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Renewable energy – The Council agrees on a temporary emergency regulation

December 06, 2022

In the beginning of November, the European Commission put forward a proposal regarding a framework to accelerate the deployment of renewable energy, with the ambition to speed up the transition to green energy and reduce the EU’s dependency on Russian fossil fuels. In line with the conclusions of the European Council at the end of October, the European Commission considers that the ongoing energy crisis requires immediate action to transpose parts of the REPowerEU plan, and therefore proposes to adopt a Council Regulation using Article 122(1) of the Treaty of the Functioning of the European Union (TFEU) as legal basis.

The Regulation is meant to complement previous emergency measures in order to accelerate the transition to green energy. The proposal has been subject to negotiations in the Council during which the EU’s energy ministers have reached an agreement, but the Regulation still awaits formal adoption. The Council has agreed on changes to the European Commission’s proposal regarding, inter alia, deadlines for permit procedures as well as exceptions for projects that affect the protection of cultural heritage and national defence interests.

Measures

The Regulation targets three areas: solar energy, renewable power plants and heat pumps. These energy sources are considered to have efficient heating properties as well as low operational- and installation costs which is considered to ultimately benefit consumers.

Accelerated permit procedures for solar energy equipment

The Commission proposes significantly accelerated permit-granting procedures that, in turn, is meant to lead to an accelerated deployment of solar energy equipment on artificial structures. According to the Council’s agreement, the deadline for the permit procedure for the installation of solar energy equipment shall, under certain circumstances, not exceed three months. Moreover, the concept of “positive administrative silence” is introduced within the permit procedure, which means that a permit is considered granted when the deadline has passed, if the permit-granting authority has failed to communicate its decision before that. The aim is to accelerate the deployment of small-scale installations. In order to further facilitate the permit procedures, solar energy projects on existing artificial constructions will, under certain conditions, be exempt from having to carry out certain environmental assessments.

Streamlined permit-granting procedure for repowering renewable energy plants

The permit procedure for projects regarding the repowering of renewable energy plants (i.e. upgrading existing plants) will be streamlined by limiting the deadline for the granting of permits to six months, including carrying out all relevant environmental assessments. These assessments will be limited to only assessing the potential impacts resulting from the changes of the original project. The Regulation also includes a simplification of the procedure for grid connections in cases where the repowering doesn’t exceed a 15% increase in total capacity compared to the original project.

Accelerated permit procedures for heat pumps

Regarding heat pumps, the Regulation accelerates the permit procedure by introducing a deadline of three months for ground source heat pumps, and one month for heat pumps with a capacity below 50MW. Additionally, the Council has agreed on a simplified procedure for grid connections with smaller heat pumps with a capacity below 50kW. The Regulation aims to accelerate the deployment of heat pumps that, inter alia, reduce the use of gas in the supply of heating. The Council has further included the possibility for Member States to exclude certain areas or structures for reasons related to the protection of cultural heritage, national defence interests or safety.

Renewable energy presumed to be of overriding public interest

The Regulation stipulates that the deployment and operation of renewable energy plants is to be presumed to be of overriding public interest, and thus benefit from a simplified assessment for specific derogations foreseen in EU environmental legislation - for example, the Member States’ possibility to grant exemptions from legislation aiming to preserve species, as stipulated in article 16(1) Directive 92/43 on the conservation of natural habitats and of wild flora and fauna. The Council has agreed to include a possibility for Member States to limit the application of these provisions to certain parts of their territory, types of technology or projects.

Reactions

The European Commission’s proposal has faced criticism from environmental organisations arguing that the proposal accelerates the deployment of renewable energy on the expense of necessary environmental safeguards, and that this will lead to legal uncertainty, inadequate permits and increased litigation at a local level. According to the critics, the accelerated permit procedures do not consider the actual administrative, technical and economic challenges that exist within the development of renewable energy. It is particularly argued that, by establishing that renewable energy projects are to be presumed to be of overriding public interest, the proposal undermines the carrying out of environmental assessments that are fundamental to protecting the environment, and additionally fails to reflect the spirit of solidarity on which article 122(1) TFEU is based. However, the European Commission claims that there are no environmental risks, as the proposal only concerns areas of energy that do not pose any environmental threats, such as solar energy on buildings that already exist or are under construction, as well as repowering already existing renewable power plants.

It is worth noting that, through the Council’s amendments, the provisions of the Regulation are in line with the Council’s general approach on the proposed amendments to the Renewable Energy Directive (2018/2001), which are currently being discussed in the ongoing trilogue negotiations between the Council, the European Parliament and the Commission. The objective of the Regulation is to already start accelerating of the permit procedures for renewable energy sources, on a temporary basis until the amended Renewable Energy Directive has come into force.

Next steps

As mentioned above, an agreement has been reached amongst the EU’s energy ministers. The formal adoption is expected during the Council’s upcoming extraordinary meeting on energy, which will be held on 13 December. The Regulation will enter into force the day following its publication in the Official Journal of the European Union. The Council has further decided that the Regulation will be in force for 18 months, instead of 12 as was proposed by the European Commission, with the possibility for the European Commission to extend the regulation’s validity. The validity will depend on the adoption of the amendments and subsequent entering into force of the amended Renewable Energy Directive (2018/2001).

 

Read the Council’s press release here.

Read the European Commission’s proposal here.

Read the Council’s agreement here.

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