Academic journal article Michigan Law Review

Grasping for Energy Democracy

Academic journal article Michigan Law Review

Grasping for Energy Democracy

Article excerpt


Americans have long treated energy law as predominantly an exercise in expert technological management, requiring limited citizen participation.1 We all want light upon the flick of a switch, and we revile the notion of waiting in line to fill our gas tanks, but rarely have we been interested in peering behind the curtain of energy regulation.2 It doesn't help that energy regulators implement their mandates to ensure reliability and maintain "just and reasonable rates" primarily through complex adjudicatory proceedings,3 which discourage broad participation.4

Yet climate change obliterates the idea that energy law can continue to be-if it ever was-a value-neutral exercise best left to utilities and their regulatory oversight bodies. To effectively respond to climate change, the U.S. energy system requires a radical transformation-often called "decarbonization"-from predominantly fossil-fuel-fired energy to almost exclusively carbon-free energy sources.5 In the face of this challenging task and the many policy conundrums it raises, few Americans express continued desire to punt energy policy to bureaucratic experts.6

Instead, "[p]eople are starting to recognize that the world of energy involves fundamental ethical questions."7 This growing recognition is evident in recent protest movements-and violent reprisals-over new oil and gas pipelines,8 in strangely cross-partisan state battles over solar energy policy,9 and in hard-fought state ballot initiatives considering whether to adopt carbon taxes.10 Despite such visible outcries from the public on energy policy, much of our decisionmaking on energy policy in the United States occurs within complex layers of bureaucracy.11 Today's energy bureaucrats must determine what the fate of aging nuclear power and coal plants should be;12 how much renewable energy to incentivize, and who should pay for it;13 how to protect low-income consumers from rising energy prices; 14 whether to approve new transmission lines, pipelines, nuclear power plants, off-shore wind farms, and underground carbon-sequestration chambers;15 how much to rely on natural gas, often hydraulically fractured, to meet electricity needs;16 and where to site whatever new infrastructure they approve.17 In our current energy governance regime, the public plays a limited role in making these decisions.18

To better inject societal values and public opinions into these decisionmaking processes, there is a widening call among activists, scholars, and regulators for the "democratization" of energy law and policy.19 This call emerges from a realization that the choices and challenges now facing energy regulators raise difficult questions of values and tradeoffs that make public participation more important and worthwhile.20 But exactly how the "democratization" of energy might proceed remains unclear. Indeed, the concept of "energy democracy" has taken on significantly different-and frequently conflicting-meanings to different actors within debates over energy law reform.

This Article argues that the lack of clarity over what "energy democracy" entails presents a troubling hurdle to the project of democratizing the field, as different conceptions of the term counsel for divergent legal reforms. The Article identifies three distinct conceptions of "energy democracy" that have emerged in discussions of energy law reform:

1. Consumer Choice: Energy governance regimes should be redesigned to give consumers more choices in their energy purchasing decisions, including more control over their level of energy demand and the opportunity to generate, store, and sell their own electricity.

2. Local Control: Energy decisionmaking should be decentralized by local communities claiming ownership of energy resources and control over energy decisionmaking.

3. Access to Process: Energy regulators should embrace procedural reforms that enable more citizens to participate in governmental decisionmaking processes about energy policy across all levels of government. …

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