LITIGATION TRENDS IN RENEWABLE ENERGY: DISPUTES OVER LAND USE AND ENVIRONMENTAL IMPACT
INTRODUCTION
Renewable energy is derived from natural environmental sources, which are replenished at a rate equal to or faster than at which they are absorbed. Renewable energy sources include sunlight, wind, water, organic waste, and heat from the Earth which are abundant, replenished by nature, and emit little to no greenhouse gases or air pollutants. According to reports, in 2023; the power sector was the greatest contributor to environmental pollution[i] and renewable energy is here to reduce its effect on society.
In 2024, research has shown that the world invests twice as much in renewable energy as it does in traditional energy sources[ii]. This might stem from the fact that the world is trying to reduce the impact of global greenhouse gas emissions on the environment. According to UN; to avoid the worst impacts of climate change, emissions must be reduced by almost half by 2030, and reach net-zero by 2050[iii].
Renewable energy sources include sunlight, wind, water, organic waste, and heat from the Earth which are abundant, replenished by nature, and emit little to no greenhouse gases or air pollutants. According to reports, in 2023; the power sector was the greatest contributor to environmental pollution[iv] and renewable energy is here to reduce its effect on society.
Nigeria is not left behind in the renewable energy discuss, Excluding Hydropower, Nigeria’s renewable energy input has been calculated to be an estimate of 35MW, out of which 30MW accounts for small hydropower, while the remaining 5MW accounts for solar PV This jointly represents 0.06% of the nation’s aggregate electricity generating capacity[v]. According to the Federal Ministry of Science, Technology & Innovation Federal Republic of Nigeria, Nigeria has four sources of renewable energy:
- Solar: IRENA estimates the technical potential for solar photovoltaic (PV) in the country at 210 gigawatts (GW), considering only 1% of the suitable land can be utilised for project development.
- Wind: IRENA estimates the technical potential for wind at 3.2 GW, considering only 1% of the suitable land can be utilised for project development. However, the Federal Ministry of Power says that it is conducting an offshore wind mapping. For this study, it is assumed that only onshore wind turbines will be deployed in Nigeria.
- Hydro: Nigeria has a large hydro potential of around 24 GW and a small hydro potential of about 3.5 GW. This potential, for the most part, is yet to be exploited. In 2015, Nigeria had about 1.9 GW installed capacity of large hydro and about 60 megawatts of small hydro.
- Biomass: Exploiting the huge potential of biomass resources in the country, especially in the form of agricultural residues for power generation, will go a long way to resolving the current energy crisis in Nigeria.[vi]
Notwithstanding Nigeria’s access to renewable energy sources, it remains one of the countries with the lowest rate of renewable energy. At this rate, it is not feasible for Nigeria to achieve its targets without the integration of renewable energy.
There have been disputes arising in the renewable energy sector not just in Nigeria but in the world, there have been disputes on policies, use of lands and even funds in many instances, affected groups have to resort to public mobilisation and campaigns to address these errors. With this underway, litigation is another viable means to enforce their rights over their lands and the perceived misuse of them.
This article analyses the evolving legal landscape of renewable energy and how these disputes are resolved or otherwise settled, ensuring favourable outcomes for both the land owners and energy developers alike.
HISTORY OF LITIGATION IN ENERGY
The litigation trend in the Renewable Energy sector has evolved drastically. The evolution of the dispute arose from the traditional energy sector that is petroleum, gas flaring, mining and the rest hence we cannot discuss the litigation trends in renewable energy without discussing the litigation trends in the traditional energy sector.
The first cause of litigation dispute in environmental sector would be the owner of the land where minerals were found. The Constitution of Federal Republic of Nigeria (CFRN)[vii] provides that the entire property in and control of all minerals, mineral oils, and natural gas in Nigeria are vested in the Federal Government. The government holds these resources in trust for the Nigerian people. This legal position is a fundamental principle and overrides the traditional concept of “whoever owns the land owns everything on and under it” (quicquid plantatur solo, solo cedit). This position also is learnt credence by the provision of Minerals and Mining Act, 2007 while Under the Land Use Act, all land within a state’s territory is vested in the State Governor to be held in trust for the benefit of Nigerians[viii]. This has led to various disputes between the State government and the federal government however the constitution has settled that The Constitution also provides that those mines and minerals, including oil fields, oil mining, geological surveys, and natural gas are the exclusive preserve of the federal government of Nigeria.[ix] Also the court in the case of Attorney-General of the Federation v. Attorney-General of Abia State & 35 Ors.[x] held that
“the federal government alone and not the littoral states can lawfully exercise legislative, exclusive, and judicial power over the maritime belt or territorial waters and sovereign rights over the Exclusive Economic Zone subject to universally recognized rights, and as such, the ownership, control, and management rights over the natural resources located in the offshore areas of Nigeria is the exclusive preserve of the Federal Government of Nigeria to the exclusion of the federating unit”
Another dispute would be dispute on the principle of derivation; the principle of derivation simply means constitutional directive which constitutes a form of reparation for an expropriated interest and cannot be waived or derogated from by either the state or federal government[xi]. The state governments, communities or even individual owners of lands where the resources are found have always put up a resistance over the principle of derivatives. The principle provides that not less than 13% of the revenue accruing to the Federation Account directly from any natural resources shall be payable to a State of the Federation from which such natural resources are derived[xii] This has caused a lot of disputes as States have been urging the national assembly to increase the 13%.
