Kirja edastamine

EUROPEAN COMMISSION DIRECTORATE-GENERAL FOR ENERGY Directorate C – Green Transition and Energy System Integration C.4 – Infrastructure and Regional Cooperation Best practices on the permit granting system applicable to smart grids projects The Platform of National Competent Authorities in charge of the permit granting process for projects of common interest (NCA Platform) is a voluntary cooperation forum, which counts with the participation of the National Competent Authorities (NCAs) in charge of the permitting decisions for projects of common interest (PCIs) ( 1) from all of the EU Member States. The NCA Platform aims to create a forum to share best practices, encourage cross-border cooperation and consolidate technical knowledge, ensuring that solutions to current issues are identified. The NCA Platform also aims to support Member States to adequately implement the TEN-E Regulation permitting provisions and accelerate the implementation of PCIs, identifying measures to speed up general infrastructure permit granting processes and develop, standardise, and streamline the national system. The discussions held in the NCA Platform revealed the need to identify best practices on the permitting of smart grid projects which require different planning from traditional grid projects. The particular characteristics of smart grids projects, namely geographic location non-linearity, leads to some practices applied by NCAs to the permit granting of traditional transmission infrastructure not being transferable ( 2). The suggestions for improving smart grids’ permit granting processes may also benefit other project categories since it incentivizes system flexibility and the ability to identify and address inefficiencies. 1. INTRODUCTION The revised TEN-E Regulation strengthened the existing provisions on PCI permitting. Under the Regulation, PCIs must be treated as projects of highest national significance, consequently they should benefit from any existing accelerated procedures and national priority status. Additionally, the TEN-E Regulation imposes a (1) Article 8(1) of the TEN-E Regulation. (2) Large electricity and gas interconnectors constitute the most usual PCIs and, therefore, the categories in which NCAs have been able to develop best practices and lessons learned. Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË – Tel. +32 22991111 Office: DM24 06/117 – Tel. direct line +32 229-59274 comprehensive, but flexible, permitting regime structure with a maximum duration of 3.5 years (3). Specifically relevant in the context of smart grids, the TEN-E Regulation reflects the different circumstances, works, and overall structure of smart-grid projects, when compared to traditional transmission infrastructure projects. It does so, by establishing a flexible and adaptable permitting regime and empowering NCAs and the national legislators to tailor the procedural requirements to the reality of different project types (4). It should also be mentioned that the TEN-E Regulation also establishes requirements, namely for public consultation ( 5) which must be enforced in an appropriate and proportional manner that reflects the projects’ potential impact on the population, keeps any delays to a minimum and ensures public participation while minimizing public opposition. Aiming to identify how the permitting of smart grid projects can be addressed in an efficient manner, the Commission contacted the current smart grid PCI promoters to collect first-hand experiences on issues faced and potential solutions to be implemented by Member States. This exercise regards electricity smart grid projects, but the findings apply as well to future smart gas grids projects due to a series of similar characteristics. 2. SPECIAL CHARACTERISTICS OF SMART GRIDS PCIS’ PERMITTING PROCESS CONTEXT AND ASSOCIATED ISSUES In light of the tailored approach of the TEN-E Regulation to permitting, which establishes that permit granting processes must be fit for purpose, key features of smart grids projects that must be reflected upon by the national authorities to structure the permit granting processes in line with Article 10(6) of the TEN-E Regulation. Smart-grid project promoters have reported that, in several jurisdictions, the permit granting process applicable to smart grid projects is not fitted to the project needs. Promoters consider that the process fails to provide suitable decisions in an expedited manner placing economic and organisational burdens on promoters. As developed below, NCAs should build up their knowledge on how smart grid projects are dealt with across the EU, assimilating best practices on matters of spatial planning, environmental requirements, and options for permitting acceleration. This should be followed up with assessments of the national permit system, and implementation of the necessary adjustments. On the side of the promoters, they should build up knowledge and capacity on PCI permitting, as discussed below. (3) Article 2(9) TEN-E Regulation, https://eur-lex.europa.eu/legal- content/EN/TXT/?uri=uriserv%3AOJ.L_.2022.152.01.0045.01.ENG&toc=OJ%3AL%3A2022%3A152%3ATOC. (4) Amongst other things, the Regulation suggests that, when smart-grid projects, due to their specific elements, do not require the performance of an environmental impact assessment, the pre-application phase of the permitting process can be shortened or even skipped. (5) This requirement aims at fostering public acceptance for the projects. 