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Production of energy from renewable sources and overriding public interest

Abstract

The article analyses the legal framework governing renewable energy production in Italy and the EU, focusing on the “overriding public interest” principle established by EU Regulation No. 2577/2022 and Directive 2023/2413 (RED III). It examines the reorganization of administrative authorization regimes under Legislative Decree No. 190/2024 and the balancing of competing interests – energy transition, environmental protection, landscape, and cultural heritage – against the constitutional framework of Articles 2, 3, and 9 of the Italian Constitution. Assessed against persistent regulatory fragmentation and the Draghi Report’s recommendations, the article concludes that judicial interpretation and legal scholarship will prove decisive in defining this still evolving regulatory context, yet which reveals a clear normative orientation favourable to the production of energy from renewable sources, one that will have precise repercussions at the interpretive level.

Parole chiave
  • Renewable energy sources
  • Overriding public interest
  • Administrative authorization regimes
  • RED III Directive
  • Energy transition
  • Landscape protection
  • Constitutional balancing
  • Italian administrative law
  • European energy law

1. Overview of the European regulatory framework on renewable energy production

The framework of European legislation on the development of renewable energy production, within the broad regulatory context of one of the world’s most prolific environmental legislators1, should now be considered complete following the entry into force of Directive (EU) 2023/2413, known as RED (Renewable Energy Directive) III.

Unfortunately, transposition by Member States is still ongoing2. Italy has recently initiated this process through Law No. 91 of 13 June 2025, Article 1, first paragraph, Annex A), No. 43. It should be noted in this regard that, despite the significant body of delegated powers conferred in environmental matters, no specific principles and directive criteria are articulated in the law concerning the transposition of the directive. Consequently, the general principles set forth in Articles 31 and 32 of Law No. 234 of 24 December 2012 will apply4.​​​​​​​​​​​​​​​​

Finally, to strengthen the regulatory framework on renewable energy sources, the European Commission first issued Recommendations No. 1343 and 1344 of 13 May 20245, then, with the package of 2 July 2025, adopted the Recommendation on renewable energy technologies, network and storage infrastructure, and future-proof grid charges, along with three communications6.

In particular, the Recommendation, which constitutes the cornerstone of this regulatory framework, is situated within the European Commission’s “Action Plan for Affordable Energy”7 which aims to achieve “the Energy Union to ensure clean, efficient and affordable energy for all Europeans”. The plan identifies three “key actions” to accomplish these objectives: accelerating the deployment of renewable energy8 and energy storage, accelerating the expansion and strengthening of electricity grids, and introducing efficient signals for optimal grid utilization and containment of grid costs, particularly through grid tariffs9.

As is well known, European energy regulation finds its foundation in environmental policy, whose legal basis is constituted by Article 191 TFEU10. The European Union promotes the spread of renewable energy production with the aim of drastically reducing greenhouse gas emissions, combating climate change, and consequently improving environmental quality. These measures contribute to the implementation of the Kyoto Protocol, which the EU—as is well known—signed as part of the United Nations Framework Convention of 7 December 1997. Diversification of renewable energy sources (the so-called energy mix) would ensure Member States’ security of supply by reducing dependence on fossil fuels from abroad, which still constitute the majority of energy production11.

Despite the context of the planetary triple crisis of climate change, pollution, and biodiversity loss that would have demanded swift and comprehensive redefinition of the legal foundations of the energy system, the regulatory framework for energy, particularly in the renewable energy sources (RES) sector, remains fragmented and in continuous, not always linear evolution12.

This circumstance paradigmatically reconnects to what has been identified as the causes of the progressive decline in national, and more broadly European, competitiveness, appropriately stigmatized in the report on Union competitiveness presented to the EU Commission by Professor Draghi: regulatory fragmentation, over-regulation, and procedural complexity (“red tape”)13. The report “The future of European competitiveness” indeed, with regard to the renewable energy sector, identifies as a short-term priority the transposition of existing legislation on renewable energy authorizations, focusing on the digitalization of national authorization procedures in the EU and on support for the implementation of training for national renewable energy authorization authorities, extending the tacit consent principle and evaluating the introduction of integrated comprehensive procedures for entire industrial and infrastructural ecosystems.

In particular, it is worth recalling, for example, the regulatory context of administrative regimes for renewable energy production, which, after twenty years of regulatory stratification, is progressively assuming a new configuration that, it is hoped, may find completion and comprehensive reorganization with the aforementioned transposition of the RED III Directive. The current framework certainly cannot be considered adequate, being still too fragmented, and on which administrative jurisprudence has intervened with significant rulings14.

In implementation of Article 26, paragraphs 4 and 5, letters b) and d), of Law No. 118 of August 5, 2022 (Competition Law for 2021), the Government was indeed delegated to adopt one or more legislative decrees on renewable energy sources, with the specific objective of rationalizing, reorganizing, and simplifying the regulatory framework of the relevant regimes, adapting them to EU legislation. The Council of Ministers, on August 7, 2024, in implementation of the aforementioned Law No. 118 of 2022, preliminarily approved the draft legislative decree introducing the Consolidated Act on administrative regimes for renewable energy production.

In accordance with the provisions of the text, the administrative regimes for the construction and operation of RES, storage systems, connected works, and infrastructure essential for the implementation of installations are identified. The Consolidated Act, having completed the procedural process (opinion of the Unified Conference, opinion of the Council of State15, and of the competent parliamentary committees), was definitively approved by the Government and was subsequently enacted through Legislative Decree No. 190 of November 25, 2024, entering into force on December 30, 202416.​​​​​​​​​​

The objective is the simplification and acceleration of authorizations and the reduction of compliance costs, bureaucracy, and regulatory burdens, in line with subsequent EU regulatory interventions in the perspective of the aforementioned transposition of the third system directive: No. 2023/2413/EU (RED 3)17.

Legislative Decree No. 190 of 2024 aimed to outline a regulatory reorganization through the rationalization of administrative procedures for the construction and operation of renewable energy installations. Indeed, in order to overcome pre-existing regulatory fragmentation, the authorization framework provided for the reduction of multiple pre-existing administrative regimes to those of: Free activity, Simplified enabling procedure (PAS), and Single authorization (AU), establishing that only projects under Single authorization be subject to environmental assessments (national or regional).

