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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.


Originally published in Michigan Law Review 2018