2  2.1. The Promoter While PCIs are frequently developments of the transport grid infrastructure, falling under the remit of the Transmission System Operators (TSOs), smart grids projects often regard the upgrade or development of new assets, closer to consumers and renewable energy production, therefore, at the distribution system level. They are mostly promoted by Distribution System Operators (DSOs). Following Chapter III of the TEN-E Regulation, PCIs are characterised as necessary and are to be afforded the most rapid treatment in administrative procedures and the status of highest national significance. While the TEN-E Regulation does not differentiate between DSO and TSO promoted PCIs, DSOs promoting smart grid PCIs have identified differences in treatment. Specifically lack access to the status of highest national significance and to the accelerated permitting regime, both of which are available for TSO promoted PCIs. Additionally, the DSOs have reported that the permitting system applied to their smart grid PCIs is designed to meet the specificities of the TSO promoted projects. This design presents incompatibilities with DSO promoted PCIs, specifically the timelines for presenting information for authorizations and studies requirements, which do not account for projects’ characteristics and their inability to conduct certain assessments and produce documentation within its timeframe. This differences in treatment place DSO backed PCIs in a comparatively worst permitting situation to TSO backed projects and may disincentivize DSOs from applying for PCI status. This may jeopardize the contribution of the smart grid projects towards reaching the objectives of the TEN-E Regulation. Therefore, the most beneficial treatment should be available to both TSO and DSO promoted PCIs, providing them with priority status in national administrative and legal procedures ( 6) and labelling them with the highest national status applicable in the respective Member State. In accordance with Article 8 of the TEN-E Regulation, the permitting schemes in place should contribute to the most efficient and timely granting of the comprehensive decision (7). Additionally, following Article 10 of the TEN-E Regulation, national authorities are to accelerate the permit granting process for each category of PCI adapting their requirements for start of the permitting process and project submission in accordance with the project nature, size, need (or not) for an environmental impact assessment and any other need of fewer authorisations to reach the ready to build phase. In this sense, Article 10, empowers Member States to exclude the requirement of a pre- application phase for permitting granting processes dealing with projects that do not require it or would not benefit from it. Lastly, the Article clarifies that its time limit requirements should not be applied to the prejudice of shorter permitting durations imposed by the Member State (8). From the combined reading of the provisions results that permit granting processes should be tailored to the project’s needs and characteristics and their difference from classical energy transmission projects cannot lead to a worst treatment. It follows that, to ensure an efficient national permit granting process for smart grids, NCAs must assess to what extent DSO-promoted projects are treated in a suitable manner, i.e. to what extent (6) To the extent these are available at the national level. (7) Article 8(3) TEN-E Regulation (8) Article 10 (3) and (9) TEN-E Regulation 3 does the national system ensure that all benefits available to TSO project promoters are also available to DSOs. Alternatively, in case such beneficial regimes are not directly applicable to DSOs, NCAs should assess whether DSOs are treated under a permitting regime with an equivalent degree of benefits. In that sense, NCAs should also ensure that the national requirements are suitable to be imposed on DSO promoted PCIs. That implies that they do not represent unnecessary or unjustifiable burdens on smart-grid PCIs that are not faced by identical non-PCI projects at DSO level, nor that the burdens faced could only be justified to apply to TSOs due to their different configuration, monopolistic position, broader geographical coverage, or any other distinctive trait not shared with DSOs. (9) In parallel, DSOs should build the capacity that allows them to efficiently manage the smart grids permit granting process, and devise and submit all the necessary documentation in a timely manner. This can be done by developing the internal competence and expertise to deal with permitting matters or through the comprehensive use of contractors with relevant experience. 