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Journal of Energy & Natural Resources Law Volume 6, 1988 - Issue 3
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Original Articles

The Nuclear Referenda in Italy and their Consequences

Leigh Hancher Senior Research Fellow, International Institute of Energy Law, University of Leiden. The author would like to thank Dr. F. Nocera of the ENEA/DISP for his kind assistance in the preparation of this article.
Pages 137-153 | Published online: 08 Jun 2015

  • There were in fact three separate referenda on issues relating to nuclear energy and two relating to the independence of the judiciary.
  • These figures are taken from ENEL's submission to the National Energy Conference, held in Rome, February 1987.
  • See text of the deliberations of the CIPE on the National Energy Plan, December 4,1981, reproduced in G. Gentile, Lezioni di Diritto dell'Energia (Milano, 1987).
  • Law no. 685 of July 27,1967. See further G. Guarino, Scritti di diritto pubblico dell'economia, II serie, (Milano, 1970).
  • For a summary of the so-called Donat-Cattin Plan, see Petroleum Economist, November 1975, p. 414.
  • For a discussion of the legal and institutional nature of the PEN, see V. Rossi, “La Programmazione Energetica” in G. Gentile, supra, n. 3, pp. 107–132, at p. 118.
  • For an assessment of the first PEN see N. J. D. Lucas and D. M. Lucas “The Influence of Institutional Relationships on Italian Energy Policy,” (1980), 16 International Relations 889–924.
  • See V. Rossi, supra, n. 6.
  • The text of the CIPE's deliberations may be found in G. Gentile, supra n. 3, pp. 327–341.
  • IEA, Energy Policies and Programmes of IEA Countries: 1985 Review (Paris, 1986), at p. 312.
  • Construction planned or in progress in 1987 was as follows:
  • 6under construction:
  • Brindisi sud (4 units of 640M)
  • Fiumesanto (2 units of 300MW)
  • sites approved:
  • Gioia Tauro (4 units of 640MW)
  • Tavazzano (2 units of 300MW)
  • Pietrafitta (2 units of 75MW)
  • Gela (4 units of 300MW)
  • For a detailed assessment of the “positive” and “negative” achievements of the 1981 PEN see CIPE Testo dell'aggiornamento 1985–87 del PEN (1986), reproduced in G. Gentile, supra, n. 3 at pp. 342–368.
  • The nationalised utility was created by Law no. 1642 of December 3,1964.
  • ENEA was set up under Law no. 82 of March 5, 1982 which reorganised the National Commission for Nuclear Energy (CNEN).
  • Article 38, P.D. 185 and Article 5 of Law no. 393.
  • Law no. 880 of December 18,1973.
  • Article 2, Law no. 393.
  • DPR no. 178, January 15,1972.
  • Law no. 393 of August 2,1975.
  • A useful flow chart describing the main stages of the site, construction and operating licensing procedure can be found in OECD, Licensing Systems and Inspection of Nuclear Installations (Paris, 1986) at p. 61.
  • Article 2(1) of Law no. 393.
  • Law no. 85 of March 22, 1982 provides that the DISP is relatively autonomous from the ENEA. Its director is nominated by the Minister of Industry and reports directly to the Minister.
  • Article 2(3) of Law no. 393.
  • See G. Caia and F. Roversi-Monaco, “Le realizzazione delle centrale elettronucleare tra disciplina vigliente e attivazione del piano energetico nazionale” Le Regioni, 1983, pp. 563–599.
  • Article 42 of P.D. no. 185.
  • Articles 39 and 50 of P.D. no. 185.
  • Article 51.
  • Article 44.
  • Article 45.
  • F. Roversi-Monaco, “Localizzazione e Costruizione di Centrali per la Produzione di Energia Elettrica. Procedimenti Amministrativi e Possibilità de lore Semplificazione” in Ross. Cuir, energia elettrica, Energia e Territorio (Milano, 1986) pp. 61–85.
  • Although Article 81 of D.P.R. no. 616 of July 24, 1977 provides that ENEL is exempted from the requirement to obtain local planning permission and building permits (see T.A.R. Piemonte, Sentenza of September 25, 1984 in Le Regionali, 1984, part 1, p. 3352) T.A.R. Lazio Sentenze no. 936, October 22, 1984 in Foro Amministrativo, 1985, p. 212) it would seem that the local councils retain certain powers to ensure that the conditions enumerated in the decree nihil obstat, in so far as they relate to construction of the plant, are complied with.
  • Law no. 833 of December 23, 1978 setting up the national health service, and DPR no. 547 of April 27,1955 on the regulation of health and safety at work.
  • See Law no. 393, Article 22 and Decreto Ministeriale VII/76 (unpublished).
  • Decreto Ministeriale VII/92, of 19.2.79 (unpublished).
  • T.A.R. Lazio, ord. 3 agosto, 1977, no. 12 in Ross. Guir. ENEL (1978) p. 111.
  • T.A.R. Lazio, sentenza no. 876, September 16, 1982, in Ross. Cuir. ENEL (1982) p. 510 and Il Foro Amministrativo, part 1, (1983) p. 745.
  • Paragraph 13 of the single section of Law no. 8 of January 10,1983.
