Author:Welton, Shelley

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 supply.

Table of Contents Introduction I. The Regulatory Landscape and the Impetus for Change A. Some Terminological Clarifications B. An Overview of Existing Energy Institutions C. The Push for Energy Democracy II. Energy Democracy as Consumer Choice A. Articulating the Vision: Consumer Participation and Empowerment B. From Vision to Concrete Reforms: Making the Grid Participatory C. Assessing the Vision: How Democratic Can Consumerism Get? III. Energy Democracy as Local Control A. Articulating the Vision: Power to the People B. From Vision to Concrete Reforms: Rescaling Energy C. Assessing the Vision: Decentralization and Participation IV. Energy Democracy as Access to Process A. Articulating the Vision: The Hard, Dirty Work of Bureaucracy B. From Vision to Concrete Reforms: Cracking Open Energy Institutions C. Assessing the Vision: Who'd Want to Participate in That? V. Coming to Terms A. Consumer Choice and Access to Process B. Local Control and Access to Process Conclusion INTRODUCTION

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-fael-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, "[pjeople 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. (21)

Unsurprisingly, these three emerging visions of what "democracy" might look like in energy law track long-standing, competing conceptions within democratic theory. (22) Within energy law, however, the three strands of democratic reforms parsed above often get collapsed into a single celebratory mode. Take, for example, this statement from the Alliance for a Green Economy, a not-for-profit group commenting on New York's current efforts to reform its regulatory framework for electricity:

[These reforms present] an opportunity to fight for energy democracy, so that residents and communities can be full participants in a clean energy future, from owning renewable energy projects, controlling how we distribute energy, or gaining the power to make decisions about how energy investments are made in our neighborhoods. (23)

With this one statement, the Alliance encapsulates all three conceptions of energy democracy: residents achieving "full participation" by "owning renewable energy projects" (consumer choice); communities owning energy projects and "controlling how we distribute energy" (local control); and residents and communities "gaining the power to make decisions" about energy investments (access to process). (24)

Is it a problem to have this pluralist vision of energy democracy? Not entirely. At times, these visions can coexist or complement each other. Nevertheless, the theories behind these visions and the changes in energy governance that they require are different enough that regulators may have a difficult time squaring simultaneous pursuit of all three. Consider the first two conceptions: (1) consumer choice and (2) local control. They both focus on decentralization as democratization, but they suggest decentralizing in strikingly different ways. The consumer-choice conception underpins the movement in several states to create "distribution markets" where consumers can sell energy directly into the grid. (25) These reforms would lead to near- complete marketization of electricity decisionmaking, with aggregated individual consumer choices, motivated by pricing signals, driving systemic change.

In contrast, the local-control conception counsels for devolution of electricity systems to municipal ownership or legal control. In this way, localities would gain more say in setting priorities for their electricity systems, be they economic development or...

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