In the outlined perspective, in the medium term, more incisive legislative action at the EU level is also hoped for to accelerate authorizations for related infrastructural and flexibility projects and the networks necessary to integrate additional RES capacity into the energy system, prioritizing renewable energy acceleration areas (RAA).

What emerges is a new scenario in which the needs for simplification, acceleration, and proportionality must find implementation in the new configuration of administrative regimes for renewable energy production, which must nevertheless take into account the peculiarities of the domestic legal system, the morphology of Italian territory and its landscape, ancient anthropization and cultural roots, and the asymmetry of technological and regulatory development of different types of eco-sustainable energy production.

The ecological transition and the protection of landscape and environment18 often manifest, in an increasingly tangible manner as the objectives of maximum diffusion of renewable energy sources established by European legislation (so-called burden sharing) are strengthened, elements of divergence if not divarication.​​​​​​​​​​​​​​

As observed by recent jurisprudence, the so-called “trilemma” (energy – environment – landscape-cultural heritage) must find a sort of “dynamic balance” appropriate to territorial contexts19 through a balanced and pluralistic evaluation of interests, in accordance with the principles of impartiality, effectiveness, and efficiency of administrative action, taking precedence over the general valorization of the cultural value of the entire sector without specific justification regarding the particular relationship of the installation within the context in which it is located20.​​​​​​​​​​​​

Indeed, absolute primacy cannot be recognized for the interest in protecting landscape values and, conversely, for the subordination of other potentially antagonistic public interests, including the environmental interest in energy production in eco-sustainable terms, as electricity production from renewable sources is an activity of public interest that also contributes, not only to the safeguarding of environmental interests, but, albeit indirectly, also to that of landscape values21. This conclusion must be considered strengthened in light of, in particular, the constitutional reform of Articles 9 and 41 of the Constitution, which offers further foundation to the conclusion according to which human intervention can contribute to the definition of landscape22.​​​​​​​​​​​​​​

A preliminary consideration, albeit deserving much more substantial examination given the impact that the introduction of a “tyrannical” principle determines in the domestic legal system, requires addressing the progressive preeminence assumed by the concept of “overriding public interest” of Union origin concerning the planning, construction, and operation of plants and structures for renewable energy production, whose actual scope will unfold with the completion of the reference legal framework and the interpretation that jurisprudence will be able to provide​​​​​​​​​​​​​​​​23.

This is a principle that finds its foundation in EU Regulation No. 2577 of December 22, 202224, which establishes “the framework for accelerating the deployment of renewable energy,” extended by Regulation 2024/223. These provisions outline the framework for accelerating the deployment of renewable energy and according to which:

“such projects may benefit from a simplified assessment for a series of environmental standards included in specific Union directives”.

Renewable energy installations thus respond to an “overriding public interest” within the framework of weighing various public interests relating to individual cases.​​​​​​​​​​​​​​​​

A useful reference for a more precise interpretation of the principle is found in the 8th recital of the regulation, which identifies among the temporary measures the introduction of a veritable

“rebuttable presumption according to which renewable energy projects are of overriding public interest and in the interest of public health and safety for the purposes of relevant Union environmental legislation”.

Such presumption, of very broad scope, finds a limit only where

“there is clear evidence that such projects have serious negative effects on the environment that cannot be mitigated or compensated”​25.

It follows that the introduction of a
“presumption of overriding public interest and interest for public health and safety for renewable energy production installations” constitutes the legal basis for the introduction of simplified procedures and specific derogations provided for by relevant Union environmental legislation, while Member States, even considering their national peculiarities, may limit the application of such presumption “to certain parts of their territory or to certain technologies or projects” and

“consider the possibility of applying such presumption in relevant national legislation on landscape”26.

The aforementioned principle of overriding public interest has thus introduced an external limit to the exercise of administrative discretionary weighing, albeit circumscribed, according to the provision of the same European legislation, to identified areas or to specific types of installations. It follows that, in the absence of specific regulatory provisions opposing the realization of renewable energy installations (unsuitable areas), the RES project assumes a preeminent interest in the context of balancing not only between public interests, but also between primary and constitutionally recognized interests such as those referred to in Article 9 of the Italian Constitution​​​​​​​​​​​​​​​27.

This reference framework is further clarified by the aforementioned provisions of the cited directive of October 18, 2023, No. 2413, according to which to ensure the streamlining of RES installation authorization procedures, Member States must approve projects within 12 months for those in “renewable energy reference areas” and within 24 months for those in external areas​​​​​​​​28.

As recently clarified by the Council of State,

“the presence of rooftop photovoltaic systems, in light of emerging energy needs, can no longer be perceived as a nuisance in its entirety”

and that

“attention must therefore be focused on how rooftop photovoltaic panels are integrated into the buildings that house them and the surrounding landscape”.

This is based on the premise that “the transition to energy production from renewable sources constitutes, in fact, an objective of national interest”and that the systems must be classified as “public utility works” which means that “the reasons for the denial must be particularly compelling” deeming it essential to

 “adequately balance the public interest in protecting the landscape with the public interest in increasing energy production from alternative sources, with a view to finding a balance between the different needs”29.

This recent ruling falls within an interpretative framework already outlined by the Supreme Administrative Court, according to which:

“the production of electricity from renewable sources is in fact an activity of public interest that contributes not only to the protection of environmental interests but, albeit indirectly, also to that of landscape values”30.

In fact, the comparative comparison between all the multiple public and private interests underlying the case must be carried out through a broad and detailed investigation and in compliance with the principles of impartiality, effectiveness and efficiency, since it is not possible to attribute

“a decisive value that hinders the landscape importance of the sites, without adequately comparing this value with the competing interests”31.

If, on a hermeneutic level, it is therefore necessary to orient oneself toward a balanced and reasonable balance of rights and principles, albeit within the context of a systematic framework, it is the Constitutional Court itself that offers interpretative elements in light of the constitutional framework. Weighting and balancing constitute an essential dynamic process on a hermeneutic level, always open to future adjustments based on the evolving situation, new evidence, and the cultural changes that characterize society as a whole.

