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The new Valencian Decree-Law for the promotion of renewable energies: highs and lows

| News | Energy

In Valencia Plaza Carlos Mínguez analyses plaza the measures contained in the Decree Law approved by the Generalitat to accelerate the implementation of facilities for the use of renewable energy

The pandemic has plunged our economy into a severe recession. The macroeconomic data is overwhelming and the perception, at street level, confirms the feeling that we are facing a crisis of unknown scope whose effects are unfortunately going to extend over time. This situation calls for the rapid adoption of measures to promote a vigorous economic recovery. There is a broad consensus that these initiatives must promote sustainable development. The recovery cannot meet the ambitious energy and climate challenges of the future. 

Under the Green Deal (European Green Pact), the European Union has committed itself to reducing greenhouse gas (GHG) emissions by 50-55% by 2030. By 2050, the Union must be carbon neutral. The Integrated National Energy and Climate Plan (PNIEC) 2021-2030 submitted to the European Commission by Spain envisages that by 2030 our country will have 74% of its installed capacity generated from renewable sources and will consume at least 42% of its total consumption from renewable sources. For its part, the Region of Valencia will have to go from the current 364 MW of photovoltaic and 1,255 MW of wind power to 6,000 MW and 4,000 MW, respectively, in order to meet the objectives of the Valencian Climate Change and Energy Strategy 2030.

In this context, last August the Generalitat approved a Decree-Law to accelerate the implementation of installations for the use of renewable energies (Decree-Law 14/2020). The initiative could not be timelier. The Valencian Community joins other autonomous communities in approving a regulation whose main objective is to improve the regulatory framework to speed up the administrative processing of these projects. 

The Decree Law contains interesting measures: it gives preference to the administrative processing of photovoltaic and wind projects; it introduces transparency rules in such a difficult area as the arrangement for access and connection to the grid; or it encourages self-consumption through regulatory improvements that will undoubtedly simplify the processing of these projects.

These are marginal improvements that will provide a benefit in terms of costs and legal certainty; however, the Decree Law suffers from a certain continuity in the treatment that, from a town planning and regulatory point of view, is given to this matter, its regulatory governance and the land use planning that it entails.

Some legal operators wonder whether the use of legal tools for territorial management outlined in an economic context different from the current one, with pressures on the territory that are also different and with respect to uses that did not exist thirty years ago, constitutes the best regulatory option with which to undertake land use planning for renewable energy installations.

Should the production of energy from renewable sources be considered as an own and consubstantial use of undeveloped land? The answer to this question, which may seem merely theoretical, hides one of the regulatory keys, the resolution of which will contribute to the best and quickest implementation of sustainable projects that will make possible the energy and, therefore, economic transformation that is to come.

The Decree Law opts, unlike other Autonomous Communities that have recently legislated on the matter, to maintain the consideration of the implantation of these installations on undeveloped land as an activity unrelated to the nature of this type of land, which therefore requires a special administrative authorisation, previously known as a declaration of community interest (DCI) and now renamed as an authorisation for implantation on undeveloped land.

This has consequences such as the need to secure the dismantling of installations which are to be used for no more than 30 years. It is no longer only a decision that is probably uneconomic given that modern installations may have a useful life longer than this, but also whether it makes sense to temporarily restrict the use of undeveloped and unprotected land for the establishment, on a permanent basis, of renewable energy installations.

Self-consumption aside, we are dealing with projects that require large areas of open land. The economic and physical logic imposes its implantation in undeveloped land. A regulation in accordance with this fact should establish, generally, the compatibility of common undeveloped land with its use for the implementation of renewable facilities. This is without prejudice to the subsequent verification of the suitability of the specific space on which the installations are planned to be located during the instruction of the procedure in which the environmental evaluation would be included, if it were mandatory. Something whose purpose is to be ordinary and permanent cannot be described as exceptional and temporary. 

Also in the conception of the procedure, the Decree Law abounds in consolidated techniques, such as that of an integrated procedure - energy, environmental and urban planning - which is, however, faced with the distorted reflection of the theoretical image that returns the mirror of the administrative reality, local but not alone. Without the means, or the training, to face the task of informing these projects, local autonomy is once again what the French traveller Teofilo Gautier preached about the Constitution in Spain around the middle of the 19th century, when he saw the sign "Plaza de la Constitución" in the first village he visited after crossing the border: "a handful of plaster on granite". Impenetrable.

The criteria for the location of installations invite reflection on the position of renewable energy use in relation to other uses that are undoubtedly inherent to undeveloped land, such as agriculture. Above all, in view of the ambitious objectives set for the penetration of renewable energies, the interest of these projects in terms of economic policy and their fundamental role in the fight against climate change.

Although the Decree-Law also includes some rules that raise questions of constitutionality, such as the technical design criteria for photovoltaic and wind power installations, for example, the overall assessment that the Decree-Law deserves is positive. This is a first approach to a complex and cross-cutting issue. There is still a long way to go in terms of regulations, such as the application and potential development of Royal Decree Law 23/2020, the forthcoming approval of the Royal Decree and Circular on access and connection, etc., which means that the Generalitat Valenciana will have to continue its work to improve regional energy regulations during the remaining months of 2020 and 2021. 

The ecological transition is one of the five axes of the Valencian Recovery Strategy recently presented by the President of the Generalitat Valenciana. The correct and efficient channelling of public resources is essential, currently, for the renewable sector to be able to spearhead economic recovery. There is a high expectation of private investment in the sector in the coming years. The Valencian Community can attract the most innovative and ambitious energy projects. To fulfil this expectation, projects must be processed on time and with rigour. This is the major challenge for the sector.  If the world changes, our procedures and competences will also have to adapt to the change, on pain of becoming a hindrance to progress and an insufferable and unjustifiable lament for the citizens.

The article can be read in Valencia Plaza.

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