2.2. Decentralization of project location and contact with the authorities concerned A smart grid project may consist of reinforcements and the development of new infrastructure in a non-linear fashion, i.e. in punctual locations covering a considerably wide geographic area. Promoters have reported that the contact with authorities concerned is not always mediated by the NCAs, identifying an issue of lack of guidance and support when communicating with the different authorities. This lack of guidance hinders the promoter’s ability to meet the different requirements they face. In addition, lack of support from the NCAs, allows for the authorities concerned to request whatever documentation they consider necessary according to their own interpretation of the applicable rules, meaning that promoters are dealing with different requirements for the same issue depending on the region or municipality. The promoters are not able to dispute the authorities’ concerned interpretation of the regime without incurring substantial delays afferent with launching legal challenges or administrative complaints. Furthermore, as regards the communication with the national environmental authorities, promoters have reported that, these are contacted late in pre-application phase of the permitting process, after the notification of the projects. This leads to environmental concerns regarding the projects materializing late, leaving a short timeframe for the promoters and the authorities to react. This requires quick adaptations of the project by the project promoters which is not ideal. The TEN-E Regulation establishes in Article 8(3) different permitting schemes which can translate in different responsibilities for NCAs leading them to establish different relationships with the authorities concerned. In short: (9) Generally, the system should provide equivalent treatment to TSO and DSO backed PCIs in terms of administrative and legal treatment with all forms of expedited and most beneficial treatment, as well as any other forms of support available to certain promoters. Differences in treatment should take place only, when justified by different technical specifications of the project, and even then, the NCA should strive to ensure that the quickest and most beneficial permitting treatment possible is available to the PCI promoters. 4  - Under the integrated scheme, NCAs will issue the sole legally binding decision, therefore any contact with authorities concerned is expected to be of the initiative of the NCA and not involve the promoter. - Under the coordinated scheme, the legally binding decisions are issued by the authorities concerned, or the NCA, in the absence of a decision by the authority concerned. The NCA should coordinate the process drawing up schedules, organising work groups and managing the contact with the authorities concerned. As such, under this scheme, contact with the authorities concerned is expected to be mainly handled by the NCAs with minimal involvement of the promoter. Where the involvement is necessary it is to be facilitated and mediated by the NCA. - Under the collaborative scheme, NCAs cannot issue decisions in the absence of one by the authorities concerned, but they retain the role of coordinators of the procedure, drawing schedules and monitoring compliance. Under this scheme, contact with the authorities concerned can be expected to involve project promoters, who represent their own interests, but the dialogue should be initiated, facilitated, and mediated by the NCA which manages the procedure. Even if the permitting needs cannot be considered simultaneously, NCAs should work with project promoters establishing clusters of works that can be authorized simultaneously due to their geographical proximity or overlapping time frame when determining the permitting schedules mentioned above. Furthermore, where PCIs require decisions to be taken in two or more Member States, Article 8(5) establishes that the relevant NCAs should ensure efficient and effective cooperation and communication among themselves across the permit granting process. Additionally, it provides that Member States should provide joint procedures to the extent possible and provide in particular joint assessments of environmental impacts. Lastly, the establishment of the duration and implementation of the permit granting processes as provided by Article 10(6) of the TEN-E Regulation applies in this situation as well. The NCAs must cooperate with the promoter, and other authorities concerned, assessing the scope of the reports and documents to be provided by promoters as part of the application file (including any environmental reports) and mediate the contact with promoters when missing information is identified. During the pre-application procedure, NCAs should establish the scope of the documents and reports required under the checklist established in the manual of procedures and draft (in cooperation with promoters and authorities concerned) a schedule which specifies the decisions and opinions to be obtained, procedure stages and their duration, major milestones, concerned stakeholder, authority resources planned and additional resources that might be needed (10). Moreover, the TEN-E Regulation clarifies that requests for information and documentation are to be made during the pre-application phase. In the statutory permit granting phase additional requests can only be made if justified by changes of circumstances (11). Consequently, the diverse interpretations of the authorities concerned (10) TEN-E Regulation Article 10m paragraph 6 (a) and (b) and Annex VI paragraphs (1) (e) and (2). (11) TEN-E Regulation article 10(6) a) and c) and final 5 leading to requests for additional assessments after the pre-application phase indicate an inadequate implementation of the TEN-E Regulation. To address the mentioned issues, NCAs must respect the TEN-E Regulation provisions, while taking into consideration the entirety of the project’s geographic scope. Regarding, projects with physical infrastructure spamming over two different Member States, the following