  • See G. Gaia, La Tendenza regionale all'allargamento delle competenze in campo energetico, in Roversi Monaco, ed. Aspetti Guridico-Istituzionali ed Economici dei Problemi Energetici, (Bologna, 1982).
  • Final paragraph of the single section of Law no. 8 of 1983.
  • For a description of ENEL's present approach to information provision, see Annex 2.1.2 of its submissions to the National Energy Conference, Rome, February 24–27, 1987 (Roma, 1987).
  • See Cons. Stato, sentenza no. 905, Sez. VI. December 22, 1983 in Ross. guir. ENEL., (1983) p. 460.
  • Cons. Stato, sentenza no. 731, Sez. VI, December 19, 1986, Foro Italiano 1986, III, p. 441,et seq.
  • T.A.R. sentenza no. 876, 1982, supra n. 36.
  • Law no. 393 of 1975.
  • These limitations were established to prevent the recourse to the instrument of referendum for corporatist ends and to avoid the submission to the electorate of complex laws or laws which involve international obligations.
  • Law no. 1 of March 11, 1953.
  • Sentenza n. 31 of February 13, 1981, annotated in Ross. Giur. ENEL (1981) pp. 23–27.
  • If Parliament subsequently decided to abolish Law no. 393 of 1975, the constitutionality of any such proposals in terms of their compatibility with European law would be subject to Article 11 of the Constitution. For a detailed analysis of the 1981 Decision see S. Pomodoro, “La recente decisione della Corte Constitutionale relativa alla inadmissibilità del referendum per le centrali nucleari” in Centro Italiano di Studi di Diritto dell'Energia Nucleare, Atti del Convegno su problemi attuali di diritto communitario e internazionale nel campo dell'energia nucleare, Roma, March 19,1981.
  • This paragraph, it will be recalled, replaced Article 2(2) of Law 393.
  • The Law of 1973 in fact modified Article 1(7) of Law no. 1643 of December 6, 1962.
  • This body was created in 1970 by Law no. 352.
  • In accordance with Article 13 of Law no. 352 of May 25, 1970.
  • Sentenza no. 25, January 16, 1987, Gaz. Uff., serie speciale n. 7, February 11, 1987.
  • Council Resolution of November 20 concerning the mutual exchange of information at Community level on the siting of power stations. O.J. 1978, C286/1.
  • C. Sartorelli, “The Nuclear Referenda in Italy” in Nuclear Law Bulletin, 1987, nr 40, pp. 88–98.
  • Law no. 332 of August 7, 1987.
  • The Constitution provides that at least 50 per cent, of the electorate must participate in the referenda for the result to be valid. In some regions the percentage of the vote was lower than the required minimum.
  • D.P.R. no. 498 of December 9, 1987 in Gazz. Uff. no. 287 December 9, 1987.
  • The following paragraphs reflect specialist legal advice given to ENEL and communicated privately to the author.
  • Para. 4 reads as follows: “If an agreement [between the competent State administration and the interested regions] is not reached within 90 days on the general design and execution of public works and as to their siting, the Council of Ministers may proceed, having heard the views of the Interparliamentary Commission on Regional Affairs, to reach its own decision which is effected by a decree of President of the Republic.”
  • As defined by Article 3 of Law no. 1643 of 1962 establishing ENEL.
  • That is from December 10, 1987.
  • NERSA—Centrale Nucleaire Europeene a Neutrons Rapides: SBK—Scnellbruter Kernkraftwerde.
  • Its legal powers under the 1962 Law remain.
  • Resoconto Sommario, Dicembre 17, 1987, no. 65, pp. 11–13.
  • For a description of the work of the IAEA and the OSART reviews see Reyners and Lel-louche, “The Role of the International Agencies in the Event of a Nuclear Accident” in Cameron, Hancher and Kuhn, Nuclear Law after Chernobyl, Graham and Trotman, forthcoming.
  • Paese Sera, February 10, 1988.
  • This ordinance is the subject of a challenge by ENEL in the local administrative courts. In the first stage of the proceedings the local T.A.R. has agreed to suspend but not entirely revoke the Ordinance. La Repubblica, April 6, 1988.
  • Council Directive 85/337/EEC of June 27, 1985, O.J. 1985 L175/40.
  • Article 4.
  • See for example the text of the deliberations of the CIPE on the 1981 PEN and on the 1986 Review, supra.
  • La Repubblica, December 5, 1987.
  • EC Commission Directive 82/501 of June 24, 1982. O.J. 1982, L230/1. The deadline for compliance was January 8, 1984.
  • Schema di decreto del Presidente della Repubblica, January 27, 1988.
  • Proposta di Legge no. 2812, April 17, 1985.
  • Article 6 of Law no. 349 of July 15, 1986, establishing the Ministry of the Environment.
  • See most recently the Parliamentary Resolution of December 17, 1987, supra, n. 65.
  • See Energia e Materie Prime, Nov-Dec, 1987.

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