5 Role of Law in the Energy Transitions in Africa …
161
by the CPGR connotes a sense of regulation by NERC, whereas no
such provision exists in the EPSRA. The ‘exceeding 1 MW’ qualifier
in the definition of captive power in the CPGR runs contrary to the
provisions of EPSRA. It is unclear why NERC, with the instrumentality
of subsidiary legislation, would arrogate regulatory powers over captive
power generation to itself when the primary statute excludes such regulation. Consequently, this ‘regulatory gymnastics’ leads to uncertainties
for RE investors and operators within NESI. A major barrier to sectoral
investment is the uncertainty created by the regulatory regime, and there
is a need for a holistic review of Nigeria’s electricity regulatory framework
in order to upscale access to energy.
5.3.3 Doctrine of Covering the Field vis-à-vis
the Conflict of Electricity Laws
The doctrine of covering the field and questions about the superiority
between Federal Acts and State Laws are bound to arise and call for determination in many situations. Based on this doctrine, it is arguable that
the conflict of electricity laws can be easily determined. As EPSRA vests
NERC with powers to regulate on-grid and off-grid electricity operations
in both urban and rural areas,
98 any State Law that purports to regulate
rural electricity within its territory is inferior to EPSRA and therefore
ineffective by virtue of s 4 (5) of the CFRN. The doctrine can be applied
where the National Assembly or a State House of Assembly enacts a
Federal Act or State Law on a subject that the CFRN has already made
provisions thereof. Here, the CFRN is said to have covered the field, and
that Act or Law is ineffective.
99 Also, where a State Law is enacted on a
subject for which a Federal Act has already been done, the Act supersedes
such law.
100 However, the Court of Appeal has held that this provision
98 See the combined effect of EPSRA, ss 32 (1)(b); 32 (2)(d), (f ) and (g); 96 (1); 96 (1)(b);
96 (2)(i), (o) and (q).
99 CFRN, s 1 (3); Attorney-General of Ogun State v Attorney-General of the Federation [1982] 2
NCLR 166.
100 Attorney-General of Lagos State v. Eko Hotels (2017) LPELR-43713 (SC).
161
by the CPGR connotes a sense of regulation by NERC, whereas no
such provision exists in the EPSRA. The ‘exceeding 1 MW’ qualifier
in the definition of captive power in the CPGR runs contrary to the
provisions of EPSRA. It is unclear why NERC, with the instrumentality
of subsidiary legislation, would arrogate regulatory powers over captive
power generation to itself when the primary statute excludes such regulation. Consequently, this ‘regulatory gymnastics’ leads to uncertainties
for RE investors and operators within NESI. A major barrier to sectoral
investment is the uncertainty created by the regulatory regime, and there
is a need for a holistic review of Nigeria’s electricity regulatory framework
in order to upscale access to energy.
5.3.3 Doctrine of Covering the Field vis-à-vis
the Conflict of Electricity Laws
The doctrine of covering the field and questions about the superiority
between Federal Acts and State Laws are bound to arise and call for determination in many situations. Based on this doctrine, it is arguable that
the conflict of electricity laws can be easily determined. As EPSRA vests
NERC with powers to regulate on-grid and off-grid electricity operations
in both urban and rural areas,
98 any State Law that purports to regulate
rural electricity within its territory is inferior to EPSRA and therefore
ineffective by virtue of s 4 (5) of the CFRN. The doctrine can be applied
where the National Assembly or a State House of Assembly enacts a
Federal Act or State Law on a subject that the CFRN has already made
provisions thereof. Here, the CFRN is said to have covered the field, and
that Act or Law is ineffective.
99 Also, where a State Law is enacted on a
subject for which a Federal Act has already been done, the Act supersedes
such law.
100 However, the Court of Appeal has held that this provision
98 See the combined effect of EPSRA, ss 32 (1)(b); 32 (2)(d), (f ) and (g); 96 (1); 96 (1)(b);
96 (2)(i), (o) and (q).
99 CFRN, s 1 (3); Attorney-General of Ogun State v Attorney-General of the Federation [1982] 2
NCLR 166.
100 Attorney-General of Lagos State v. Eko Hotels (2017) LPELR-43713 (SC).