This balancing must therefore be “reasonable and thoughtful”32, carried out with the prescribed balance in terms of reasonableness under Article 3 of the Constitution, which requires similar situations to be treated in a similar manner and different situations to be treated in an appropriately differentiated manner, and implemented under the guidance of the “mandatory duties of solidarity”, which Article 2 of the Constitution also establishes as a guiding criterion for the balancing of different rights33, especially in the case of so-called “sensitive” interests such as landscape and cultural heritage.

3.  The overriding public interest in the implementation of works for the construction and operation of renewable energy production plants.​​​​​​​​​​​​​​​​

Pursuant to Article 3 of the Consolidated Law (titled “Overriding public interest”), the interventions involving the construction and operation of renewable energy production plants, including storage systems and electrolysers, works for the modification, upgrading, total or partial reconstruction of such plants, as well as connected works and infrastructure essential to the construction and operation of the same plants​​​​​​​​​​​​ (referred to in Article 1, paragraph 1 of the Consolidated Law) “are considered to be of public utility, non-deferrable and urgent” (Article 2, paragraph 2), as well as,

“When weighing interests, in individual cases and unless proven otherwise (…) of overriding public interest pursuant to Article 16-septies of Directive 2018/2001/EU of the European Parliament and of the Council of 11 December 2018”

(Article 3, paragraph 1), and therefore also “of interest to public health and safety”, as specified by the EU law and in any case “until climate neutrality is achieved”.

This is the implementation of the principle of maximum diffusion of renewable sources as a consequence of the objective established by the European legislator of climate neutrality set for 2030, a deadline by which the share of energy production from renewable sources must reach a level equal to at least 42.5%, which can be increased to 45% by individual Member States, of the share of energy produced from renewable sources in gross final energy consumption.

It is therefore clear that achieving this challenging goal requires a significant acceleration of renewable energy plants as well as more intense integration of the renewable energy generated into the grid and the energy system34. A “Green New Deal”, which despite confirming the decarbonisation objectives, now seems to require greater graduality and simplification and speeding up of the implementation procedures in the context of an “Affordable Energy Action Plan”, combining “decarbonisation and competitiveness”35 in building the Energy Union36.

The internal implementing regulation, with a broad range of specific cases, continues by preserving the “negative assessment of environmental compatibility” and, in very broad terms,

“clear evidence that such projects have significant negative effects on the environment, on the protection of biodiversity, on the landscape, on cultural heritage and on the agricultural sector, with particular reference to the valorization of local agri-food traditions”.

 In accordance with this provision of the directive, within a specific deadline which has now expired in most European countries without its timely transposition (21 February 2024) and in any case “until climate neutrality is achieved”, Member States must establish procedures for issuing permits, planning, construction and operation of renewable energy production plants, connection of such plants to the grid, the grid itself and storage facilities that they consider

“to be of overriding public interest and in the interest of public health and safety in weighing the legal interests in individual cases and for the purposes of Article 6, paragraph 4, and Article 16, paragraph 1, letter c), of Directive 92/43/EEC, Article 4, paragraph 7, of Directive 2000/60/EC and Article 9, paragraph 1, letter a), of Directive 2009/147/EC”.

The legal morphology of this arrangement, resulting from the application of the principle of overriding public interest set out in the provision in question, can be limited only in the presence of “specific and duly justified circumstances” exclusively for certain parts of their territory, to certain types of technology, or to projects with specific technical characteristics,

“in accordance with the priorities established in their respective integrated national energy and climate plans submitted pursuant to Articles 3 and 14 of Regulation (EU) 2018/1999”.

These limitations, along with the relevant justifications, must be promptly communicated to the EU Commission.

As has been appropriately observed, we are witnessing a real reversal of the perspective at European level which determines very significant effects in the internal legal system making the issue take on a crucial importance, in line with the strong EU orientation towards a different concept of environmental sustainability aimed not only at the priority and more rapid construction of plants for the production of renewable energy, but also the administration having to evaluate the measures which can mitigate the potential impact rather than prevent its construction at the root37, in such a way as to attribute aspects of priority to production interests over protection interests, which up to now have been characterised by evident profiles of pre-eminence38.

As has been appropriately observed, we are witnessing a real reversal of perspective at the European level which determines very significant effects in the internal legal system, making the issue take on crucial importance, in line with the strong EU orientation towards a different concept of environmental sustainability aimed not only at the priority and more rapid construction of plants for the production of renewable energy, but also at the administration having to evaluate the measures which can mitigate the potential impact rather than prevent its construction at the root, in such a way as to attribute aspects of priority to production interests over protection interests, which up to now have been characterized by evident profiles of pre-eminence39.

By implementing the aforementioned provision of the directive in advance, compared to the rest of the EU legislation40, the aim was therefore to consolidate a sort of “attenuated devaluation” (limited to certain spatial-temporal conditions and types of RES plants) of the administrative protection of landscape, natural, archaeological and agricultural assets and the consequent compression of the “strength” of the different orientation expressed by the administrations responsible for these functions

“as the main interlocutors of the public interest in energy production from non-polluting sources”41.

 With regard to the relevant issue of the transposition of the Union legal system about to the principle of “overriding public interest”, it is worth recalling some critical considerations made by the Council of State in the consultative contribution made on the matter, also with reference to the provision for direct transposition of the RED III directive42, by means of the aforementioned provision of the Consolidated Law under examination.

With regard to the relevant issue of the transposition of the Union legal system with regard to the principle of “overriding public interest”, it is worth recalling some critical considerations made by the Council of State in the consultative contribution made on the matter, also with reference to the provision for direct transposition of the RED III directive, by means of the aforementioned provision of the Consolidated Law under examination.

The full incorporation into domestic law of the legal concept of “overriding public interest”, already in force under European regulatory provisions, but now also enshrined in the aforementioned domestic provision, is not a principle unknown to Italian law, which encompasses far more widespread cases of public interest prevailing over private interests, while respecting the general principles of domestic and EU law (e.g., expropriation, urban planning, and construction, to name a few).

