Galicia gives wind projects a boost: declaring them to be of overriding public interest

The situation of wind energy projects in Galicia

Galicia is the autonomous community in Spain with the largest number of wind power generation projects in the pipeline in terms of installed capacity. Galicia has the necessary characteristics to attract this type of projects, as it has large wind resources as well as sufficient electricity infrastructure to provide an outlet for the energy generated.

Despite the above, the entry into operation of the wind projects being developed in Galicia has been slowed down during the last half of 2023 by the suspension of the authorisations of several of these projects by the Courts. The pressure from many civil platforms and the court deadlocks were jeopardising the achievement of many of these projects and indirectly the energy and industrial development of Galicia, which is intended to be overcome by means of the approved regulations.

Promotion of wind power plants with this new standard

Law 10/2023 of 28 December on fiscal and administrative measures, approved by the Presidency of the Regional Government of Galicia and published on 29 December 2023, has regulated important issues relating to wind farms under regional jurisdiction, i.e. those whose installed capacity does not exceed 50 MW.

This new regulation, as stated in the explanatory memorandum, has one objective: to promote the deployment of wind energy as renewable energy in Galicia. This objective is justified for the following reasons, among others: 

• Contribution to emission reduction targets: wind energy does not emit greenhouse gases, thus helping to meet the net greenhouse gas emission reduction and climate neutrality targets set by the European Union and Spain.
• Pollution reduction and environmental protection: as a clean energy source, it helps to halt and reverse the loss of biodiversity and improve the state of the environment in Galicia.
• Socio-economic benefits: it generates new jobs in the wind industry, fosters the development of local industries and contributes to lower electricity prices.

Justifying the above, the Galician regional government declares the planning, construction and operation of wind farms under regional jurisdiction, as well as their evacuation infrastructures, to be of superior public interest, demonstrating Galicia's commitment to accelerate the deployment of renewable energies, in line with the framework established by Council Regulation (EU) 2022/2577 of 22 December 2022 establishing a framework for accelerating the deployment of renewable energies.

This declaration of overriding public interest includes the authorisation, construction and commissioning procedures for wind farms. 

Declaration of overriding public interest of wind farms under regional jurisdiction

The declaration of overriding public interest has retroactive effects, i.e. it will apply to all those projects that did not have definitive authorisation for commissioning by 30 December 2022, regardless of the date on which the administrative authorisation procedures were initiated before the regional administration of the projects. 

As for the consequences of such a declaration, we can highlight the following as the most relevant: 

• It implies a presumption that the planning, construction and operation of wind farms are in the overriding public interest and contribute to public health and safety. This must be taken into account as an element of particular relevance when weighing the legal interests in each case in the process of planning, granting of authorisations and commissioning, unless there is evidence to the contrary and without prejudice to the rules that may determine the weighing of other interests in specific cases.
• The presumption of overriding public interest shall be considered in environmental assessment procedures for the authorisation of wind farm projects and their disposal infrastructure. These projects shall be given priority in their construction and operation, unless it is demonstrated that they have adverse effects on the environment and landscape, and that these effects cannot be mitigated or compensated for.
• It is also presumed that the environmental assessment carried out in the administrative procedure is valid. It is also presumed that the environmental impact statement has adequately assessed the significant effects of the project on the environment and the landscape, and that the conditions set out therein ensure adequate protection of the factors mentioned in the Environmental Assessment Act. Furthermore, the preventive, corrective and compensatory measures set out therein are to be considered sufficient, unless evidence to the contrary is submitted.
• It is regulated that in the event that an administrative appeal is lodged against the authorisation acts of the wind farm project or its evacuation infrastructures, and the suspension of the execution of the contested act is requested, the overriding public interest of the projects will be considered when assessing the request. 

As a counterbalance to these measures, a specific programme is regulated to monitor the effects that the construction of wind farms may have on the environment. This monitoring programme is entrusted to the Regional Ministry responsible for energy. 

Other developments affecting the sector

Among the new aspects introduced by the regulation is an amendment to Law 8/2009, of 22 December, which regulates the use of wind energy in Galicia and creates the wind energy tax and the Environmental Compensation Fund.

The amendments to this regulation include the following: 

• The splitting of projects with the aim of avoiding the ordinary environmental impact assessment of the resulting projects shall not be authorised. 
• The regional government will promote the sharing and joint use of wind farm project infrastructures. 
• It is regulated that there shall be no presumption of splitting in projects as long as each park has the capacity to operate separately, even if the infrastructure is shared with other parks. 
• Nor will it be considered that there is fragmentation when there are other parks in the vicinity promoted by the same developer, as long as it is justified that it is a rational use of the possibilities of exploitation of the land. 

Impact of the standard

At Osborne Clarke we are committed to keeping abreast of the impacts that this new regulation may have on the sector, especially in the ongoing court proceedings related to the paralysis of wind projects in Galicia.

Should you wish to know more about the new regulatory and energy sector rules and their potential implications, please do not hesitate to contact one of our experts listed below or your usual contact at Osborne Clarke.