scenarios could be considered: - If the cross-border elements of project are physically connected it may not make sense to split the projects into sections in each of the respective Member States. In this situation the communication and coordination between the NCAs is key to ensure that the projects are deployed and implemented within the expected timeframe. The elements of the project should be seen as parts of a whole, with assessments, document requests, public consultations, and any other administrative steps not being duplicated by the NCAs, and authorities concerned. To achieve it, the use of digital formats for consultations and documents should be used to simplify and accelerate the communication across authorities, and between authorities and promoters. - When the project is not continuous across a border, it may be warranted to split the project into two main sections. Nevertheless, the entirety of the project in each jurisdiction should, as much as possible, be considered as a single project. In this sense NCAs communication is essential to coordinate the schedule of the permit granting process, having requests, as much as possible, issued simultaneously. The coordination simplifies the procedure for promoters, preventing one-sided delays from hindering the entirety of the project, precluding unnecessary duplication of requests, and facilitating the promoter- authority dialogue. In what regards the specific issue of lack of communication between NCAs and project promoters, the provisions of the TEN-E Regulation impose a need to provide timely and comprehensive support to project promoters. To do so, NCAs should maintain constant contact with promoters during the permit granting process offering support and guidance where needed. This can be achieved by, amongst other things, holding bilateral discussions early after the project receives the PCI status, to assess the project permitting and public consultation needs, advise on how to best address them, and establish and support contacts with the relevant authorities. Such dialogues ensure compliance with the requirements of Article 10 of the TEN-E Regulation, improves the early-identification of issues, simplifying their mitigation, and guides promoters from other jurisdictions. The support of NCAs is also of particular relevance in the relation between promoters and authorities concerned in charge of environmental impact assessments. The NCAs experience as regards permitting different projects, with different environmental issues, makes them a key support with other authorities concerned. This may help in the early identification of issues and of available exemptions from environmental assessments. Considering the added benefits, it is warranted for Member States to allocate financing for specific NCA resources offering guidance and support for project promoters. 6  2.3. Sequential nature of the permitting procedure When compared to standard PCIs of grid development and reinforcement, smart grid projects are not capable of addressing all their permit needs at the beginning of the project implementation. This is caused by the need to build part of the project before reaching the necessary degree of certainty over the remaining infrastructure needs ( 12). However, project promoters have been requested to provide NCAs with the precise planed location of their assets and the associated environmental impact studies during the pre-application phase, when they often lack such detailed information for the entire project. As a result, promoters have “sliced” their projects into smaller sections that they can detail with certainty, before completing the design of the subsequent sections of the projects. This implies that permits are requested sequentially for the “sections” of the projects, leading to require several permits (at least one for each project section) to complete a single project. The “slicing” of projects and its non-linear implementation of decentralised assets, also affects how public consultations are conducted. These will take place in a non- centralized manner and tend to focus on the local element of the grid in the concerned area. Due to their proximity with the affected communities these local public consultations can be used to foster public acceptance. On the flipside, this is reported to result in more technical public consultations, as the discussions focusing on elements in isolation from the whole project is perceived to affect the overall impression of the public. , In this respect, it would seem recommended for project promoters to take such matters into account when drafting the concept for public participation in line with Article 9(3) of the TEN-E Regulation in order to achieve the best public engagement that both fosters public acceptance at regional and local level, but also takes the entire project into account. Moreover, project promoters should invest into building their capacity to design early public consultations that allows for the public to gain knowledge about the entire project without being overwhelmed by its technical details. To acquire the capacity required, promoters should either resort to contractors with experience on public consultation and stakeholders’ engagement or ensure that their internal resources are able to deploy a non-technical, comprehensive, and effective project for local consultation. Additionally, the promoters must ensure that the project website