Restorative Energy Justice.

AuthorWallsgrove, Richard J.

Table of Contents Introduction I. Evolving Views on Energy Justice A. An Explosive Decade of Scholarship B. Energy Justice Foundations--Distributive, Procedural, and Restorative Justice II. Healing Justice A. Three Pillars of Restorative Justice in the Context of Criminal Law--Harms, Accountability, and Participation B. Restorative Justice in Environmental Law Environmental Crimes 2. Pollution Regulation 3. Renewable Rikers C. Restorative Justice as a Transformative Tool III. Restorative Energy Justice?--A Case Study in Hawai'i Recognition 1. Hawaiian Electric and the Illegal Overthrow of the Kingdom of Hawai'i 2. After the Overthrow 3. The "Big Six?"--Hawaiian Electric and the Sugar Industry 4. Hawaiian Electric and Militarization 5. Epilogue and the Need for Further Inquiry into the Role of 'Oiwi Agency in Hawai'i's Early Energy System B. Beyond Recognition 1. Responsibility 2. Reconstruction and Apology C. Repair 1. Restorative Energy Justice in the Rooftop Solar Debate 2. Restorative Energy Justice as a Tool for Utility Reform Conclusion "Whatever the other effects of these actions, they created a favorable political climate in which local industries could begin to plan for the future."

--C. Dudley Pratt, Former President of Hawaiian Electric, describing the illegal overthrow of the Kingdom of Hawai'i

Introduction

Restorative energy justice was identified in 2018 as part of a proposed "triumvirate of tenets" intended to organize energy justice into a discrete set of first principles. (1) The authors of that proposal described restorative energy justice as underdeveloped in comparison to the more entrenched concepts of distributive justice and procedural justice in the energy sphere. (2)

This work responds to that call. Parts I and II are descriptive. They outline foundational vocabulary and analytical structures capable of joining the previously independent disciplines of energy justice and restorative justice. Part I describes a variety of still-evolving proposed frameworks in the relatively young academic inquiry into energy justice. Part II describes the criminal law roots of restorative justice, where it generally refers to principles and practices that respond to crime by focusing on participants and balancing the needs of victims, offenders, and the communities around them. (3) It aims to repair harms, both concretely and symbolically, and it emphasizes accountability and responsibility. (4)

To help translate from the criminal law context into an energy context, Part II also illustrates how these restorative principles and practices are being applied to environmental issues by courts, regulators, and scholars. This form of restorative justice aims to advance the environmental justice framework beyond a focus on distributive impacts such as disparate environmental and health outcomes. Part II also describes how restorative justice theory can apply to societal-scale conflicts and wrongdoing. Applied to environmental issues, this restorative approach attempts to uncover the latent role of colonization in contributing to environmental harms, better understand complex issues related to communities' social and cultural connections to natural resources, and support ongoing work to repair cultural, economic, and political self-determination. (5) The ubiquity of the energy sector and the broad goals of energy justice demand the same transformative capacity.

Hawai'i's regulated electricity sector provides an opportunity to critically examine how these concepts might then be operationalized in an energy landscape. Part III conducts a thought experiment (6) by employing a four-part framework for restorative inquiry (recognition, responsibility, reconstruction, repair). (7) It presents historical evidence of the deeply intertwined relationship between Hawai'i's regulated electricity industry and the illegal overthrow of the Hawaiian Kingdom. (8) This work identifies indelible marks of colonization on the resulting energy system.

Looking ahead, Hawai'i has embarked on a once-in-a-lifetime plan to decarbonize its electricity sector. The policies driving this transition are imbued with concepts and phrases such as energy independence, selfsufficiency, indigenous energy resources, and community resilience. Moreover, such policies arose in a legal landscape that, in some ways, embraces restorative justice principles. (9) Yet energy policy is often framed within an ahistorical and densely technical context, or it focuses tightly on questions about where to site individual instances of energy infrastructure. (10) Carrying the thought experiment forward, Part III argues that energy planning could instead begin with more fundamental questions, reframed through the lens of restorative justice. This approach has direct relevance to at least two ongoing policy debates. First, energy planning should more deeply consider the relationship between Native Hawaiians and 'aina (land). This might push those plans to incorporate more distributed energy resources on developed land, such as rooftop and community-scale solar, and rely less upon greenfield development of utility-scale renewable energy. Second, a restorative approach might reinvigorate a slow-burning investigation into alternatives to the present investor-owned utility business model. In sum, by employing a restorative approach that more critically considers the context of past and present energy decisions, energy regulators can more accurately account for the future costs of business-asusual energy development.

