On September 18, 2015, the six ministries and commissions including the National Development and Reform Commission issued the "Opinions on Supporting the Development of New Industries and New Industries to Promote Public Innovation and Use of Land for People's Livelihoods," and clearly put forward the use of unutilized land such as Gobi, deserts and desert grasslands for projects such as photovoltaic and wind power generation. For those who do not occupy land and do not change the form of the land surface, they can be identified according to the type of land. If the land use is not changed, it can be obtained through leasing or other means.
The promulgation of this opinion has solved the problem of the inconsistency between the method of land use for photovoltaic power plant projects and the state land management requirements to a certain extent. It is a major favorable policy for photovoltaic power generation (especially for large ground power stations) in recent years.
However, due to the current dual management status of China's land and forestry departments, and the fact that local governments have used unclaimed land and other unutilized land to obtain national policy subsidies, they have been classified as "planned forest lands," "forestry lands," and "returning farmland to forest lands." The original ridiculous land could not be used for lease because it was covered with woodland coats.
Even after the introduction of the New Deal, this type of land was still excluded from the use of photovoltaic power plant project land. The author is concerned that this issue has caused concern in the forestry sector. The State Forestry Administration organized experts from the Chinese Academy of Forestry to form three research groups to investigate the use of forest land in photovoltaic power plant construction projects. Its purpose is to properly handle the relationship between ecological construction and clean energy development. In this article, Lawyer Jiang Xiaojie, who is responsible for the construction of the solar energy project, plans to comb the problems of the photovoltaic power plant project in relation to the forest land and analyze it briefly to share with you.
Note: This article is mainly focused on the use of forest land for large-scale ground-based photovoltaic power plants.
I. Perplexity of Photovoltaic Power Generation Enterprises on the Problem of "Land-related Forests" for Project Land Use
The business is puzzled: We have verified the land sector, and the project land is unused land (site inspection is indeed wasteland). However, why was the forestry department informed the project land as "forest land" afterwards, it is necessary to go through the corresponding forest land examination and approval procedures; otherwise, no development or construction is allowed. .
Cases of illegal land use:
On December 25, 2013, the State Forestry Administration notified the 100 MW grid-connected photovoltaic power generation project in Heqingtan, Yongchang County, Gansu Province to severely illegally occupy forest land. Since 5th of 2012, the project has not gone through the formalities for approval (accumulation) of land acquisition and acquisition. In Yongchang County, illegally occupied 62.9534 hectares of state-level public welfare forest land. The entity responsible for the violation of the law is Zhejiang Zhengtai New Energy Development Co., Ltd.
For this incident, the responsible director of the State Forestry Administration stated that the State Forestry Administration will supervise and supervise the rectification of serious illegal use of forest land projects. In counties where the management of forest land is serious and the reforms are not in place, the qualifications for the use of the national forest land reserve quota in the provinces will be eliminated, and the review and approval of the land acquisition and forest land acquisition projects of the city (state or state) will be suspended.
In the process of development and construction of ground-based photovoltaic power plants, the dual management of land by forestry and national land departments poses a hidden danger for the development of photovoltaic power plants. In 2013, the State issued the “Some Opinions on Promoting the Healthy Development of the Photovoltaic Industry†(Guofa (2013) No. 24, hereinafter referred to as “No. 24 Documentâ€), which clearly stipulates “the use of photovoltaics for the use of unutilized land such as wasteland on the neighbors. Power generation projects are moderately inclined in land planning and planning arrangements."
On September 18, 2015, the six ministries and commissions including the National Development and Reform Commission issued the “Opinions on Supporting the Development of New Industries and New Formats and Promoting Popular Innovation of People’s Land for Innovation†(Ministry of Land and Resources (2015) No. 5, hereinafter referred to as “No. 5 Documentâ€), clearly proposing For non-utilized land such as gobi, desert, and uncultivated land used for photovoltaic, wind power and other projects, the part of the land that does not occupy land pressure and does not change the form of land surface can be identified by the original land category. If the land use is not changed, lease is allowed. In other ways, the two parties sign a good compensation agreement and the land is reported to the local county-level land resources department for the record; for the part of the project's permanent construction land, the construction land should be handled according to law. For the construction of occupation of agricultural land, all land use shall be managed according to construction land.
However, in practice, the national land department and the forestry department have different standards for determining the nature of land, and related databases are not networked, resulting in some items being classified as “unused land†or “wasteland†in the planning of the national land department. In the planning of the forestry sector, it has become "planned forest land" or "forestry land", which has made it difficult to use land, the cost has increased sharply, and the policy has not been implemented. This has brought serious obstacles to the development and construction of photovoltaic power plants. Although many PV projects have already obtained project approval procedures, due to the “forest-related†problem of using the wasteland in the project, it has been unable to start construction, and it even eventually landed.
