Main novelties of Decree-Law 16/2019 of 26 November on urgent measures for the climate emergency and the promotion of renewable energies

On 29 November 2019, Decree-Law 16/2019 on urgent measures for the climate emergency and the promotion of renewable energies (hereinafter, the "Decree-Law") came into force. The new Decree-Law repeals Decree 174/2002, of 11 June, regulating the implementation of wind energy in Catalonia, Decree 147/2009, of 22 September, regulating the administrative procedures applicable to the implementation of wind farms and photovoltaic installations in Catalonia and Article 33.3 of the Regulation on Urban Planning Law, approved by Decree 305/2006, of 18 July.

After ascertaining that in 2017 renewable energies accounted for only 8.5% of Catalonia's final energy demand, far from the 20% set by the European Union in 2020 and, having its main cause in the earlier Decree 174/2002 of 11 June, regulating the implementation of wind energy in Catalonia, which greatly limited the implementation of wind farms in that autonomous community, the Government of Catalonia has decided to counteract this situation and promote the implementation of renewable energy through the approval of this Decree-Law. The purpose of this law is to adopt urgent measures to deal with the climate emergency, to modify the Consolidated Text of the Urban Planning Law approved by Legislative Decree 1/2010, of 3 August (hereinafter, the "Urban Planning Law") to facilitate and simplify the implementation of installations for the use of solar and wind energy and to determine the requirements for the authorisation of wind and solar energy installations, to define the energy, environmental, urban planning and landscape criteria that must govern their implementation and to simplify the procedure for authorisation.

Firstly, as far as climate change measures are concerned, they regulate the objectives for the use of renewable energies in Catalonia, the arrival of electric mobility in transport, the exploitation of the potential of renewable energies in ports, as well as the prohibition of the granting of research permits for fracking on urban or developable land, at a distance of less than 500 metres from urban centres and in cases where water resources are affected, areas that are the object of special protection within the scope of the Catalan river basin district or areas belonging to the Natura 2000 Network.

Additionally, the implementation of new facilities for thermal use that use petroleum coke or coal as fuel in the activities of the annexes to Law 20/2009 of 4 December on the prevention and control of activities is prohibited.

Further on, Chapter 3 contains modifications to the Urban Planning Law.

The principal amendment is contained in Article 5 of the Decree-Law, which incorporates a new Article 9 bis, regulating two cases of direct application on installations for the use of solar energy and the rehabilitation of buildings.

The first case allows the implementation of facilities for the use of solar energy, without the need to modify urban planning, on roofs and plots of urban land not occupied by buildings, provided that certain characteristics are met.

The second scenario allows, under certain circumstances, the authorisation of the occupation of land reserved for urban development systems or private land that cannot be built on, which are indispensable for accessibility or for reducing the annual energy demand for heating or cooling of the building, for as long as the building exists.

Additionally, it is expected there will be simplifications to the regulation of the authorisation of wind or solar photovoltaic electricity production facilities.

Firstly, the "Renewable Energies Committee", a multi-departmental collegiate body, was created to analyse the viability of draft projects for wind farms and photovoltaic solar plants, based on their location. It is also responsible for carrying out environmental impact assessments of projects for these facilities.

Following the creation of this body, interested parties wishing to implement a wind farm or photovoltaic solar plant are required to first consult the Committee on the viability of the site and, optionally, the Business Management Office, on the scope and level of detail of the environmental impact study. The Committee must reach a resolution within 3 months. In the event that no response has been obtained within this period, the project authorisation procedures may be initiated.

Once the favourable decision has been obtained, or in the event that no response is received from the Committee, within two years, an integrated procedure will be initiated to obtain the necessary authorization for the implementation of a wind farm or photovoltaic solar plant for the entire project, including: (i) in environmental matters, an environmental impact assessment of the project, when required, (ii) in town planning and landscape, the approval of a specific project of public interest on undeveloped land and (iii) in energy matters, prior administrative authorisation and authorisation for the construction of the wind farm or photovoltaic solar plant.

In the case of hybrid installations - wind and photovoltaic - the joint processing of the authorisation is foreseen and, if appropriate, the obtaining of a single joint authorisation.

The administrative authorisation on energy matters may be transmitted under the authorisation of the competent energy body within three months from the date of submission of the application provided that (i) the installation is fully operational and has a definitive commissioning report and (ii) the acquirer meets the conditions required of permit holders.

Once the construction of the wind farm or photovoltaic solar plant has been completed, the owner of the facility must apply for the operating permit and registration in the Registry of Electricity Production Facilities of Catalonia and in the Registry of Self-Consumption of Electricity.

Finally, a dual regime of modifications of wind farms and photovoltaic solar plants is envisaged, depending on whether they are substantial or not, for which consultation may be made prior to the presentation. If the Committee considers the modification to be non-substantial, it must notify the competent energy Department so that it can approve the modification in question. On the other hand, if it considers the modification to be substantial, the integrated administrative authorisation procedure analysed above must be initiated again.