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The Inflation Reduction Act has been touted as the largest investment in efforts to address climate change. Many, including us, have been doubtful that those investments – most of which are tax incentives – will be particularly effective.
But, it turns out, there is language in the bill, which President Joe Biden signed into law earlier this month, that can make a big difference in America’s ongoing efforts to reduce emissions of pollutants that trap heat around the earth.
A provision of the act explicitly gives the Environmental Protection Agency the authority to regulate greenhouse gasses as pollutants. This is significant because the U.S. Supreme Court recently pared back the agency’s authority to regulate greenhouse gas emissions.
The court ruled in June that Congress hadn’t given the agency the authority to require specific methods to reduce emissions of these gases, such as carbon dioxide and methane, from power plants, one of the major sources of these emissions. Namely, the court said that the EPA could not require power plants to switch from coal to cleaner sources of energy, such as solar and wind, to reduce greenhouse gas emissions.
The new language doesn’t undo the court ruling, but it makes it clear that the EPA can set limits on greenhouse gas emissions going forward.
“The new law does amend the Clean Air Act – the nation’s primary air quality law – to define several greenhouse gasses as air pollutants. So it will help the EPA as it plans future regulations,” Patrick Parenteau, a professor of law at the Vermont Law School, recently wrote for The Conversation. “But it doesn’t specifically grant the EPA new authority to regulate power plants.”
He explained that the legislation, passed through a process called reconciliation, which means it was backed by only Democratic members of the Senate, defines greenhouse gasses to include the six specific gases that the EPA determined in 2009 pose a risk to public health and welfare.
This “endangerment finding” was challenged by industry and other groups, but upheld by the U.S. Supreme Court in 2014.
With this new definition in the Inflation Reduction Act, the agency can move forward with regulations of these gasses.
In addition, the new language could bolster the agency’s authority in the face of likely future court challenges. In the June case, West Virginia v. EPA, the Supreme Court’s conservative majority, relying on the “major questions doctrine,” ruled that Congress had not given the EPA the specific authority it used to act on the significant question of climate change. The new language in the Inflation Reduction Act addresses this argument.
The new sections in the act that define the EPA’s authority “are going to be pretty helpful to EPA lawyers, and in general are going to show that EPA isn’t acting like some kind of rogue woke agency in pursuing some of these climate change measures,” University of California Berkeley professor Dan Farber told Bloomberg Law.
The provisions giving the EPA express authority to regulate greenhouse gas emissions may end up being the biggest legacy of the Inflation Reduction Act.