II. Analysis of the legal risk of "forest-related" issues for the project land of photovoltaic power generation enterprises
Forest land belongs to the type of land with strict regulatory requirements in China and complex approval procedures/processes. For photovoltaic projects, even if they can handle the land use formalities according to "points", there is still great difficulty in the approval of land acquisition for forest land. According to the provisions of China's forest law and its implementation regulations, the use of forest land must be changed in accordance with the relevant examination and approval procedures; in addition, for the cutting of forest land, it is necessary to apply for a cutting license.
If the construction unit fails to complete the examination and approval of the forest land or obtain the cutting permission as required, it will be subject to administrative penalties by the forestry authorities, and serious construction units and related responsible personnel may also be investigated for criminal liability.
Administrative responsibility:
Unauthorized change of forest land use
Without the approval of the competent forestry authorities of the people’s governments above the county level, and changing the use of forest lands without authorization, the competent forestry authorities of the people’s governments at or above the county level shall order them to return to their original status within a time limit and impose a fine of between 10 yuan and 30 yuan per square meter for illegally changing the use of forest land. Temporary occupation of forest land, if it is not returned within the time limit, shall be punished in accordance with the provisions of the preceding paragraph.
Deforestation
If the forest is deforested or other trees are less than 2 cubic meters or the saplings are less than 50, the competent forestry department of the people's government at or above the county level shall order the replanting of trees that are 5 times the number of trees to be exterminated, and the deforestation value shall be 2 Double to 3 times fine. If the forest is deforested or other trees are calculated to be more than 2 cubic meters or 50 or more saplings, the competent department of forestry of the people's government at or above the county level shall order replanting of trees that are 5 times more than the number of trees to be exterminated, and deforestation should be carried out. Times up to 5 times fine. If forests or other trees are cut beyond the timber production plan, they shall be punished in accordance with the preceding two paragraphs.
Criminal Liability: Deforestation
According to the "Forest Law", if illegal logging or deforestation or other forestry constitutes a crime, criminal responsibility shall be investigated according to law. According to the Interpretation of the Supreme People’s Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Destruction of Forest Resources, the forest cutting licenses have not been approved and issued by the forestry administrative department and other competent authorities as prescribed by the law, or forest logging has been carried out. The permit, but in violation of the time, quantity, tree species, or method specified in the forest cutting permit, and arbitrarily harvest the forest or other forest owned by or owned by the unit;
Excavation of forests or other forests owned by others in excess of the number of forest cutting licenses shall be considered as a crime of deforestation. Among them, deforestation is “largerâ€, starting from 10 to 20 cubic meters or 500 to 1,000 saplings; the deforestation “is huge†with 50 to 100 cubic meters or sapling II. Five hundred to five thousand plants are the starting point.
III. Suggestions for the preliminary work of photovoltaic project development
According to the author's experience in participating in legal services for new energy projects in recent years, the new energy road is not a magnanimous road, but is a bumpy road that is always full of thorns but can always face the sun. In the process of traveling, not only the pioneers and entrepreneurs need to have a correct grasp of the direction of the national policy, but also need to carry out detailed and solid issues on key issues such as the acquisition of project supporting documents, project land use, and nuclear preparation procedures in the early stage of project construction. The work to avoid the discovery of subversive issues late in the project has caused the project to be blocked or even failed.
The author proposes the following suggestions for the preliminary work of the photovoltaic project land for reference by the project developer.
(1) The project site should strictly abide by the relevant laws and regulations and try to avoid sensitive areas such as forest land. If it is planned to invest in photovoltaic projects within the area where the development projects are strictly limited, before the relevant development barriers are cleared, it is necessary to prohibit construction investment and prudently control the investment of other (large) funds.
(2) Pay attention to the depth of the feasibility study report of the project. It is suggested that authoritative professional organizations that are relatively familiar with the local situation should carry out feasibility studies. In addition, when the feasibility study report review meeting is convened, relevant government authorities should be invited to participate and consult widely the various departments. In addition to ensuring that the feasibility study results can meet the needs of project development and filing, they can actually and effectively guide follow-up project construction.
(3) If there is a major adjustment to the site selection, it is necessary to re-submit the land pre-trial. Otherwise, the project land will not be able to obtain legal land use rights.
(4) The “No.5 Document†jointly issued by six ministries and commissions such as the National Development and Reform Commission recently clarified from the national policy level that for photovoltaic, wind power projects occupying unutilized land such as Gobi, deserts, and desert grasslands, it is allowed to acquire by rent-combination. Land use.
When applying this policy, the construction subject must pay attention to the following conditions and requirements:
1. Ensure that the nature of the project site is "unused land such as Gobi, desert, and desert grassland"; if the project is land of other nature, it will not be able to use the land preferential policy;
2. The land rights holders must be clarified. The construction subject should pay attention to signing land lease compensation agreements with the rightful subjects, and the aforementioned land acquisition activities must also be reported to the local county-level land and resources department for the record;
3. For the part of the project's permanent construction land, the main body of the construction shall still handle the land use formalities according to the law.
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