However, it is precisely in the environmental sector where the overriding public interest permeates the entire legal framework, influencing authorization procedures, planning, controls, and sanctions according to a rationale of prioritizing the protection of the ecosystem and human health, with a concrete view to decarbonization.

In the Italian legal system, in fact, there are many instances of cases in which the legislator has expressly intended to outline a hierarchy between public interests, considering the pre-eminence of some of them over others, as in the case of the regulation of the conference of services in the administrative procedure, of the works included in the PNRR, in the water sector (prevalent public interest for drinking use over hydroelectric, industrial use etc.), but also for transparency43 or for the prevention of money laundering.

In the case of renewable energy plants, since they are regulated by the aforementioned legislation, a real presumption of “prevalence of interest in the implementation of the projects” arises44 with significant consequences in terms of procedural balancing which determine, for the administrations that protect divergent, if not conflicting, primary interests, an increased burden of motivation which consists in the need to highlight the specific negative repercussions that arise from the construction of the plant.

What is new in environmental law is that a matter, itself constituting a prevailing public interest, is now being broken down into the interests to be weighed, identifying, under the conditions described in the aforementioned provision, an overriding public interest in the authorization, planning, construction, and operation of renewable energy production plants, their connection to the grid, the grid itself, and storage facilities.

The exercise of administrative discretion, when confronted with overriding public interests, takes on the character of priority protection that the legislator intended to impart to the implementation of the relevant regulatory framework.

Although it is to be hoped that, upon (and in the finalization of) the relevant European directive, the principle’s impact on domestic law can be better articulated, defining, as necessary, the regulatory framework entrusted to government decrees45.

But it is quite evident that it will be the jurisprudential and doctrinal interpretation that will have to offer the necessary contributions in order to better delineate the boundaries of a space whose features are, in truth, still very uncertain and mobile46.  In the wake of a leading figure in contemporary Italian law, who stated:

“It will be up to science, above all, to offer those conceptual categories, those that are not yet ordering principles capable of bringing order to the unsettled magma of social and economic facts; and since there is no arrogant and invasive political power, science can construct a universal legal framework valid everywhere and projected into the long term”47.

