Equity and Access: Energy Law and Policy Must Adapt With Changes in Technology

Energy law and policy in developing countries are due for a change. With the increasing availability of electricity produced through micro-generation, countries need to amend their energy law and policy to remove government front control and encourage a move to the private market. The move will have two benefits: (1) encourage further development and access to energy and (2) decrease the effect of government corruption on energy availability.

Micro-generation, the process of collecting energy utilized by a microgrid or mini-grids, operates on a system that may connect to a larger grid or operate locally. Further, the power source for micro-generation may be generators, batteries, renewable resources, such as solar panels, or a combination of such energy sources. The benefits of micro-generation include cost savings, localized utilization of resources, and increased energy independence. It can also include access to electricity for rural communities not connected to a grid. Specifically, Niger, a sub-Saharan country with vast renewable energy potential, is a prime example of a developing country in need of increased privatization.

Professor Kelley has personal experience with micro-generation of electric power in Niger. From 1986 to 1988, he served as a Peace Corps volunteer in a  rural village there. In those days, the nearest electricity was 60 kilometers away in Niger’s capital city, Niamey, which meant the village went dark when the sun went down. To point out one consequence, village children could not read after dark, much less plug in a personal computer or any other advanced educational technology. Because Niger lacked the financial wherewithal to extend electric lines to rural areas, the village’s power prospects were dim. However, with the advent of micro-generation, things began to change.

Professor Kelley has continued to visit the village over the past 35 years, often to perform research on customary law. Beginning in the early 2000s, he observed a startling new development: villagers were beginning to install solar panels on the roofs of their grass huts and mud houses. Niger is one of the hottest, sunniest countries on the planet, and with the electricity villagers harvested from the sun, they were able to power electric lights and small appliances. In effect, by deploying small, inexpensive, mostly Chinese manufactured solar panels, they succeeded – at least on a small scale – in leapfrogging over the problem of Niger’s lack of electricity infrastructure. If Niger would amend its legal and regulatory system to encourage micro-generation of solar energy, it is conceivable that places like Professor Kelley’s Peace Corps village would be able to install a village-wide solar electricity system that could provide reliable power so that, among other benefits, the village children could read at night and access to knowledge from the wider world.              

In 2015, the United Nations (UN) Department of Economic and Social Affairs issued seventeen goals for sustainable development, which all Member States subsequently adopted. Sustainable Development Goal 7 (SDG 7) aims to ensure access to affordable, reliable, and modern energy for all. Further, in 2021, the United Nations issued eight priority recommendations to accomplish SDG 7’s goals. Recommendation two aims to improve social equity and inclusiveness by implementing a sustainable energy transition strategy. Additionally, recommendation two urges an expanded role of the private sector and increased entrepreneurship to promote energy access. Micro-generation and amendments to energy law and policy to encourage privatization directly support SDG 7’s goals.

The Energy Progress Report, which tracks SDG 7 progress, paints a picture of Niger as a country with vast renewable energy potential but with low accessibility. Current figures have Niger’s renewable energy consumption at seventy-eight percent of total consumption, but with low accessibility at a mere nineteen percent of the population with access to electricity. For comparison, the United States has a one-hundred percent electricity access rate but has a mere ten percent of total consumption coming from renewable energy.  

Energy law and policy is a mix of different levels of implementation, from international to municipal (Yinka, Section III. The Role of Law). For example, the UN promotes SGD 7 goals at the international level, which member states subsequently adopt. However, for implementation, this takes changes in law and policy at the national, regional, and local levels.

Niger’s government owns the Nigerien Electricity Society (NIGELEC), which is the primary energy supplier for Nigeriens and operates four power plants. While private companies are not excluded in Niger’s energy production, Niger’s current law and policy provide a less than welcoming operating environment (Section 4.3 Policy and Regulatory Environment for Mini-Grids). Current barriers to further privatization include the absence of public-private partnerships, no tax advantages for mini-grid developers, and the lack of regulatory framework for grid takeovers if the State’s grid is expanded and incorporates areas where mini-grids are implemented. Niger’s energy law and policies taken together do not provide adequate insurances against risks for the private market and entrepreneurs, who SDG 7 recommends be included in energy sector development, and act as a red tap barrier. This is an example of where international law is aspirational, but state and local level energy law and policy must adapt to support such a framework.

Micro-generation stands to literally bring power to people that have been forgotten by government infrastructure and change the paradigm of energy equity from aspirational international law, such as the SDG 7, to a daily reality for Nigerians.

Niger’s energy law and policy is one example of the need for regulatory frameworks to adapt to changes in technology, such as increased accessibility of micro-generation, to promote equity and accessibility. As Professor Kelley’s experiences in Niger over the last 35 years demonstrate, change is occurring in the absence of needed energy law and policy amendments. Yet, such change is happening at the energy consumer level. In Niger, if governmental barriers are removed, the private market and entrepreneurs have the ability to drastically change lives through increased access to abundant clean energy sources. Micro-generation stands to literally bring power to people that have been forgotten by government infrastructure and change the paradigm of energy equity from aspirational international law, such as the SDG 7, to a daily reality for Nigerians.

Professor Thomas Kelley & Christopher Kenney

Professor Thomas Kelley serves as a James Dickson Phillips Distinguished Professor of Law, the Director of the UNC-Law Institute for Innovation, and the faculty supervisor of the Community Development Law Clinic. His teaching and research interests include nonprofit organizations and international law (with an emphasis on Africa). His areas of expertise include international law, international law and development, and international human rights.

(UNC Law Profile  | LinkedIn

Christopher Kenney is a member of the Broun National Trial Team (BNTT) and the Journal of Law & Technology (JOLT). Prior to attending the University of North Carolina School of Law, Chris served as an Army Officer. He is interested in corporate law and litigation, and he will be joining Sherman & Howard in the Firm’s Denver, Colorado, office as a 2022 summer associate.

(Spring Blog | LinkedIn)