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116 Mich. L. Rev. 581 (2017-2018)
Grasping for Energy Democracy

handle is hein.journals/mlr116 and id is 619 raw text is: GRASPING FOR ENERGY DEMOCRACY Shelley Welton* 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 ro- bust nationwide debates over what role new nuclear power plants and hydrau- lically 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 democratiza- tion 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 democra- tizing energy law, as different conceptions of the term demand divergent legal reforms. To make this case, it first identifies three distinct conceptions of en- ergy democracy in discussions of energy law reform: consumer choice, local control, and access to process. It then explains how each of these visions coun- sels for a different set of regulatory reforms, which instantiate distinct processes for channeling citizen preferences about the future of our energy sys- tem. As regulators choose among these visions, it is imperative that they un- derstand the stakes of embracing any particular conception of energy democracy. This Article advances that endeavor by tying the rhetoric of en- ergy 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. * 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. 581

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