  1. See J. Ziller, Le principe de protection de l’environnement, une perspective de droit comparé: Union européenne, Unité Bibliothèque de droit comparé (EPRS), Bruxelles, 2025, and J. van Zeben, A. Rowell, Guide to EU Environmental Law, Berkeley, 2020 and recently J. van Zeben, Environmental Law, in Oxford Public International Law, 2022, https://opil.ouplaw.com/display/10.1093/law-oeeul/law-oeeul-e112, that observes it regulates an incredibly complex environmental reality, spanning 27 Member States which are home to a wide variety of habitats and species. The technocratic nature of the EU legislative process is often seen as an advantage for the regulation of environmental impacts that have long time horizons, and the EU has done much to improve public participation on environmental decision making. Nonetheless, implementation gaps continue to undermine the ambition of EU environmental directives and regulations. The 2019 Green Deal shows a renewed ambition to successfully combine the EU’s economic and environmental ambitions so as to ensure a sustainable and competitive European economy and society. Towards the wider world, the EU leverages its economic position to export and impose its standards on third countries. Its emphasis on multilateralism means that the EU’s internal environmental goals are similarly influenced by international negotiations and developments. ↩︎
  2. The deadline for transposing RED III was set for July 1, 2024. On September 26, 2024, the EU Commission sent Italy, along with 26 other EU countries, a reasoned opinion as part of the infringement procedure for failure to transpose the RED III Directive, granting two months to respond and complete the transposition. Following the response provided, the Commission initiated the second phase of the infringement procedure last February, sending Italy and seven other EU countries a reasoned opinion for failure to notify the transposition measures.​​​​​​​​​​​​​​​​ ↩︎
  3. Government delegation for the transposition of European directives and the implementation of other acts of the European Union – European Delegation Law 2024. (25G00097). ↩︎
  4. The draft legislative decree prepared by the Government, after obtaining the other advisory contributions required by law, is sent to Parliament for the expression of opinions by the competent committees.​​​​​​​​​​​​​​​​ ↩︎
  5. These are Recommendations “on accelerating permit-granting procedures for renewable energy projects and related infrastructure projects” and “on the design of renewable energy auctions”, that underline “For the purposes of deployment of renewable energy projects outside renewable acceleration areas, Member States should establish clear and simple procedures to screen renewable energy projects in view of assessing whether they are likely to have a significant negative impacts on Natura 2000 sites on their own or in combination with other plans or projects. Whenever significant impacts cannot be excluded by the competent authorities, an appropriate assessment should be carried out under Article 6(3) of the Habitats Directive”. ↩︎
  6. Communication on future-proof grid charges for reducing energy system costs C (2025) 4010 final; Communication on innovative technologies and forms of renewable energy deployment C (2025) 4011 final; Communication on creating areas for grid and storage infrastructure, C (2025) 4012 final.​​​​​​​​​​​​​​​​ ↩︎
  7. COM (2025) 79 final of 26 February 2025​​​​​​​​​​​​​​​​. ↩︎
  8. It is worth noting that the first directive to address this matter was Directive 2009/28/EC, within the diverse context of a package of regulatory provisions developed in anticipation of the Copenhagen Conference on Climate Change (COP15), which was expected to lead, according to the EU, to the conclusion of an international climate agreement to succeed the Kyoto Protocol. The first version of the RED Directive envisaged the establishment of a regulatory coordination system at the Union level to create conditions aimed at encouraging Member States to adopt domestic legislation designed to promote the production and use of energy from renewable sources. The increase in the share of energy from renewable sources would thus contribute to achieving the EU’s overall objectives of reducing greenhouse gas emissions into the atmosphere as a whole, within a perspective of intergenerational and intragenerational equity. S. Kingston, V. Heyvaert, A. Cavoski, European Environmental Law, Cambridge, 2017, 278; for Italian scholarship, R. Bifulco, A. D’Aloia, Un diritto per il futuro. Teorie e modelli dello sviluppo sostenibile e della responsabilità intergenerazionale, Jovene, Napoli, 2008, and F. Fracchia, Lo sviluppo sostenibile. La voce flebile dell’altro tra protezione dell’ambiente e tutela della specie umana, Napoli, 2010.​​​​​​​​​​​​​​​​ ↩︎
  9. According to European legislation, renewable energy sources include energy produced from non-fossil renewable sources, namely wind energy, solar energy (solar thermal and photovoltaic), and geothermal energy, osmotic energy, ambient energy, tidal energy, wave energy and other forms of marine energy, hydroelectric energy, energy from biomass, landfill gas, sewage treatment process gas, and biogas.​​​​​​​​​​​​​​​​ ↩︎
  10. On which, in the extensive scientific literature, in ​​​​​​​​​​​​particular for the Italian legal system S. Quadri, L’evoluzione della politica energetica comunitaria con particolare riferimento al settore delle energia rinnovabile, in Riv. it. dir. pubbl., n. 3-4, 2011, 839; M. Marletta, Il quadro giuridico europeo sulle energie rinnovabili, in Il diritto dell’Unione europea, n. 3, 2014, 465; F. Fracchia, Sviluppo sostenibile ed energie rinnovabili, in F. Cortese, F. Guella, G. Postal (ed.), La regolamentazione della produzione di energie rinnovabili nella prospettiva dello sviluppo sostenibile, Cedam, Padova, 2013, 5.; L. Schiano Di Pepe, Le relazioni esterne dell’Unione europea in materia ambientale ed energetica, in M. E. Bartoloni, S. Poli (ed.), L’azione esterna dell’Unione europea, Editoriale Scientifica, Napoli, 2022, 207. ↩︎
  11. M. Cocconi, Planning and regulating the renewable electric energy, in Riv. quadr. dir. amb., n. 1, 2013, 69. ↩︎
  12. See for all P. Chirulli, Energie rinnovabili e tutela degli interessi sensibili, tra Repower EU e Direttiva RED III, in F. Cusano (Ed.), Scritti in onore di Paolo Urbani, Giuffrè, Milano, 2025, p. 311. While a ministerial commission is now close to finalizing the draft of the new environmental code, Legislative Decree n. 153 of October 17, 2024, converted with amendments by Law No. 191 of December 13, 2024, containing “Urgent provisions for the country’s environmental protection, the rationalization of environmental assessment and authorization procedures, the promotion of the circular economy, and the implementation of interventions regarding the remediation of contaminated sites and hydrogeological instability”. ↩︎
  13. Report submitted to the European Commission by M. Draghi, The future of European competitiveness. Part A – A competitiveness strategy for Europe, Bruxelles, 2024, 32, https://commission.europa.eu. ↩︎
  14. TAR Lazio, Rome, III, 13 May 2025, n. 9155, which annulled Article 7, paragraphs 2 and 3, of the Ministerial Decree of 21 June 2024 with the obligation, for the resisting ministerial administrations, to re-edit the criteria for identifying areas suitable and unsuitable for the installation of renewable energy systems, as well as to implement the provisions of Article 5, paragraph 1, letter a), no. 1), of Law 22 April 2021, n. 53. ↩︎