is kept up to date with all relevant information available in the relevant languages as provided for under article 9(7) of the TEN-E Regulation. On the NCAs side, while they will have to rely on promoters’ ability to draft project public consultations, if the NCA has the practical experience with similar projects it may provide guidance on the format, timing, and geographical separation and centralisation of the consultations leading to an efficient process that complies with the requirements of Article 9 of the TEN-E Regulation. Lastly, on the subject of public consultations it is also relevant to foster the use of digital communication tools and the sharing of the relevant documents also in digital format in line with Annex VI of the TEN-E Regulation. This fosters engagement with the public by facilitating access to relevant information and allowing to reach stakeholders from broader geographic areas. Regarding the issue of multiple permit requests, it is important to consider and assess the possibilities for the tailoring the permitting granting procedures to smart grid (12) Necessary degree of certainty, in this context, means that the project promoter has reached a stage in which it understands the project needs enough to establish a local planning which is clear enough to meet the detail threshold required by the permitting authorities under the national regime. 7 PCIs and acknowledge that projects may be composed of a multitude of small investments: either new assets or modernizations of existing investments. As such, it is warranted to access possibilities to reduce the number of assets that require permits too only new assets that substantially alter the existing infrastructure, or those capable of having an impact on the environment. In that sense, minor changes as upgrades, maintenance, or the addition of parallel infrastructures of reduced impact might not require permits and should be able to rely on the authorisations in place for the original infrastructure. 2.4. Validity of the permits The promoters have also reported that some Member States’ systems impose a maximum duration for certain permits, requiring the promoters to request an extension or a new permit, particularly for building permits (13). In some cases, this implies that promoters have to do, or re-do, certain assessments and studies, leading projects to be delayed beyond the maximum duration of 3.5 years ( 14), even if the project did not require an environmental assessment or pre-application phase. In the case of smart grid PCI’s, works tend to last for around five years, and the validity of the building permits as reported by most project promoters is shorter than five years. Therefore, requesting additional/new permits is unavoidable. Promoters already mitigate the effects by “slicing” projects into sections, or clusters of assets, and balancing the permit validity with the need to conduct works sequentially. Promoters also tackle the issue by planning the project development with different asset clusters’ allowing permit granting processes to run in parallel as much as possible. Promoters also submit re- permitting requests before the expiry of the respective permits. However, these mitigation measures may result in burdensome and complex project planning, and do not exclude the risk that “repeated” sets of permits are required for a single project section. The TEN-E Regulation defines the comprehensive decision in article 2(3) as the result of the permit granting procedure indicating that projects have reached a ready to build phase (15). The TEN-E Regulation does not address the validity of the comprehensive decisions and its constituting elements, but it stands to reason that the national legal systems must establish validity regimes that do not devoid the decision of its fundamental role of marking that works can be started. Furthermore, validity regimes must also not jeopardise the projects’ ability to comply with the maximum duration of the permit granting process under the TEN-E Regulation. In this sense, the impact of the validity of the permits must be balanced with their role as a legal safeguard against changes of circumstances and an incentive for permit holders to conduct the works within a reasonable period. To comply with the TEN-E Regulation while balancing the Member States interest on permits validity, permits duration must be calibrated according to the reality of the projects. In order to do so for smart grid projects four measures could be identified: (13) Average reported duration of 2-3 years. (14) Article 10(2) TEN-E Regulation (15) The permit granting procedure is described in article 10 of the TEN-E Regulation and the comprehensive decision as the document or set of documents resulting of the permitting process is addressed in Article 8 of the TEN-E Regulation. 8  - First, issuing permits with a duration that matches the estimated completion of the projects, as this should exclude the need to request additional permits. - Second, ensure that the validity period does not run out when works are ongoing. This can also translate into not counting the work periods towards the validity limit, penalising only promoters who do not conduct works. - Third, ensure that permits are automatically renewed for ongoing projects without additional costs and especially without the need to conduct additional assessments. - Fourth, deploy longer lasting permits encompassing an array of works and allowing the promoter to conduct the works in the order that is most suitable with the project design. Lastly, the permitting schedules established by the NCAs in cooperation with promoter and authorities concerned should afford sufficient time for projects to conduct their works serving as much as possible as a basis to extend the validity of permits and limiting the need to request additional permits on the basis of new assessments. 