Meryl Justin Chertoff, Co-Principal Investigator, Energy Democracy in a Federal and Localist System and Executive Director, SALPAL, The Georgetown Project on State and Local Government Policy and Law

Energy justice, a just energy transition, energy poverty and insecurity. All concepts used in the academic literature, and increasingly, in discussions of climate change in the popular media. But how well have these terms been defined? It is not a trifling question: the transition to a carbon neutral energy system is both existentially important and enormously costly.

The incentives of the Inflation Reduction Act of 2022, growing interest at the state level in harnessing solar and other technology, reducing energy demand and realizing efficiency, and the imperative for greater grid resilience to withstand increasingly dramatic weather events exacerbated by climate instability, all are likely to accelerate policy interest in decarbonization at the state and local level, and make the question of energy democracy more salient.

With funding by an Eco Impact award from The Earth Commons: Georgetown University’s Institute for Environment and Sustainability, a University-wide initiative seeding research projects and grant proposals that jumpstart new collaborations and interdisciplinary research inquiries, with the aim of transforming ideas into actionable projects to make Georgetown and its scholarship greener and more vibrant from 2022 to 2023, the Georgetown Project on State and Local Government Law and Policy (SALPAL) studied “Energy Democracy in a Federal and Localist System”.

Directed by Scott K. Ginsburg Professor of Urban Law and Policy and Professor of Public Policy Sheila R. Foster and SALPAL Executive Director Meryl Chertoff, and supported by a team of current and former scholars and students at Georgetown Law and the McCourt School, our team set out to interrogate the idea of energy democracy, building on emerging legal and policy innovations, primarily at the state and local level, that embrace local generation of energy, local community participation in energy decisions, equitable access to energy resources like solar, and a commitment to affordable residential clean energy.

Collaborators included Elena DeNictolis (Ph.D., Political Science) 2022-23 postdoctoral Global Law Fellow at Guarini Center on Environment, Energy and Land Use Law, New York University School of Law; Chiara Pappalardo (LL.M. in Energy and Environmental Law), Doctor of Juridical Science Candidate at Georgetown University Law Center; Dia Porter, Researcher LabGov.City; Kathryn Randolph, L’21, State and Local Justice Fellow, SALPAL (June 2022-Dec 2023) and students Judith Benigni, L’23, Elizabeth Goldstein, L’23 and Camille Norton, M.P.P. Candidate at Georgetown University McCourt School of Public Policy.

After a landscape survey, including review of the roots of energy democracy and energy justice in the environmental justice and energy independence movements that started as early as the Carter Administration in the US during the 1970’s, the team engaged in a series of conversations, debating and discussing key concepts, while sharpening our understanding of the complex technological and regulatory framework. We sought out best practice models and interviewed key informants, attended conferences and convenings in the field, and ultimately produced three white papers that explore the history, state and local law aspects, and international comparative aspects of energy democracy.

On May 18, we presented these papers at Georgetown University Law Center.

White Papers

“State and Local Government as the Matrix for Energy Democracy: An Overview and Directions for Research” by Professor Sheila Foster and Adjunct Professor Meryl Justin Chertoff

Foster and Chertoff explore how different levels of governmental regimes impact energy democracy, comparing how legal and policy levers (authorities, mandates, funding, and power dynamics) impact its success by comparing different projects. In comparing the relative success and failure of certain efforts, Foster and Chertoff begin to distinguish what types of levers are effective in promoting energy democracy and what regimes and policies serve to prevent progress in energy democracy. This paper compares different types of projects including overarching green transition frameworks that include funding opportunities, municipalization efforts, community choice aggregations, net-metering, certificate incentive structures and microgrid systems, and how state and local governments paved the way for these attempts to flourish or flounder.