  15. The considerations expressed in the Opinion of the Council of State, Advisory Section for Regulatory Acts, September 12, 2024, n. 1216, regarding the draft decree on authorization regimes should indeed be endorsed, particularly in the section lamenting the lacuna concerning the procedure established by the enabling provision due to the absence of agreement within the Unified State-Regions Conference. In fact, according to Article 26, paragraph 7 of Law n. 118 of August 5, 2022, delegating authority to the Government for the adoption “of one or more legislative decrees on renewable energy sources,” such agreement should have been obtained prior “even to the opinion of the Council of State.” As highlighted by the supreme administrative advisory body, the absence of agreement reached within the State-Regions Conference produces repercussions on the “constitutional framework of State and regional competences and the objective of intervening also on territorial disparities in the timeframes for obtaining the necessary permits for plant construction”.​​​​​ ↩︎
  16. It should be noted that under the same Consolidated Act, Regions and local authorities have 6 months (180 days) to comply with the new provisions, and therefore until June 28, 2025, being able to establish particular rules for the further simplification of administrative regimes and/or for raising the prescribed power thresholds, otherwise this decree shall apply. Only some regions have thus far legislated on the matter.​​​​​​​​​​​​​​​​ It should likewise be emphasized that a proposal for amendment of the Consolidated Act is already under examination by the Conference of Regions and Autonomous Provinces.​​​​​​​​​​​​​​​​ ↩︎
  17. It should nevertheless be noted that Article 6 of the RED III Directive establishes that by July 1, 2024, Member States shall comply with the provisions introduced in Directive 2001/2018 pursuant to Article 15-sexies (“Areas for grid and storage infrastructure necessary to integrate renewable energies into the electricity system”) and Articles 16 (“Organization and basic principles of the permit-granting procedure”), 16-ter (“Permit-granting procedure outside renewable energy acceleration areas”), 16-quater (“Acceleration of the permit-granting procedure for capacity revision”), 16-quinquies (“Permit-granting procedure for the installation of solar energy equipment”), 16-sexies (“Permit-granting procedure for the installation of heat pumps”), 16-septies (“Overriding public interest”). The Directive provides, as is well known, for “Renewable energy acceleration areas” terrestrial, marine or inland water areas that a Member State has designated as particularly suitable for the installation of renewable energy production plants. In accordance with what is established by RED 3 Directive, these are territorial zones in which authorization procedures must adopt a more simplified regime focused on speed. Indeed, to conclude the authorization procedure for the construction of new renewable energy plants located in the so-called “renewable energy reference areas” which include industrial sites, parking lots, agricultural enterprises, waste disposal sites and degraded areas unsuitable for agriculture. Outside such areas, the duration of authorization procedures cannot exceed 24 months.​​​​​​​​​​​​​​​​ ↩︎
  18. As is well known, pursuant to Article 131, paragraphs 1 and 2 of the Cultural Heritage and Landscape Code under Legislative Decree n. 42 of 2004 and subsequent amendments: “1. Landscape means territory expressive of identity, whose character derives from the action of natural and human factors and their interrelations. 2. This Code protects landscape with regard to those aspects and characteristics that constitute the material and visible representation of national identity, as an expression of cultural values”.
    In this regard, for an effective synthesis of doctrinal positions and jurisprudential orientations, see P. Carpentieri, Relazioni e conflitti tra ambiente e paesaggio, https://www.giustizia-amministrativa.it. ↩︎
  19. According to Council of State, VI, September 23, 2022, n. 8167, indeed: “the primacy of values such as the protection of cultural heritage or the environment implies that they cannot be entirely sacrificed in the face of other interests (albeit constitutionally protected) and that they must necessarily be taken into account in complex public decision-making processes, but this does not legitimize a totalizing conception as if they were placed at the summit of an absolute hierarchical order. The point of equilibrium, necessarily mobile and dynamic, must be sought – by the legislator in the enactment of norms, by the Administration in procedural matters, and by the judge in control proceedings – according to principles of proportionality and reasonableness”, with commentary by F. Cusano, Il Consiglio di Stato torna sul trilemma energia – ambiente – beni paesaggistico-culturali, in https://rgaonline.it/giurisprudenza/il-consiglio-di-stato-torna-sul-trilemma-energia-ambiente-beni-paesaggistico-culturali/, but already in analogous terms Council of State, sect. IV, judgment No. 2983 of 2021.​​​​​​​​​​​​​​​​ ↩︎
  20. See Council of State, Section IV, January 22, 2024, n. 667, it remaining however unimpaired that assessments regarding the protection of cultural heritage, arising from the application of technical-scientific knowledge proper to sectors characterized by wide margins of debatability, are subject to judicial review exclusively under the profiles of logicality, coherence and completeness of the assessment, possibly also under the aspect of the correctness of the technical criterion and application procedure chosen, subject to the limit of the relativity of scientific evaluations. In proceedings of legitimacy jurisdiction, therefore, only assessments that place themselves outside the scope of debatability may be censured, since otherwise judicial review would become substitutive of that of the Administration through the superimposition of an alternative assessment, equally debatable (ex multis, Council of State, Section V, November 30,2018, n. 6819).​​​​​​​​​​​​​​​​ ↩︎
  21. In this sense TAR Sicily, Palermo, V, August 26, 2024, n. 2475; similarly see also Council of State, IV, September 25, 2024, n. 7780, which in this regard establishes: “guidelines are not binding as such, and therefore the act that denies the possibility of realizing a renewable energy generation plant with apodictic reasoning, consisting in the simple reference to the guidelines themselves, is illegitimate”.​​​​​​​​​ ↩︎
  22. Thus Council of State, IV, May 28, 2024, n. 4766, according to which “In the necessary pluralistic dialectic that must characterize the comparative weighing of various interests, it therefore appears that only one of them has had univocal and absolute prevalence, whose protection is not at all superordinate in the constitutional system to antagonistic interests, first among all that of energy production from renewable sources (the recent reform of articles 9 and 41 of the Constitution argues rather, on the level of the hierarchy of interests, in an antithetical sense). In any case, such an approach also neglects to consider that the same constitutional protection of landscape, insofar as it is informed by the aesthetic-cultural identity of the territorial form, does not exclude (but rather implies) that human intervention contributes to shaping its notion: thereby excluding a priori incompatibility of any possible alteration, given that the evolution of landscape does not stop at naturalistic data but inevitably reflects human works, obviously insofar as they are compatible​​​​​​​​​”. ↩︎
  23. On this point, see M. Renna, A. Bonaiti, Impianti energetici alimentati da fonti rinnovabili e “dequotazione” di funzioni amministrative, in M. Immordino, N. Gullo, C. Celone (ed.), Democrazia, diritti umani e sviluppo sostenibile. Quali sfide in Italia e Brasile?, Editoriale Scientifica, Napoli, 2024, 739-740, where it is appropriately stated that if there should not exist and could not be imposed “tyrannical rights”, that is, a rigid hierarchy between legally relevant interests such that one is able to prevail over the other is not practicable, the confrontation between opposing needs should be realized through weighing or balancing, even in the context of primary legislative production between conflicting legal goods. The same authors emphasize in this regard that: “the regulatory interventions of recent years, contributing to redefining the balance of relationships between environmental sustainability, ‘green’ energy production and interests (public) of other nature, have triggered a ‘conflict between values’ as a result of which the promotion of renewable energy appears to have assumed ‘tyrannical’ features with respect to other needs of a general character”.​​​​​​​​​​​ ↩︎
