THE ENDGAME OF MALAYSIA’S ENERGY TRILEMMA: BANKABILITY SUPREMACY VERSUS EQUITY’S MARGINALISATION IN SOLAR PV LAW AND GOVERNANCE

Abstract

Malaysia’s energy transition, particularly in relation to the deployment of solar photovoltaic (“PV”), is often discussed through policy frameworks, clean energy targets, and regulatory schemes/ programmes. Solar PV refers to a technology that converts sunlight into electricity and has become a central component of Malaysia’s renewable energy agenda. However, the legal trajectory of solar PV development is shaped not only by policy design, but also by disputes litigated before the courts, especially where energy projects intersect with land rights, property governance, and statutory compliance. The energy trilemma, which requires the balancing of energy security, energy equity, and environmental sustainability, provides the analytical framework for this study. Within that framework, this article examines how Malaysian courts, through their reasoning, influence solar PV development and consider what trilemma-aligned legal reforms should follow. Using qualitative thematic analysis of reported Malaysian solar-related and energy-adjacent case law, this article argues that judicial patterns reveal a tendency for courts to prioritise energy security, renewable energy (RE) project bankability, and system continuity. They do so by treating formal certainty—registered tenure, clear approvals and procedural proof—as overriding threshold requirements for RE development, before meaningfully engaging with issues of equity, potential harms, or decarbonisation aims. The findings identify three controlling legal thresholds: land title/tenure, private governance (strata/covenants), and statutory land-entry/environmental compliance. In view of balancing the energy trilemma, targeted reforms are proposed, including staged land-readiness, enforceable consultation and compliance pathways, streamlined strata/covenant approvals with transparent records, remedies tied to regularisation and fair compensation, and harmonised minimum environmental safeguards across jurisdictions. This research recasts legal principles arising from energy-land disputes as an integral part of energy transition infrastructure, while concurrently extending energy trilemma analysis to judicial reasoning and remedies.