Unappealable, as a sort of milestone of law embedded in the tortuous and perennial clash between the State and the Region. The sentence of the Council of State, for history the number 2464 of 4 April 2022, goes well beyond the judgment on the wind attack on the Abbey of Saccargia and on the Valle dei Nuraghi. There is not only the blunt rejection of the project of the multinational E2i Energie Speciali, which follows that of the ERG already stopped by the TAR in the same area, but the pronouncement of the fourth section of the highest judicial assembly goes far beyond. To be more precise, it concerns 98.8% of the regional territory of Sardinia, burdened by a detailed plan of the Region which, with resolution no.40 of 7 August 2015, had sanctioned the areas not suitable for wind farms.
The suggestion
The Judges of the High Administrative Court, in fact, among all the points taken into consideration, have decided to nail the sentence to that regional discipline that did not block the areas a priori to the installation of shovels, but "suggested" that in that 98.8% of the regional territory there is a very high probability of having wind projects rejected. It is precisely at that point of the sentence that the Council of State overwhelms without appeal the greedy expectations of those who wanted, from north to south of the island, to "plant" shovels everywhere without restraint. A nerve center of the sentence firmly anchored to the principles expressed by the Judge of the Laws, the Constitutional Court. The words of the magistrates are valid for E2i's aeolian shareholders, but are explicitly addressed to all those who wish to take a similar path: «All the complaints raised by the applicant company against the resolution of the Sardinia Regional Council no. 40/11 of 7 August 2015, as the Board did not find the alleged conflict of the aforementioned resolution nor with art. 12 of the legislative decree n. 387 of 2010, nor with the guidelines referred to in the ministerial decree of 10 September 2010 ". In a sentence, the Judges decline the three pillars of the provision: stringent constitutional rules on the primary competence of the Region, the Sardinian regional provisions in line with the general principles of the state system and, finally, the State cannot impose anything specific on a Region. a Special Statute which has primary competences in well-defined subjects. And it is precisely on the full legitimacy and validity of that resolution that the Judges demolish the claims of the multinational wind company, which, despite itself, has become the standard-bearer of those many projects located in that area, close to the Nuraghi Valley, in the proscenium of Saccargia.
Unsuitable areas
The device of the sentence is as clear as it is explicit: "The resolution of the regional council - the Judges write - indicates the areas" unsuitable "for the installation of wind farms, without however placing any constraint or foreclosure of a general nature, limiting itself only to indicating - for the benefit of private operators - the areas where there is "a high probability of a negative outcome of the assessments in the authorization phase", therefore the buffer zones cannot be interpreted as mandatory minimum distances ". The togates then reaffirm the full validity of the type of blades governed by the regional resolution: "Wind power plants are distinguished by" size "and" power of the wind turbines ", as the greater difficulty of setting up large wind power plants is evident , like the one that is the subject of this judgment ".
Primary competence
And, finally, the Judges decline the essential point, the Constitutional one, which also makes the government's claims to invalidate the statutory prerogatives of the Region useless through ordinary rules or provisional decrees. The togates write: "The Autonomous Region of Sardinia, with the resolution of the Giunta, has implemented the primary legislative competence, provided for by the statutes, on the subject of Landscape-Environmental Protection, listing the areas not suitable for the outcome of an in-depth investigation on each individual site of interest, which, quite legitimately, can also include the reasons for protecting the cultural identity of the population settled in the area ".
Armored Sardinia
This is the passage that blocks 98.8% of the regional territory on the constitutional level. An "unsuitability" clause indispensable for the sacrosanct protection of exclusive prosceniums and landscapes, monuments and identity assets. Having recognized that protection as impregnable means that even the government decree, the one concerning the mega wind farm located between the territories of Nulvi and Ploaghe, always close to the Abbey of Saccargia and the Valle dei Nuraghi, will have to give way before such an obvious decision of the Supreme Administrative Court.
Draghi Decree
That provision of the Draghi government, the content of which is still unknown, has so far only been announced. As soon as it is published in the Official Gazette, a new battleground will open up with regional institutions. Until now, the potential confrontation with the State had seen the Constitutional Court as a battlefield, but, given the ruling of the Council of State last Monday, announced in advance by the Sardinian Union, the dispute could immediately move to the administrative judicial level. The first conflict in the classrooms of an administrative court, that of Lazio in this case, will concern the decree approved motu proprio by the President of the Council of Ministers with the planned wind invasion of the Erg, between Nulvi and Ploaghe. An area similar to that rejected by the Council of State, with the same monuments and similar landscape and identity values, with an impact that would be even more devastating thanks to 27 new very large generators, almost 200 meters high. It is here that the sentence of the Council of State will measure the full weight of the institutional conflict. On that provision, the Region will have two alternative or simultaneous ways available: to appeal to the Constitutional Court, raising a conflict of attribution or to resort to administrative jurisdiction. The Tar road is the one that, in the light of the ruling of the highest administrative judges, makes it easier and quicker for the Region to defend its statutory and constitutional prerogatives. Now, it is certain, the confrontation with the State will move to the courtrooms: the only way left to assert rights and respect for the Nuraghi Island.