  24. Council Regulation (EU) 2022/2577 of 22 December 2022 establishing a framework to accelerate the deployment of renewable energy​​​​​​​​​​​​​​​​. ↩︎
  25. This is based on the assumption that renewable energy production installations, including wind power and heat pumps, are considered of fundamental importance for combating climate change, reducing energy prices and decreasing the Union’s dependence on fossil fuels while ensuring security of supply.​​​​​​​​​​​​​​​​ ↩︎
  26. The 9th recital continues by specifying that it is “appropriate, within the planning and authorization procedure, that priority be given to the construction and operation of renewable energy production installations, as well as to the development of related grid infrastructure, when weighing legal interests in individual cases, at least for projects recognized as being in the public interest”.​​​​​​​​​​​​​​ ↩︎
  27. TAR Puglia, Bari, II, 28 April 2023, n. 684. On these aspects see A. Ruggeri, La tutela dell’ambiente, dal punto di vista della teoria della Costituzione, in Dirittifondamentali.it, n. 3, 2024. ↩︎
  28. In this regard, it seems useful to recall as a further interpretative element the provisions of Recital 44 of the Directive in question, which states: “For the purposes of relevant Union environmental law, in the necessary case-by-case assessments to determine whether a renewable energy production installation, its connection to the grid, the grid itself, or the means of storage are of overriding public interest in a given case, Member States should consider such renewable energy production installations and related infrastructure to be of overriding public interest and of interest to public health and safety, except where there is clear evidence that such projects have significant adverse effects on the environment that cannot be mitigated or compensated, or where Member States decide to limit the application of this presumption to specific and duly justified circumstances, such as reasons relating to national defense. Such projects may benefit from a simplified assessment when such renewable energy production installations are considered to be of overriding public interest and functional to public health and safety”. ↩︎
  29. Council of State, IV, 2 April 2025, n. 2808. It seems appropriate to recall that in this regard the Judge overturned the ruling of the TAR Tuscany, Florence, III 26 September 2022, n. 1047, which had rejected the appeal lodged against a denial order concerning the “Request for the issuance of a Landscape Authorization for the execution of works to install photovoltaic panels”, deeming the interpretation of the previous administrations, which had considered the landscape interest to be the prevailing one, to be legitimate. ↩︎
  30. Cons. Stato, Sez. IV 12 aprile 2021, n. 2983 and in doctrine, V. Di Stefano, Il Consiglio di Stato sull’agrovoltaico, in Salvis Juribus, 2021, and allow me to refer to my contribution, G. Armao, Environmental Sustainability of the energy transititon: agrivoltaics in Italy and in the insular regions, in Ambientediritto.it, n. 4, 2024. ↩︎
  31. See Cons. di Stato, sez. VI, sent. n. 10624/2022; n. 8167/2022 and more recently n. 4766/2024. ↩︎
  32. Constitutional Court, ruling n. 128/2021, but above all Constitutional Court, February 23, 2023, n. 27, which establishes that the possibility of establishing limits on the power to authorize the installation of renewable energy production plants, pursuant to Article 19, paragraph 2, of Abruzzo Regional Law n. 5, 2022, on the other hand, is also “in open conflict with art. 117, first paragraph, of the Constitution, in relation to the objective of ensuring the maximum diffusion of renewable energy plants, pursued both by Directive 2009/28/EC, and previously by Directive 2001/77/EC, and by Directive 2018/2001/EU. This aim, reflected in the discipline dictated by the aforementioned directives regarding authorisation, certification and licensing procedures, is clearly explained by Directive 2018/2001/EU, where it is highlighted that the “greater use of energy from renewable sources or renewable energy constitutes an important part [of] the measures necessary to reduce greenhouse gas emissions and to meet the Union’s commitments under the 2015 Paris Agreement on climate change, following the 21st Conference of the Parties to the United Nations Framework Convention on Climate Change (the “Paris Agreement”)” (recital no. 2). It is therefore necessary to reiterate, in line with numerous precedents of this Court, the need to ensure the “maximum diffusion of renewable energy sources plants” (judgment n. 286 of 2019, in a similar sense, ex multis, judgments n. 221, n. 216 and n. 77 of 2022, n. 177 of 2021, n. 106 of 2020, n. 69 of 2018, n. 13 of 2014 and n. 44 of 2011) “with the common aim of “reducing greenhouse gas emissions” (judgment n. 275 of 2012; in the same sense, judgments n. 46 of 2021, n. 237 of 2020, n. 148 of 2019 and n. 85 of 2012), in order to combat global warming and climate change (judgment n. 77 of 2022)” (judgments n. 216 and n. 121 of 2022)”. ↩︎
  33. In this sense, L. Butti, “Ambiente come diritto fondamentale” e “Non esistono diritti tiranni”: Come la Corte costituzionale concilia questi due princìpi, in RGAonline, 2023. ↩︎
  34. As emphasized, a central element of the Green New Deal (GND) vision, indeed not without emphasis, constitutes an economic-productive system that precisely identifies ecological limits, such as resource consumption or biodiversity reduction, but in which the capacity to respect such limits is not founded solely on the compression of freedoms, prohibitions and sanctions, nor solely on incentives and market instruments, but on a major transformation of production, transportation and consumption modes of goods and services, and can be considered possible exclusively through the utilization of legal instruments, both of a programmatic and regulatory nature, aimed at promoting and realizing such a socio-economic model. In other words, policies and public measures that enable the actualization of the GND: converting economic and social activities to environmental sustainability, combining the need to reduce pollution with that of fostering development, limiting economic enterprise while simultaneously incentivizing it according to innovative purposes and pathways-in this regard, see D. Bevilacqua, Il Green New Deal, Giuffrè, Milano, 2024, 3-4. ↩︎
  35. Already with the “Budapest Declaration” of November 8, 2024, the European Council had outlined to the EU Commission a clear mitigation of the Green New Deal by, on one hand, ensuring “the industrial renewal and decarbonization of the EU and ensuring that the latter remains an industrial and technological power. To this end, we will develop a European industrial policy aimed at guaranteeing the growth of tomorrow’s key technologies, while paying particular attention to traditional industries in transition. We invite the Commission to present, as a priority, a comprehensive industrial strategy for competitive industries and quality jobs”. Meanwhile, on the other hand, it expressed the aspiration to “pursue the dual objective of strategic energy sovereignty and climate neutrality by 2050. To this end, we will build as a priority an authentic Energy Union characterized by a fully integrated and interconnected energy market, through the decarbonization of our energy mix and the supply of clean and affordable energy to all our citizens and all our enterprises”, see https://www.consilium.europa.eu/it/press/press-releases/2024/11/08/the-budapest-declaration/.
