I’ve been revisiting ideas of procedural equity in the energy system since the election. The procedures that govern who is selected to regulate utilities and how stakeholders can access and sway decisions have profound impacts on the distribution of benefits and negative impacts. Procedural equity is at the root of whether energy bills are affordable, shutoffs are allowed, or utilities can remain profitable regardless of escalating and debilitating outages or other disparities that harm Black, Brown, Indigenous, rural, renter, and low-income communities.
The impact of procedural equity is akin to deciding whether a society will operate as a democracy or an autocracy. The democracy of the United States has been exclusionary since its “founding” two and a half centuries ago. While the passage of the 15th and 19th amendments and the 1964 Voting Rights Act did enable more women and Black people to vote, they have also been subject to continuous assaults and loopholes, like poll tests and voter ID laws.
Or consider the disenfranchisement of those with felony convictions. In a number of states, a conviction has been grounds for disenfranchisement for life, even after all sentences and parole have been served and any restitution paid. Both policing practices and laws disproportionately target people of color, Black men in particular. The 1986 federal Anti-Drug Abuse Act mandated a 5-year prison sentence 100 times more strict for crack than powder cocaine. Today 4 million American citizens of voting age cannot vote. Felony disenfranchisement has swayed major elections, including the 2000 election in which 600,000 Floridians, the large majority of whom were believed to be Democrats, were prohibited from voting. This is unique to the democracy of the U.S.
As of 2022, 48 states still enforced some form of disenfranchising those with criminal convictions. In other countries, disenfranchising those who have is considered cruel and unusual punishment, while maintaining the right to vote enables civic participation. On a positive note, 26 states have restored voting rights to more than 2 million people. This is a movement in many red states, too. In D.C., people have the right to vote even when physically incarcerated.
Depending on who is in power in places like Florida, the right to vote has been in flux. Felony disenfranchisement roughly tripled from 0.8% to 2.4% of voting age Americans disenfranchised between 1976 and 2016. The political trajectory of the country shifted dramatically, too. An analysis found that 7 U.S. senate races would have been flipped to Democrats, including Mitch McConnell’s 1984 race in Kentucky.
And then there is the presidency of 2000. In the year with about 1 in 5 Black Floridians disenfranchised, Bush held a margin of just 537 votes and was awarded Florida’s delegates by the Supreme Court. The authors estimate Democrats lost a net of about 85,000 votes in Florida due to felony disenfranchisement. (Bush also lost the national popular vote, so one can debate whether felony disenfranchisement, the butterfly ballot, or the electoral college is to blame; the campaign had its bases covered from three angles.)
Bush would later add future Chief Justice John Roberts and Justice Samuel Alito to the Supreme Court, both of whom would vote to give corporations legal personhood status in Citizens United and to repeal Roe v. Wade. Now imagine all of the local and state races, judgeships, and the compounding effect of selective disenfranchisement over centuries.
How does voter disenfranchisement, and disenfranchisement of those convicted of crimes in particular, relate to procedural equity in the energy system?
First, I think it reminds us that there is a spectrum of procedural equity, and some measures are more critical than others. Much of what I hear about procedural equity in the energy system centers access to information and participation. Designing websites that are easier to navigate, providing free language interpretation and translation services, holding public meetings at times and locations that are convenient to impacted communities. Expanding access is good, and possibly necessary, for equitable outcomes, but I would locate this lower on the spectrum than other measures.
I recently re-read the procedural equity chapter in the EEP Framework. The authors begin by describing principles of trust, credibility, and most importantly power, which they define as the ability to influence actual outcomes. An inclusive process that fails to grant sufficient power to implement the priorities of impacted communities falls short.
My second observation is that the debate over restoring voting rights reflects a debate over system reform vs. transformation vs. abolition. The restoration of voting rights is positive, but if incarceration itself and the carceral system were entirely abolished, no such reform would be needed. Similarly, energy equity and justice advocates hold different theories of change. Some understand their role as reining in the abuses of energy companies through regulatory intervention and reform, while others seek to fully supplant investor-owned utilities with public power.
I’d highly recommend the work of Mariame Kaba and the conclusion of her 2015 essay Summer Heat in particular:
“Importantly, we must reject all talk about policing and the overall criminal punishment system being ‘broken’ or ‘not working.’ By rhetorically constructing the criminal punishment system as ‘broken,’ reform is reaffirmed and abolition is painted as unrealistic and unworkable. Those of us who maintain that reform is actually impossible within the current context are positioned as unreasonable and naïve.”
(We quoted Kaba to open the Winter 2025 newsletter; we compiled a collection of similar original art by Interrupting Criminalization here.)
My third and final takeaway from the inequitable implementation of democracy in the U.S. is that there are certain conditions that supersede others. If, for example, a state funds a robust intervenor compensation program but has no limits on the amount of testimony a utility can submit or the frequency of requesting rate increases, the value of intervening may be drastically reduced. This was the case in Michigan, when powerful community organizing, turnout at public meetings, and testimony by grassroots intervenors initially resulted in the rejection of more than 90% of a proposed rate increase by DTE Energy.
But the utility won in the end. We raised this issue to the Public Service Commission in public comment: “Just weeks after rejecting $357.4 million of DTE’s $388 million requested rate increase in U-20836 in its November 18, 2022 order, the Commission allowed DTE to dump a 5,170 page plea for $619 million more from ratepayers pockets….After so much public energy was expended in 2022 to fight the first request, it was effectively overturned by awarding DTE the rest of the ratepayer’s money it originally asked for plus an extra $11 million (I suppose for ten months of inflation), amounting to a total haul of nearly $400 million.” In 2022, DTE had donated to 138 of Michigan’s 148 elected officials.
We have a good sense for the ways that voters in the U.S. have been and continue to be disenfranchised. We need to look more deeply at how procedural inequity plays out in the energy system. Florida, the worst offender for voter disenfranchisement, is also among the worst for shutoffs and deliberately eliminating transparent reporting, which we highlighted in public comments to the US Energy Information Administration. Georgia, another state known for voter disenfranchisement, simply cancelled elections of its public utility commissioners.
We can and should continue to expand access inclusively, but we should also recognize that there are overarching structural concerns that are more pressing. No amount of language interpretation or user-friendly web design can counter unrestricted political investments by utilities, gerrymandering (where commissioners are elected), or the outright cancellation of elections. We need to level up our procedural equity targets and goals if we are to go toe to toe with utilities and fossil companies that have a deep playbook of manipulating legislative and regulatory procedures and policies. These procedural inequities, in turn, lay the groundwork for outcomes that both harm and disenfranchise Black, Brown, Indigenous and low-income communities.
We are in a new year, facing the return of a xenophobic, autocratic, anti-climate action administration. EEP just released a new, four-year strategic vision and we know many organizations are grappling with how to move forward. The impacts of procedural inequity, left unchecked, will ripple well beyond the next four years. Now is the time to rethink our commitments to deepen procedural equity at a structural level.