2.5. Project costs When compared to other infrastructure projects, smart grid projects, although varied in size and cost, tend not to be as costly as larger infrastructure. Nonetheless, due to the different type of works they entail (16) and the sequential manner in which they need to be implemented, they can require intricate financial planning dealing with personnel allocation, uncertain equipment costs, and unclear administrative costs of acquiring the necessary authorizations and conducting the associated assessments. Promoters have reported that, in some jurisdictions, permit granting processes for sequential permits have associated charges. In fact, promoters stated that in certain jurisdictions those costs can be identical to that of the first request, which is calculated as a percentage of the project cost. Considering the size of PCIs, their costs can be significant, and their multiplication represents a considerable burden. In the case of smart grids, the potential costs increase may disincentivize promoters from requesting permits in the most expedited manner. Promoters may have an interest to behave in the most cost-efficient manner, which may justify halting permit requests until the developments for parallelly-developed elements are finalised before launching the next permits’ “batch request”. Such behaviours can result in sub-optimal construction, and permit granting duration. The TEN-E Regulation does not provide suggestions for financial planning and resources allocation. Nevertheless, it does call for simplification and streamlining of permit granting procedure, consequently pushing for a reduction of the administrative costs faced by project promoters to the minimum possible (17). Additionally, as seen (16) Refurbishment and upgrade of existing grid infrastructure, creation of new substations and creation of a communication infrastructure parallel to the grid in a large and non-continuous geographical area. (17) See TEN-E Regulation paragraphs (42) (43) of the preamble, together with the objectives described in Article 1 paragraph 2. (b), and the willingness to streamline environmental assessment procedures from Article 7 (5). 9 above, during the pre-application procedure NCAs must cooperate with the promoter, and other authorities concerned, establishing a schedule which specifies the decisions and opinions to be obtained, procedure stages duration, major milestones, concerned stakeholders, authority resources planned, and any additional resources required. Lastly, the TEN-E Regulation also addresses the issue indirectly by requiring that the permit granting processes are established in the most efficient way, therefore in a manner tailored to address the project needs (18). To address the cost concerns applicable to smart grids in line with the Regulation, the permitting granting procedure’s cost must be reduced to a minimum necessary. As such, one could consider possible centralisations of permitting procedures and ensuring a suitable validity for the permits to reduce administrative costs. However, the fundamental action in this regard, is that NCAs assess their national systems and assure that the process fits project characteristics and, to the extent possible, avoid the need for re- application or renewal of permits, as these can lead to delays and hurdles in implementation. NCAs should also ensure that the permitting schedules established in cooperation with the promoter and the authorities concerned afford the project sufficient time to conduct its works. (18) TEN-E Regulation, Article 8(3): “Member States shall implement the schemes in a manner which, according to national law, contributes to the most efficient and timely issuing of the comprehensive decision.” Please note that the requirements of the TEN-E regulation are flexible and are to be fulfilled in a suitable manner that does not add administrative steps to the permitting granting processes or leads to delays. 10 Saatja: "EVANGELISTA Hugo" <[email protected]> Teema: Smart Grid Best Practices Paper_Draft Kuupäev: 2023-04-12 13:44 Dear Members, I am glad to share with you the draft paper (attached and uploaded on CIRCABC). In order to keep continue with its development we ask you for any written comments that you may have within one month. We will also have an opportunity to address any pressing comments in the next NCA platform meeting, but we would like remind you that we stand available to any bilateral exchange to improve the text, and incentivise you to reach out to us if helpful. Once the text is finalized we intend to publish the non-paper on our website, making it easily available to all interested parties. Thank you all for your continued collaboration. Kind regards, HUGO EVANGELISTA Legal & Policy Assistant European Commission Directorate-General for Energy (ENER) Infrastructure and Regional Cooperation (ENER.C.4) BRU-DM24 06/117 B-1049 Brussels/Belgium +32 229 - 59274 <mailto:[email protected]> [email protected]