Another common dispute is the dispute between International Oil Companies and the communities where the communities are claiming compensation for damage done to their land due to the activities of the International Oil Companies.
LITIGATION TRENDS IN RENEWABLE ENERGY
Having discussed the litigation trends in energy, we can now discuss the litigation trends in Renewable Energy. Renewable energy is a relatively new sector so the litigation trends there are just developing, the trends stem from the traditional energy sector. People have seen the damage that the traditional sector has caused, hence the need to pivot to renewable energy to protect the environment. Renewable energy has helped reduce the extent of litigation in the energy sector that extends to the land and even the mineral resources. Let’s take Nigeria for example, the states with petroleum have reduced their clamour for increase in their share under the principle of privatisation they understand the fact that the world has shifted from crude and its derivative to fossils and other renewable energy. Also there have been lesser disputes between International Oil Companies and the communities since the damage usually complained about have drastically reduced.
This is not to say new areas of dispute have not emerged in the Renewable Energy Sector, some of the disputes areas that have now aroused in the renewable energy sectors include;
- Regulatory and Policy Frameworks: Some of the regulatory frameworks of renewable energy in Nigeria includes; The Climate Change Act, The Environmental Impact Assessment Act 1992, The Electricity Act of 2023 has brought significant reforms, aiming to boost private sector participation. We have the whole of Chapter VII discussing renewable energy while Chapter VIII focuses on hydro generation of power. However, inconsistencies and overlapping regulations within the existing legal and institutional framework pose challenges. Litigation could arise from disputes over licensing, tariff setting, and the interpretation of these new laws.
- ENVIROMENTAL AND SITTING DISPUTES: One of the main causes of dispute with renewable energy is the environmental and sitting effects. Conflicts usually arise between the local communities and energy developers over land use, compensation distribution, and environmental impact. A community where a wind farm project is to be built may create a resistance due to the unbearable noise a wind farm would constitute. These conflicts are the resultant effect of the imbalance in the power dynamic between these 2 parties. Energy developers possess the capital and technology to carry out various activities, often to the detriment of the local community, and in dire circumstances, making the land uninhabitable. Communities have strongly come against the establishment of some renewable energy mechanisms such as solar and wind panels. In the U.S.A, National environmental groups filed court challenges for five solar projects (of 14) and one wind project (of 9)[xiii]. In Nigeria, Niger state instituted action against Mainstream Energy Solutions Limited and North-South Power Company over payment of land charges and ground rent for the sum of N140 billion for 2017 to 2022.[xiv] Also in Kenya the popular Lake Turkana Wind Power case is also an example of environmental and sitting disputes, here the court revert the lands that were obtained by a company for the purpose of creating power by wind to the communities and declare the process of acquisition irregular when the communities sued[xv]
- FUNDING: There have also been disputes arising from the funding of Renewable Energy projects. In the U.S.A for example, some have criticised the fact that federal funds have been used to sponsor some of these renewable energy projects and have argued that the funds could have been used for other projects. Also in Nigeria under the Valued Added Tax Act, incentives have been provided for companies involved in renewable energy projects. There is also the Solar Hybrid Mini Grid Fund that was created for solar project According to the official website of the Rural Electrification Agency, the Nigeria Electrification Project (NEP) solar hybrid mini grid component aims to support the development of private sector mini grids in rural areas across Nigeria hence why they are pumping a whooping sum of US$410 million into it[xvi]. Some might argue that it’s not necessary as the money can go into other projects.
- CONTRACTUAL DISPUTES: disputes may emerge from Power Purchase Agreements (PPAs), construction contracts, and equipment performance issues, especially as new technologies are deployed.
ENVIRONMENTAL IMPACT
Historically, actions instituted sought compensation for the damage done, but we’ve seen a shift in recent times towards requesting environmental remediation in the form of imposing clean-up operation.
If the land upon which the resource is found belongs to the government, what happens to the neighbouring lands still in the hands of private individuals, needing to be preserved? Without protection for these lands, the ecosystem tremendously deteriorates.
This is prevalent in the Niger Delta, which is blessed with not only the resource but foliage and wildlife. In recent times, exploration of these resources, as well as the paternalistic attitude of the courts, has led to deplorable environmental conditions. Between 1958 and 2010, it’s estimated that 10.8 million barrels of crude oil were dispersed into the surrounding ecosystem annually[xvii]. Although the Environmental Impact Assessment (EIA) Act of 1992 provides for a mandatory assessment for any public or private project that is likely to impact the environment before approval[xviii]. This has done little to dampen the far-reaching effects of these projects on neighbouring lands, the environment and members of the community.
