By: Alina Güler
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From non-complying waste storage facilities to photovoltaic parks
At first glance, the connection between a non-complying waste storage facility and the development of photovoltaic power plants is quite concealed. However, public authorities might consider the creation and placing of photovoltaic power plants on the location of the current non-complying waste storage facilities, which shall be closed, in an attempt at efficiently use the available resources.
Let us not forget that on 15 February 2022, in C-109/22, the Commission required the Court of Justice of the European Union to rule that, in failing to take all appropriate actions to comply with the Court’s Decision in C-301/17, Romania failed to meet its obligations under Article 260(1) TFEU, which was the reason why the Commission required the Court:
• order Romania, in accordance with the provisions of Article 260(2) TFEU, to make penalty payments in the amount of EUR 29,781.30 for each day of delay in fulfilling its obligation to take the necessary measures to comply with the judgment in Case C-301/17, Commission v Romania, from the date of delivery of the judgment in the present case until all the measures necessary to comply with the judgment in Case C-301/17, Commission v Romania, have been adopted;
• order Romania, in accordance with the provisions of Article 260(2) TFEU, to pay a lump sum, based on a daily amount of EUR 3,311.50, multiplied by the number of days which have elapsed from the day following the delivery of the judgment in Case C-301/17, Commission v Romania, until the date on which all the necessary measures have been taken by Romania to comply with that judgment, or, where those measures have not been taken, until the date of delivery of the judgment of the Court in the present case, the minimum amount of that lump sum being EUR 1,643,000;
• Order Romania to pay the costs.
Romania has also undertaken some basic obligations in respect of its transition to energy from renewable sources, intended to progressively replace the fossil fuel-based energy.
According to the Integrated National Energy and Climate Plan 2021-2030, “The energy sector may contribute significantly to the decarbonization of the Romanian economy. In this respect, the policies and measures currently proposed in this sector are: ♦ Applying more restrictive conditions for the conduct of business by companies in the energy sector; The current activities and the projects of the companies in the energy sector must comply with the environmental law and apply the best international environmental protection practices; ♦ Further reducing air, water and soil pollutants, as established by the law applicable to the energy sector; ♦ Co-financing projects that concern decarbonization technologies and processes, which are funded under the new EU-ETS support mechanisms (e.g. the Innovation Fund); ♦ Preparing regulations to overcome the obstacles to the achievement of private investments”.
In terms of boosting private investments, Romania comes up with some timid and impractical solutions to streamline the permitting process for creation of new production facilities. Among others, it’s worth reminding here the cramping beyond any reasonable limits of the transfer of the ownership title in agricultural lands located outside the built-in area of localities, irrespective of their quality class, via Law No 17/2014 on some measures intended to govern the sale of agricultural land located outside the built-in area of localities and amending Law No 268/2001 on privatization of companies who are entrusted with the administration of lands – public and private property of the state – to be used for agricultural purposes and on the creation of the State Domains Agency.
Such reluctance in eliminating the ordeal which the new energy facilities must go through can be justified only to some extent by the need to preserve the limited reserves of agricultural land.
The question that raises is whether or not there is, indeed, sufficient land compatible with the installation of photovoltaic panels, which would not prejudice to the necessary arable land. The answer is known – yes, there are some unproductive lands; on the other hand, the creativity of creators of environmental technologies is limitless; such technologies include nowadays the so-called agro-voltaic power plants which facilitate the control of drought, the artificial lakes and the former locations of landfills.
In terms of infringement proceedings though, the public authorities might consider a conversion of non-complying waste storage facilities to new renewable energy facilities, via some integrated projects. Obviously, the land on which waste storage facilities are located must undergo a long period of rehabilitation; in the meantime, to avoid leaving the land unused, the photovoltaic power plants might as well be a proper solution.
However, the public authorities failed to define integrated energy projects and the public procurement procedures launched so far are limited to some contracts for design and execution of works meant to terminate the non-complying waste storage facilities. The later use of such lands is left to the hazard or, more dangerously, sometimes the solutions imagined – create leisure parks or the like – flagrantly conflict with the public health and hygiene rules governing the people’s life environment.
Attracting private investors – via concession contracts – with a view to develop and operate photovoltaic power plants on the location of the non-complying waste storage facilities may be the best solution to further and safely use these lands. Whereas these lands are located inside the built-in area of localities, the urban planning related restrictions and, in particular, those regarding the removal of lands from agricultural circuit, are no longer an issue.
Where there is a will there is a way – it’s the principle that the public authorities should be guided by in optimizing the responsible and sustainable use of resources, before infringement proceedings are initiated.
Article published on Avocatnet.ro