News about ENR projects: CR 2017, the public health crisis consequences, and the future calls for tender of the CRE

News about ENR projects: CR 2017, the public health crisis consequences, and the future calls for tender of the CRE
Can the construction on site continue? Is the investigation of building permits or environmental authorizations being pursued? Can the public enquiry take place? Are appeals against the authorizations suspended?   Here are some of the issues that currently interest you, as actors in the renewable energy sector. You’ll find below some of the many measures adopted by the French Government empowered by Law No. 2020-290 of 23 March 2020 as part of the state of health emergency regarding ENR projects.  

1. Town planning authorizations, environment and progress of the construction sites

  Regarding authorizations under investigation[1]:
  • Applications for authorizations submitted before 12 March 2020: suspension between 12 March 2020 and the end of a one-month period following the end of the state of public health emergency, i.e. in principle until 25 June 2020.
  • Applications submitted after 12 March 2020: the starting point of the period of investigation will begin at the end of a period of one month following the date of the end of the state of public health emergency, i.e. from 25 June 2020.
  • Public inquiry procedures shall be suspended, except for some that are allowed to be continued by electronic means, if (i) it is in the national interest and (ii) it is urgent and (iii) the delay caused by the interruption of the inquiry is likely to lead to consequences that are difficult to remedy.
Regarding authorizations expiring within the current period, an extension of the validity period shall be granted until three months after the end of the state of public health emergency.   Finally, in case of authorizations issued between 12 March 2020 and one month after the end of the state of public health emergency: their validity period will only start to run from the expiry of a period of one month after the end of the state of emergency.   [bloc_invitation lien=""] Works in progress: even if nothing obliges them to do so, the vast majority of the construction sites are stopped since March 17th. On 21 March, an agreement was signed between the government and the building and public works sector professional bodies with the aim of continuing the works. Bruno Le Maire, Minister, stated that the continuation of the works must necessarily come along with a protocol laying down "strict rules" on health matters such as barrier measures and keeping a distance between employees. Apart a few exceptions, the deadlines imposed by the Administration for carrying out inspections and work are also suspended until the end of a one-month period from the date of the end of the state of health emergency, i.e. in principle on 25 June next. [/bloc_invitation]  

2. Amendments to the CR 2017 decree

  The period of state of emergency does not prevent the publication of the new texts and a decree published on 1st April 2020 modifies the provisions of the decree of 6 May 2017 setting the conditions for benefiting from a Feed-in-Premium PPA for electricity produced by a wind farm, up to a maximum of six wind turbines. This text, eagerly awaited by actors of the sector, implements the following changes:  
  • Derogations from the minimum distance rule of 1,500 meters:
    • If the project companies are completely independent of each other and if the facilities have not been jointly developed [2] ;
    • For reasons related to the grid connection capacities, when the facilities less than 1,500m apart constitute a set of wind turbines consisting of a maximum of two installations and a maximum of six wind turbines. The derogation must be formulated and justified to EDF with a document issued by the competent grid operator and signed by the legal representatives of the two facilities.
  • Clarification on the condition of the novelty of the facility: are eligible for the 2017-CFD new installations which are deemed to be new if their main components are new on the day of commissioning. The novelty is assessed on the day of the first financial-mechanism support application made (2016-CFD PPA request or the feed-in tariff PPA request under the decree dated 17 June 2014).
  • Finally, the rule prohibiting double financial aid is included in the decree: producers must now attach to their file a declaration on their honor that the installation will not receive support from other aid schemes, whether local, regional, national or European Union.

3. Power grids and natural gas grids

  In order to ensure the security of electricity and natural gas supply while protecting their employees, the grid operators were forced to organize themselves, with a dual challenge: to limit the spread of the covid-19 epidemic in the country by implementing barrier measures and limiting travels and physical contacts, and to ensure the continuity of the power system's operation. They therefore set up activity continuity plans:  
  • Enedis is in minimum service since 16 March, and only carries out operations that are strictly necessary for "the safety of people and property, and to maintain the continuity of the electricity supply".
    • Electrical connection operations carried out by Enedis by appointments are suspended.
    • During this period, producers may submit connection requests on the website. However, the time taken to process studies and estimates will be extended.
  • GRT Gaz has also set up an Activity Continuity Plan to guarantee the availability and safety of its facilities in order to preserve the country's gas supply.
  • GRDF[3] states that it is focusing on "the essential missions of gas distribution".

4. Freezing of feed-in tariffs for photovoltaic electricity

  By decree published on last 31 March, the provisions of the tariff order of 9 May 2017, which sets the conditions for purchasing electricity produced by photovoltaic facilities installed on buildings with a power less than or equal to 100 kilowatts, are modified and the level of the purchase tariff for electricity produced by the following facilities is frozen for 3 months:
  • Facilities with an installed peak power less or equal to 100 kilowatts;
  • For which a complete connection application has been submitted to the grid operator between 1 April 2020 and 30 June 2020.
  Why such a text? The recitals of the decree of 30 March 2020 give this explanation. They specify that the measures put in place by the Government to limit the spread of the virus have consequences on the finalization of purchase contract requests made by project owners of renewable electricity production facilities, particularly solar photovoltaic facilities. Consequently, the regulatory authority considers it necessary to take economic measures to respond to these impacts, in particular by freezing the level of feed-in tariffs for the electricity produced.  

5. New tendering calendar from the Energy Regulatory Board (“CRE”)

Sectors Deadline for submission of tenders
Previous date New date
Ground-based solar PV 3 July 2020 1/3 of the volume: 3 July 2020 2/3 of the volume: 3 November 2020
Solar PV Haut-Rhin 31 July 2020 30 September 2020
Onshore wind 1 July 2020 1/3 of the volume: 1 July 2020 2/3 of the volume: 1 November 2020
Building-mounted solar PV 6 July 2020 6 September 2020
Innovating solar PV 3 April 2020 3 June 2020
Solar PV in non-interconnected territories 12 June 2020 12 August 2020
Self-consumption 18 May 2020 18 July 2020
Small Hydropower Projects 31 March 2020 30 May 2020

6.  Facilities completion times and litigations management

  The current situation will evidently also impact the completion times of ENR facilities under construction, which are currently under construction or were scheduled to begin during the period of the health emergency. Such delays may have financial consequences for project developers.   During a meeting held on 1 April 2020, the Minister for Ecological and Solidarity Transition announced that additional flat-rate completion deadlines would be introduced.   In a press release, the ministry states that it is committed "to the commissioning of renewable energy facilities. Additional delays will be granted in order not to penalize for delays related to the crisis. For each of the sectors, a fixed deadline will be defined in order to adapt as well as possible to each situation encountered when the public health situation is stabilized”.   Attention should therefore be paid in the coming days or weeks to the publication of a regulatory or textual confirmation of this extension of the deadlines, which would be welcomed by many producers.     [bloc_invitation lien=""] Ongoing litigation: Ongoing litigation, except for urgent litigation, is suspended as most jurisdictions are closed. Warning! The deadlines for appealing against administrative decisions are extended by two months from the expiry of a period of one month following the end of the state of health emergency. So, the deadlines for appealing against decisions such as town planning and environmental authorizations are extended. [/bloc_invitation]   [1] Article 7 de l’ordonnance n°2020-306 du 25 mars 2020 relative à la prorogation des délais échus pendant la période d’urgence sanitaire et à l’adaptation des procédures pendant cette même période [2] Article 3 de l’arrêté du 6 novembre 2017 dans sa version applicable à compter du 2 avril 2020 [3]     [interne id="43405"] [interne id="43600"] [interne id="108181"]  
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