Beyond this, several persons have been coerced into submitting their lands for the advancement of these renewable projects and have not been fairly compensated, as specifically wind farms require a large expanse of land, which previously might have been used to cater to the agricultural needs of the community or family.
CONCLUSION
In conclusion, one cannot deny that the rise of renewable energy was given birth to by the environmental damage that was done by the traditional energy sector and a lot of litigation dispute has emerged from it The uncertainties surrounding land use, ownership, compensation, and other factors have posed difficulties to the advancement of renewable energies; hence, legal systems need to evolve to accommodate these unique trends in renewable energy projects.
The Business & Human Rights Resource Centre’s just transition litigation tracking tool documents around 95 cases filed globally since 2009 by human rights activists harmed by renewable energy[xix]. In 65% of these cases, the plaintiffs sought to halt the project, and in 40% of these instances, judgement was given in their favour. Recently, In Panama, an action was brought by the indigenous community and activists against Minera Panama arguing that the project violated their land and environmental protection guidelines. The Supreme Court ruled in their favour and the copper mine was close as it was determined that the operating contract was unconstitutional[xx]. On an environmental front, there’s been a shift in approach from tort/negligence based claims to human rights/public claims. This could be attributed to the difficulty in proving a claim founded in tort on such a grand scale. For instance, the burden of proof. The plaintiff bears the burden of proving causation, actori incumbit onus probandi – as he who asserts must prove, which can be arduous in instances of environmental harm due to the complex nature of pollution. The shift in the context of the grounds for bringing claims, the rise in the claim and also the outcomes of the claims has contributed to the growth of litigation trends in dispute resolution.
[i] ibid
[ii] International Energy Agency, ‘World Energy Investment 2024, Overview and Key Findings’, https://www.iea.org/reports/world-energy-investment-2024/overview-and-key-findings.
[iii] Renewable energy – powering a safer and prosperous future https://www.un.org/en/climatechange/raising-ambition/renewable-energy
[iv] ibid
[v] Federal Ministry of Power and Steel (Nigeria), Renewable Electricity Action Program (REAP) (International Centre for Energy, Environment and Development, December 2006) http://www.iceednigeria.org accessed 12 September 2025.
[vi] https://www.nigeria-energy.com/content/dam/markets/emea/nigeria-energy/en/2023/docs/NE23-NigeriaEnergyRoadmap-Report.pdf
[vii] Section 44(3)
[viii] Land Use Act 1978 (Cap L5, LFN 2004), s 1
[ix] Schedule II, Legislative Powers, Part I, Exclusive Legislative List, item 39, Constitution of the Federal Republic of Nigeria 1999 (as amended)
[x] (2002) 6 NWLR (Part 764) 542.
[xi] Mudiaga Odje, The Challenges of True Federalism and Resource Control in Nigeria (Akpo Mudiaga Odje, 2002)
[xii] Constitution of the Federal Republic of Nigeria 1999 (as amended) section 162(2)
[xiii] https://www.rff.org/publications/reports/taking-green-energy-projects-to-court-nepa-review-and-court-challenges-to-renewable-energy/#:~:text=Abstract,decision%20is%20challenged%20in%20court. Accessed 15 September 2025
[xiv] https://guardian.ng/news/niger-state-files-suit-against-power-generating-companies/ accessed 19 September 2025
[xv] https://www.business-humanrights.org/en/latest-news/kenya-lawsuit-by-locals-against-lake-turkana-wind-power-over-land-allocation-community-participation-slowing-down-project/ accessed 19 of September 2025
[xvi] https://nep.rea.gov.ng/mini-grid.html accessed 19 September 2025
[xvii] Paul Francis, Deirdre LaPin & Paula A. Rossiasco, Securing Development and Peace in the Niger Delta: A Social and Conflict Analysis for Change (Woodrow Wilson International Center for Scholars, December 2011) https://www.wilsoncenter.org/sites/default/files/media/documents/publication/AFR_110929_Niger%20Delta_0113.pdf accessed 12 September 2025
[xviii] Environmental Impact Assessment Act 1992 (Cap E12, LFN 2004), ss 16 & 25.
[xix] Tyczka, Małgorzata, Litigation and the energy transition: A global call for better corporate practice (Business & Human Rights Resource Centre, 3 July 2025) https://www.business-humanrights.org/en/blog/litigation-and-the-energy-transition-a-global-call-for-better-corporate-practice/ accessed 15 September 2025.
[xx] Małgorzata Tyczka, ‘Litigation and the Energy Transition: A Global Call for Better Corporate Practice’ Business & Human Rights Resource Centre (3 July 2025) https://www.business-humanrights.org/en/blog/litigation-and-the-energy-transition-a-global-call-for-better-corporate-practice/ accessed 15 September 2025.