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. However, 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. However, exactly how the “democratization” of energy law might proceed remains unclear. Indeed, the term “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: energy democracy as “consumer choice,” energy democracy as “local control,” and energy democracy as “access to process.” It then explains how each of these visions counsels for a different set of regulatory reforms, which cannot all be pursued simultaneously. Because regulators will have to conscientiously 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,” as each risks diminishing existing participatory processes within energy law without replacing them with anything better.