Grasping for Energy Democracy
Until recently, energy law has attracted relatively little citizen participation.
Instead, Americans have preferred to leave matters of energy governance to
expert bureaucrats. But the imperative to respond to climate change presents
energy regulators with difficult choices over what our future energy sources
should be, and how quickly we should transition to them—choices that are
outside traditional regulatory expertise. For example, there are currently robust
nationwide debates over what role new nuclear power plants and hydraulically
fractured natural gas should play in our energy mix, and over how to
maintain affordable energy for all while rewarding those who choose to put
solar panels on their roofs. These questions are far less technical and more
value laden than most of the questions energy bureaucrats faced in the past.
Consequently, these issues have provoked a growing call for the “democratization”
of energy law, so that the field might better inject Americans’ preferences
and goals into decisions over energy policy.
But exactly how the democratization of energy law might proceed remains
unclear. Indeed, the concept of “energy democracy” has taken on significantly
different—and frequently conflicting—meanings in debates over energy law
reform. This Article argues that the lack of clarity over the meaning of energy
democracy presents a troubling hurdle to the burgeoning project of democratizing
energy law, as different conceptions of the term demand divergent legal
reforms. To make this case, it first identifies three distinct conceptions of energy
democracy in discussions of energy law reform: consumer choice, local
control, and access to process. It then explains how each of these visions counsels
for a different set of regulatory reforms, which instantiate distinct
processes for channeling citizen preferences about the future of our energy system.
As regulators choose among these visions, it is imperative that they understand
the stakes of embracing any particular conception of “energy
democracy.” This Article advances that endeavor by tying the rhetoric of energy
democracy to concrete proposals for reform, and evaluating what each
portends for the “democratization” of energy law. It concludes with a note of
caution about too swiftly embracing “consumer choice” or “local control,”
since each risks narrowing modes of participation in ways that may diminish
from a robust conversation about the grid-wide changes needed in U.S. energy
*Assistant Professor, University of South Carolina School of Law. Thanks to Holly
Doremus, Sean Kammer, Amanda Shanor, Doug Kysar, Al Klevorick, Susan Rose-Ackerman, Dan Esty, Josh Eagle, Ned Snow, Eric Biber, Alice Kaswan, Nathan Richardson, Nick Parrillo, and participants in the University of Washington School of Law’s June 2016 Junior Environmental Law Scholars Workshop, the PUC-Clean Energy Collaborative’s Fall 2016 Workshop at UNC-Chapel Hill, the Yale Law School Ph.D. in Law Workshop, UC-Berkeley’s Spring 2017 Environmental Law Colloquium, and Sharon Jacobs’s Spring 2017 Advanced Energy Law Seminar at Colorado Law for comments on various drafts.