of State have maintained that the environmental interests for ecological transition and decarbonization are urgent and not deferable and that solar PV plants contribute to transforming the economical system into a more sustainable and environmentally friendly model and safeguard, albeit indirectly, landscape values. Based on this case law, doubts can be cast on the legitimacy of a total ban on solar PV plants in all agricultural areas, for potential violation of Articles 9 and 41 of the Italian Constitution. These two articles safeguard the environment also in the interest of future generations and state that economical enterprise cannot be exercised in contrast with, among others, the environment. During the conversion process, the Parliament will have to consider the principles set out under the Italian Constitution as well as the European legal framework which provides “for projects which are recognised as being of overriding public interest, that in the planning and permit-granting process, the construction and operation of plants and installations for the production of energy from renewable sources and the related grid infrastructure development are given priority when balancing legal interests in the individual case” (article 3 of Council Regulation EU 2022/2577 as amended by Council Regulation EU2024/223).

Given the above, it is likely that during the conversion process the Parliament will be keen to avoid enacting a complete ban on solar PV plants in agricultural areas. Instead, it will try to better identify suitable and unsuitable areas. In this process, it would be highly advisable for lawmakers to shift their mindset from identifying the areas where solar PV plants cannot be installed to identifying the areas where solar PV plants must be installed, with a view to achieve Italy’s solar deployment targets. Otherwise, the new decree, if confirmed by the Parliament upon conversion into law, will only aggravate the already complicated regulatory framework for suitable and unsuitable areas for renewable energy production plants. And this all within a context where Italy has been waiting since 2021 for the issuance of the promised decree identifying suitable areas for the deployment of renewable energy plants.