There is an almost unanimous opinion in this country about the need for an ecological transition towards the generation of energy with renewable sources. However, many question whether, in the current circumstances of market liberalization, it is justified and essential to maintain in the sectoral legislation the right of forced expropriation of land or the concession of the use of public domain forest for any renewable installation. , for the benefit of private wind and solar companies. The reality is that discontent is growing in our rural areas; when the experience of other countries, such as Germany, shows that expropriation is not necessary for the development of a robust and socially inclusive renewable energy sector.
In Spain, protests by farmers are becoming more and more frequent, discovering that renewable energy companies have included their farms without their consent in the authorization requests for their wind and photovoltaic installation projects, and that they are later immersed in a procedure expropriation, or forced to accept unfavorable land lease or purchase contracts, under the threat of expropriation. In the last year alone, 250 requests for a declaration of public utility, a requirement prior to expropriation, for wind and photovoltaic energy generation projects have been published in the Official State Gazette.
In Germany, up to now, electricity legislation does not directly admit expropriation for projects other than those for the construction of the transmission network. For the rest of the electricity supply projects, an additional determination of the admissibility of the expropriation is required. De facto, the expropriation of farmers’ land in favor of private photovoltaic and wind generation companies has so far been practically impossible (although there is strong pressure from the business sector for this to change in wind energy), for one compelling reason: Generating plants can be installed on many different sites, as a German expert from the Fraunhofer Institute for Solar Energy Systems ISE explains. This does not mean that the renewable energy sector ceases to be one of the most powerful and inclusive in Europe: renewable sources satisfied 41% of the electricity demand in 2021 and almost half of the projects belonged to the “people themselves”. ”.
The generation of wind and photovoltaic energy are superficially very extensive activities, which will occupy an important part of the territory. Red Eléctrica Española reports that, as of January 31, 2022, it has granted new connection permits for photovoltaic and wind power plants that triple the Government’s growth forecasts for 2030. As a guideline, this means that the deployment of all photovoltaic plants and wind, old and new, can occupy approximately 4.3% (21,983 km2) of the total surface of Spain. Placing ourselves in the rural context, renewables can occupy the equivalent of 10% of the farmland and pastures in Spain. In some provinces the occupation of agricultural land can be much higher. For example, according to the Delegation of the Government of Granada, it is expected that a million olive trees will be uprooted to occupy the land with photovoltaic panels.
Most of these lands have been or are privately owned by farmers, communal pastures and public domain forest. Well, by virtue of article 54 of Law 24/2013, of December 26, on the Electricity Sector, they could be expropriated to install renewable plants. This article “declares electrical installations for generation, transmission… to be of public utility for the purposes of forced expropriation of the goods and rights necessary for their establishment and the imposition and exercise of right of way”. In short, the public utility of all wind and photovoltaic generation facilities is declared generically, and the recognition of this utility has the effect of expropriating or, at least, implicitly implies the need for urgent occupation of all the farms that are going to be used for the generation of renewable energy, as indicated in article 56 of the same law.
Although the electricity and forced expropriation legislation offers some guarantees to those affected (public information procedures, allegations… ), the truth is that the majority of rural owners are in a situation of almost total defenselessness against renewable companies. These may include the farms that they consider appropriate in their application for the pertinent administrative authorizations for a wind farm or photovoltaic plant project. And, in that same act they can request the declaration of public utility of the project. A positive resolution of the public utility implies the right to immediately occupy the private estates, which the companies can acquire by mutual agreement with their owners or through an expropriation procedure. In their case, it also implies the right to be granted authorization to occupy public land. In the event of expropriation, the fair value is determined according to the agricultural value of the land, without considering the capital gains that power generation may create. Finally, the owners lose the right to revert, or to recover their expropriated land, once 10 years have passed, even if the companies that benefit from the expropriation dedicate the land to other uses.
It is noteworthy that, since the pre-constitutional period, specifically since 1954, the benefit of the expropriation of assets has been a privilege of the electricity industry. So, it was justified because the electricity sector was declared an “industry of national interest”. The Spanish Constitution of 1978 states that private property can only be deprived of property for “justified” cause of social interest or public utility. Now, the electricity sector law of 2013 qualifies electricity supply as a “service of general economic interest”.
According to the European Commission, “Services of General Economic Interest are economic activities that produce results in the general public good, which would not be provided (or would be provided under different conditions…) by the market without public intervention. The public service obligation is imposed on the provider, by way of entrustment and on the basis of a criterion of general interest, which ensures that the service is provided in conditions that allow it to fulfill its mission.
According to this definition, it does not seem that the expropriation of land and the concession of the use of public domain forest for renewable energy installations is a public intervention that is neither justified nor necessary to maintain the electricity supply. First, because the use is expropriated or granted for the benefit of private companies in a liberalized activity, not subject to binding planning, and whose only public service obligation is to keep the generation facility in operation, if they are not given permission to close it. Second, because wind and photovoltaic generation facilities are viable and efficient on a small scale and have few synergies with each other; thus their individual effect on supply may be insignificant. It is not like the electric transport network, which is a natural monopoly. Therefore, it is most efficient for there to be a single sharing network. Hence, its development is subject to binding government planning and enjoys the privilege of right of way. And, finally, because the occupation of the assets is not necessary: a wind farm and a photovoltaic plant can be installed in many different places (they are not a mine) and, therefore, the occupation of a particular property is not essential. .
Recently, the German government has justified the extraordinary public interest in renewable installations because they contribute to climate protection. This justification, which we will hear more and more often, should not be related to land property rights, which are another matter; especially when the production of renewables on land has an environmental impact that solar panels on the empty roofs of our buildings do not have, even if they produce at higher costs.
In short, the expropriation right for renewable energy generation facilities is causing unfair situations. Given this, the initiatives of the Ministry and other administrations to increase social acceptance and local participation in renewable energy projects can be described as palliative remedies, when legislation is maintained that allows renewable companies to monopolize the natural resources of farmers. and neighbors.
Indeed, one of the most effective measures to increase social inclusion in the development process of renewables is to exclude wind and photovoltaic power generation facilities from the declaration of public utility of the electricity sector law. Thus, keeping the land in their hands, rural owners and local administrations can freely decide if they are interested in participating in the renewables business, if they transfer the land or simply continue as they are. Everything will depend on the offers they make.