The Council of State has suspended as a precautionary measure, until the conclusion of the judgment on the merits at the TAR, a passage of the ministerial decree on suitable areas, which gives the Regions the power to consider unsuitable even the areas deemed suitable by Legislative Decree 199 of 2021.
The appeal judges, according to what has emerged, have established that the Regions cannot define the suitable areas in a more restrictive sense than what is established on a transitional basis by the legislative decree, until the case is decided on the merits. The hearing on the merits of the pending appeals, including that of Erg, is scheduled for February 5 before the Lazio Regional Administrative Court.
The order of the Council of State suspends art. 7 paragraph 2 letter c) of the decree on suitable areas of June 2023 and risks limiting, if not nullifying, the legislative activity of the Sardinian Region which, in these very days, is discussing the bill on the identification of suitable areas for the construction of renewable energy plants on the Island.
The judges of the fourth section of the administrative court of second instance warn the Regions that "without prejudice to the exercise by the Region of the legislative autonomy that it is entitled to under the Constitution" they will have to take "into account the suspension of the provision of the ministerial decree carried out with this ordinance". According to the Council of State, in fact, "the provision in question appears, upon summary examination of this very precautionary phase, not to be fully compliant with art. 20, paragraph 8, of Legislative Decree 199/2021, which already lists the areas considered as suitable: in this primary level discipline there does not seem to be room for a more restrictive regional discipline".
The Panel does not consider, then, "the conflict with the objectives of the PNRR feared by the defense of the administration to exist". First of all, "the contested decree continues to be in force in its entirety, except for the suspended provision". Furthermore, , given that it could introduce a component of uncertainty in a framework already defined by the law".
