There is an image that sums up our times: reservoirs covered in solar panels floating like technological water lilies. It was the Government’s great bet to squeeze clean energy without consuming soil. However, that landscape has just collided head-on with the Supreme Court. According to the national climate roadmapBy 2030, Spain has to achieve a renewable penetration of 42% in final energy consumption and 74% in electricity generation. Swamp water, free of conflict over agricultural or forest land use, seemed the ideal setting. But the legislative rush has truncated the plan.
The Supreme Court agrees with Aragón. The Fifth Section of the Contentious-Administrative Chamber of the Supreme Court has declared null Royal Decree 662/2024, of July 9. It has done so by upholding an appeal filed by the Autonomous Community of Aragon.
The ruling annuls the regulations by operation of law and condemns the State to pay the procedural costs. The Aragonese regional executive had full legitimacy to appeal, since, as the court confirmed, the execution of this decree directly affected its powers in territorial planning, the environment, tourism and hydroelectric development.
But what did it consist of? Published in the Official State Gazettethe objective of the text was to develop the regime to which the installation of these plants in state-managed reservoirs should be subject. The preamble of the standard strongly defended the technology, ensuring that these systems have better energy performance due to the cooling effect of water, reduce evaporation by casting shade, and slow down the growth of phytoplankton in waters at risk of eutrophication.
To put order in this deployment, the Government articulated a strict system of temporary concessions that limited the exploitation of the plants to a maximum of 25 years, including extensions. The regulatory text also imposed space limits according to the ecological state of the waters. Likewise, the conditions required the promoters to provide a provisional bond of 4,000 euros per megawatt (MW) installed only for the application – which became up to 12,000 euros per MW to respond for damage to the public domain -, all conditional on the presentation of environmental studies, monitoring of invasive species and a continuous monitoring program to evaluate water quality.
The legal stumbling block: legislating without asking. The central problem was not the content of the norm, but how it was approved. The Government omitted the process of prior public consultation with affected citizens and groups. This is a procedure that the ruling considers inexcusable, and its omission has been the nail in the coffin of the decree.
The State tried to justify this legal shortcut in the courts with two arguments that the Supreme Court has dismantled. Firstly, the State Attorney’s Office alleged that there was an extraordinary situation of public interest due to the increase in energy prices due to the war in Ukraine. The High Court rejected this premise, recalling its own doctrine: to skip public consultation, it is not enough that there is urgency; the rule must also be of a purely organizational or budgetary nature, something that does not happen in this case.
Secondly, the Government tried to rely on an “urgent processing” route. The response of the magistrates It was forceful.: “In this case, the aforementioned procedure cannot be dispensed with because there is no declaration of urgency nor was the procedure developed on that legal basis.” There was no agreement from the Council of Ministers that supported the rush; therefore, the shortcut was illegal.
Why it matters: form, not substance. There is a crucial nuance that changes the reading of this news. The Supreme Court has not ruled that putting solar panels on water is a bad idea or that it is harmful. In fact, it rejected the rest of the complaints presented by Aragón, resolving that the text did not violate the principles of good regulation or legal certainty.
We are facing what jurists call a formal procedural defect. The law falls only because the Government did not listen to the parties involved before acting. It is especially ironic that the Council of State itself I would have already warned to the Executive during the draft phase that this matter was going to need, in the medium term, a much more complete and systematic regulation.
And now what? The renewable energy sector, which saw floating platforms as an unbeatable alternative to avoid the controversy over the consumption of agricultural land, is left in limbo. All the regulations of the decree disappear, including the modification of the Regulation of the Public Hydraulic Domain of 1986 that articulated these concessions. Meanwhile, in the affected territories, caution is already a reality. The Ebro Hydrographic Confederation, for example, had previously vetoed the installation of these floating plants in the Cinca swamps.
The legal basis that allows these facilities continues to exist in the Water Law. What has fallen is the regulatory development, so the Government can go back to square one and draft a new regulation. But he will have to do it by scrupulously complying with the steps that he ignored this time. It has been shown that the rush in the energy transition has a high legal cost. The decree that was going to order solar panels on water has been shipwrecked. For not having listened before.
Image | RawPixel
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