    With the presentation of the Communication “A Competitiveness Compass for the EU”, on January 29, 2025, the EU Commission took a position in this regard by specifying that “Europe must confront other potential brakes on its competitiveness. The transition to a decarbonised economy must be competitiveness-friendly and technology neutral, while the shift to cleaner sources of energy must reduce energy costs and price volatility. EU regulation must be proportionate” and that such a gradual approach must be considered in the context of an“Affordable Energy Action Plan”within the framework of the“joint roadmap for decarbonisation and competitiveness”,​​​​​​​​ see https://commission.europa.eu/document/download/10017eb1-4722-4333-add2-e0ed18105a34_en?filename=Communication_1.pdf&prefLang=it. ↩︎
  36. The Energy Union is based on five pillars: energy security, solidarity and trust; full integration of the European energy market; energy efficiency to contain demand; decarbonisation of the economy, in this context a significant role is given to the diffusion of renewable energy, research, innovation and competitiveness see M. Clarich, Energia, in Enc. dir., I tematici, III, Funzioni amministrative, Milano, 2022, 441.
    Among the objectives set by Article 194 TFEU, introduced by the Lisbon Treaty, are ensuring the functioning of energy, the security of energy supply, and the promotion of interconnections between energy networks, the promotion of energy saving, energy efficiency, and the development of new and renewable energy sources. ↩︎
  37. In this sense, the timely considerations of P. Chirulli, Energie rinnovabili e tutela degli interessi sensibili, tra Repower EU e Direttiva RED III, cit., pp. 317-318, who observes that Italian legislation on regional land governance “has long revolved around conservation objectives, which must be given priority and which precede, and in many cases preclude, transformation objectives, operating as so-called heteronomous constraints”. ↩︎
  38. A. Moliterni, Semplificazione amministrativa e tutela degli interessi sensibili: alla ricerca di un equilibrio, in Diritto amministrativo, n. 4, 2017, 705. ↩︎
  39. See, most recently, on the principle under examination,​​​​​​​​​​​​​​​​ R. Spagnuolo Vigorita, G. B. Conte, A. Persico, La presunzione di interesse pubblico prevalente per le fonti energetiche rinnovabili: un tentativo di inquadramento sistematico, in CERIDAP, 3/2025, 270, who aptly highlight that the core applicative issue lies in the balancing exercise entrusted to administrative authorities in the authorization proceedings for energy installations. In this regard, analysis of the early applicative practice – both of certain administrative bodies and of certain judicial organs – reveals a restrictive approach that denies the direct application of the presumption, making it contingent upon legislative or planning interventions. That said, there are nonetheless significant openings in certain judicial rulings which, if further developed, could lead to the effective recognition of the presumption’s operative force in individual proceedings, in line with the erga omnes nature of EU regulations and with RED III, which upon a preliminary examination appears to be sufficiently clear, precise and unconditional in affirming the presumption for the purpose of accelerating individual authorization procedures.​​​​​​​​​​​​​​​​ ↩︎
  40. Article 16 septies of the RED III Directive (also entitled “Overriding Public Interest”), it is worth recalling, establishes that: “By 21 February 2024, until climate neutrality is achieved, Member States shall ensure that, in permit-granting procedures, the planning, construction and operation of plants for the production of energy from renewable sources, the connection of such plants to the grid, the grid itself and storage facilities are considered to be in the overriding public interest and in the interest of public health and safety when balancing legal interests in individual cases and for the purposes of Article 6(4) and Article 16(1)(c) of Directive 92/43/EEC, Article 4(7) of Directive 2000/60/EC and Article 9(1)(a) of Directive 2009/147/EC. In specific and duly justified circumstances, Member States may limit the application of this Article to certain parts of their territory, to certain types of technology or to projects with certain technical characteristics, in accordance with the priorities established in their respective national energy and climate plans submitted pursuant to Articles 3 and 14 of Regulation (EU) 2018/1999. Member States shall communicate such limitations to the Commission, together with the related justifications”.​​​​​​​​​​​ ↩︎
  41. So again M. Renna, A. Bonaiti, Impianti energetici alimentati da fonti rinnovabili e “dequotazione” di funzioni amministrative, cit., 742-743, but see also on this subject, S. Amorosino, La “dialettica” tra tutela del paesaggio e produzione di energia da fonti rinnovabili, in Riv. giur. edilizia, n. 4, 2022,  261, as well as Id., Beni naturali, energie rinnovabili, paesaggio, Jovene, Napoli, 2012, 11. ↩︎
  42. According to the aforementioned opinion of the Council of State n. 1216, 2024, among the multiple observations made regarding the draft consolidated act, those concerning the provision on “overriding public interest” should be recalled. In this regard, the Council emphasizes that: “the explanatory report does not clarify the reason why the transposition of Article 16-septies does not include the provision of such article according to which the same interventions are considered, in addition to being “of overriding public interest,” also “in the interest of public health and safety” to which the AIR report instead refers. The advisory body furthermore emphasizes that: “From the absence of a deadline for the adoption of the decree referred to in paragraph 2 derives the ‘permanent’ configuration of the provision of such paragraph, aimed at establishing a faculty whose exercise by Member States is provided for by the second sentence of Article 16-septies ‘in accordance with the priorities established in their respective national integrated energy and climate plans submitted pursuant to Articles 3 and 14 of Regulation (EU) 2018/1999”. ↩︎
  43. See D. Wyatt, The Anaemic Existence of the Overriding Public Interest in Disclosure in the EU’s Access to Documents Regime, in German Law Journal, n. 21, 2020, 686–701. ↩︎
  44. See again E. Bruti Liberati, L’interesse pubblico prevalente alla decarbonizzazione della produzione energetica, in E. Bruti Liberati, C. Mainardis, A. Travi, Codice dell’energia. La nuova disciplina delle fonti rinnovabili, cit., 16. ↩︎
  45. About the role of dPcM in the Italian legal system see, M. Salerno, I DPCM di natura normativa tra pluralità di procedimenti e di fonti, in gruppo di Pisa, n. 1, 2024, 161 e ss. ↩︎
  46. See P. Carpentieri, Il giudice amministrativo e il cambiamento climatico, in https://www.giustizia-amministrativa.it, who highlights that the current regulatory framework has not achieved the objective of balance, “but is rather unbalanced in favor of the vision that I call “industrial environmentalism”, of an ecological transition that is subject to the domination of technology and abandoned to the free market, to the detriment of the beauty of our landscapes, which are our culture and our identity”, in a similar sense see P. Portaluri, Finto verde, in M. Immordino, N. Gullo, C. Celone (ed.), Democrazia, diritti umani e sviluppo sostenibile. Quali sfide in Italia e Brasile?, cit., 737-738. ↩︎
  47. The reference is to the masterly essay by P. Grossi, Il messaggio giuridico dell’Europa e la sua vitalità: ieri, oggi e domani, in Contratto e impresa Europa, n. 2, 2022, 5. ↩︎