  1. Evolving Views on Energy Justice

    1. An Explosive Decade of Scholarship

      To understand the role of restorative justice in energy law and policy, it is useful to first review some interrelated and still-evolving articulations of "energy justice." Lakshman Guruswamy has been credited as one of the first scholars to define energy justice. (11) Approaching the issue largely from a sustainable development perspective in 2010, Guruswamy's focus was on "framing energy justice as a moral obligation to ensure that those who lack access to clean energy, the energy poor, have access to clean energy technologies that limit exposure to harmful indoor pollutants." (12)

      Given the ubiquity of energy needs and uses around the globe, the concept of energy justice must also apply in other contexts. Therefore, it continues to evolve and incorporate principles of climate justice, environmental justice, and energy democracy. (13) In step with this evolution, a variety of approaches have been proposed to identify and organize justice concepts in ways that can be operationalized in the energy landscape.

      A substantial 2014 text by Benjamin Sovacool and Michael Dworkin describes a continuum of international energy justice theories, principles, and practices. (14) Other work focuses on identifying more discrete analytical frameworks within that continuum. For example, Kirsten Jenkins and coauthors organize core notions of energy justice as the "'three A's' of availability, accessibility and affordability." (15) Others propose a similar trilemma of security, affordability, and sustainability. (16) While outcome-based principles such as these can be useful, particularly as a template for evaluating the distributional impacts of particular energy decisions, justice considerations are necessarily broader. In 2015, Sovacool and Dworkin worked to outline an energy justice decision-making tool: a "concept of energy justice [that] connects energy policy and technology with ... eight philosophical concepts, influences, applications, injustices, and solutions." (17) These eight themes are summarized as: availability, affordability, due process, good governance, sustainability, intergenerational equity, intragenerational equity, and responsibility. (18) This approach is founded upon well-known work on social justice theory, such as concepts enunciated by John Rawls and Michael Sandel. (19) It explicitly acknowledges the key foundational concepts of distributional justice ("'to ask whether a society is just is to ask how it distributes the things we prize'") and procedural justice ("how decisions are made in the pursuit of social goals, or who is involved and has influence in decision-making"). (20)

      Shelley Welton and Joel Eisen map a four-part "clean energy justice" agenda applicable to the rapid transition to clean energy: (i) funding the transition; (ii) examining who benefits from a clean energy economy; (iii) evaluating who participates in decisions about that new economy; and (iv) deciding how and where to site new energy infrastructure. (21) This approach acknowledges ties to the traditional environmental justice agenda. (22) However, it can be distinguished from that agenda, in part on the basis that energy law is often bound up with the economic regulation of monopolies and with the emergence of new technologies. Moreover, Welton and Eisen assert that because of "its history of attempting to ensure that consumers are treated fairly, ... energy law pays more attention to distributive concerns than U.S. environmental statutes." (23) They also specify clean energy justice as a distinct subcomponent of energy justice, insofar as clean energy justice is focused on inequities that may persist or worsen in the transition to new forms of sustainable energy, while energy justice more broadly examines injustices associated with existing energy systems. (24) This approach is commendable for highlighting the need to incorporate justice into renewable energy law and policy, rather than resting on the assumption that eliminating fossil fuels will also eradicate injustices from energy systems.

      Shalanda Baker, appointed as the first-ever Deputy Director of Energy Justice at the U.S. Department of Energy, (25) approaches similar concerns by proposing an "anti-resilience" framework. That approach asserts that:

      Energy policy, at this particular moment of transition, could restructure society by...

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