Among the observations: energy democracy is nascent, not yet pervasive in the United States. Through a series of case studies that emphasized examples in California, New York, Illinois, Florida and Washington DC, we identified some of the state level policies, both regulatory and legislative, that affect energy democracy. Some of the policies and practices we have initially identified are: size and enforceability of a state’s renewable portfolio standard, zoning restrictions, net metering, community-based energy production (e.g. community solar), efforts to facilitate microgrids, various funding mechanisms that provide front end capital for distributed forms of energy production, and participatory processes including community advisory boards and panels, education programs, workforce development, and mandatory community representation, sometimes funded by legacy utility providers themselves. In some cases, rather than empowering localities, states have instead preempted local home rule authority on issues like zoning and permitting.

For more information on this white paper, contact Meryl Justin Chertoff, Adjunct Professor of Law and Executive Director, SALPAL, mjc87@georgetown.edu

“Local Community Energy in Europe” by Elena De Nictolis, postdoctoral Global Law Fellow NYU Law
Through this paper, De Nictolis explores the concept of energy democracy in European literature at the intersection of politics and law. Specifically, De Nictolis explores the implications of the European Union Clean Energy Package introducing the possibility for not-for-profit Citizen Energy Communities and Renewable Energy communities to generate, store, and sell renewable energy and energy services . Beginning in 2018, the E.U.’s secondary law clean energy policy mandated Member States to provide enabling legal frameworks to authorize and support these forms of community energy. De Nictolis looks at how the EU designs these tools with a view to counteracting energy poverty while promoting energy consumers’ empowerment within the transition to a clean energy system. Elena analyzes the potential implications of these enabling frameworks in different countries in regard to community energy projects. Drawing on the existing literature on nascent concepts of energy democracy and energy justice in the European and UK context, she maps the implementation challenges and existing confusions in relation to the impact of the mandate on energy poverty. Finally, in comparing case studies developed by different countries under this mandate, De Nictolis attempts to draw out whether Europe’s mandates have succeeded so far in putting in place enabling frameworks that are adapted to the needs of local communities in addressing energy poverty. The paper concludes this exploration by providing insight into whether Europe’s mandates and experience so far can relate to the United States context and whether it can inform some aspects of federal–local collaboration policies on the energy transition.

For more information on this white paper, contact Elena De Nictolis, postdoctoral Global Law Fellow, Elena.denictolis@nyu.edu

 

“Energy Democracy: An emerging concept and legal construct in American Scholarship” by Chiara Pappalardo, SJD Candidate, Georgetown University Law Center

Legal scholars in the United States generally agree that there is a vast democratic deficit in processes involving energy decision making. However, there is much less agreement on the pathways to improve democratic participation for governing energy resources to better balance environmental and social justice demands with more traditional energy policy objectives. This paper looks at the novel concept of “energy democracy” (ED) in the context of the present energy transition to a low carbon economy. The focus is on the power sector and the provision of electricity and its related services, which is where most of the academic discourse on the democratization of energy law and policy concentrates. In this context, the paper explores the origins, foundational elements, and various conceptualizations of ED in legal scholarship. The paper maps out recurring threads that stand out from the literature. In doing so, Pappalardo wishes to illuminate areas of consensus and of dissent among scholars in the field and propose ways to improve ED’s definitional certainty to focus future research and academic discourse on shared conceptual grounds. Another aspiration is to provide a theoretical framework for analyzing aspects of ED that are manifesting at the state and local level in the absence of a comprehensive and cohesive national transition policy. Finally, Pappalardo hopes to inform, from an American perspective, future research and comparative analysis on the different conceptualizations and manifestations of ED that are emerging in other jurisdictions.

For more information on this white paper, contact Chiara Pappalardo, SJD Candidate, cp1075@georgetown.edu.

The SALPAL cohort is grateful to The Earth Commons: Georgetown University’s Institute for Environment and Sustainability for its support, and we hope to take the preliminary findings we have made further through additional collaborations in the coming academic year.
Interested in more? In the coming weeks, SALPAL will publish Georgetown Law student papers on states and local governments that are experimenting with energy democracy models.