Patrick Parenteau, Vermont Law School
The new Inflation Reduction Act is being justly celebrated as the most significant piece of federal legislation to address the climate crisis to date. It includes about US$370 billion in incentives for everything from solar panels to electric vehicles.
But there’s some confusion around what it allows the Environmental Protection Agency to do.
Comments by politicians on both sides of the aisle have suggested that the new law could upend a recent U.S. Supreme Court decision in which the court’s conservative majority shackled the EPA’s authority to regulate greenhouse gas emissions from power plants.
The new law does amend the Clean Air Act – the nation’s primary air quality law – to define several greenhouse gases as air pollutants. So it will help the EPA as it plans future regulations. But it doesn’t specifically grant the EPA new authority to regulate power plants.
So, as groundbreaking as it is, the Inflation Reduction Act does not change the impact of the Supreme Court’s determination in West Virginia v. EPA that the EPA lacks the authority to require a systematic shift to cleaner sources of electricity generation.
Why the ruling remains a roadblock for the EPA
The court case involved the Obama administration’s Clean Power Plan, a policy that would have required power generators to use cleaner forms of electricity but never went into effect.
Writing for the court in West Virginia v. EPA, Chief Justice John Roberts argued that the EPA was asserting broad new authority under a little-used provision of the Clean Air Act without explicitly being granted the authority to do so by Congress.
In what has become known as the “major questions doctrine,” the court has adopted a more stringent approach to how it interprets laws that gives much less deference to the views of experts at the federal agencies charged with implementing complex, dynamic regulatory programs designed to protect public health and safety. That accurately describes the challenge of dealing with carbon pollution and the profound impacts it is already having throughout the world.
Roberts made clear that Congress could choose to pass more detailed legislation granting EPA the authority at the heart of the case if it wished. https://www.youtube.com/embed/uio0wr3x2xo?wmode=transparent&start=0 Explaining the ruling in West Virginia v. EPA.
The Inflation Reduction Act amends the Clean Air Act to add seven specific new programs to reduce greenhouse gases and provide funding to the states to develop their own plans. Taken together, these provisions go a long way to address Roberts’ concern that Congress has not spoken plainly enough about EPA’s authority to tackle climate change.
But it falls short of granting EPA the authority to revive the generation shifting approach of the Clean Power Plan.
To get the bill through the sharply divided Congress, the Senate’s Democratic majority used a process called budget reconciliation. That process allows for legislation to pass with only a simple majority of the vote. But legislation passed that way must be closely tied to spending, revenue and the federal debt limit – it cannot set broad national policy.
What the new law does do for EPA’s authority
While the Inflation Reduction Act cannot undo what the Supreme Court has done, it does strengthen EPA’s ability going forward to take stronger actions under the Clean Air Act to reduce greenhouse gases.
The act not only provides substantial increases in EPA’s budget across a wide range of air pollution programs, it also, for the first time, explicitly defines greenhouse gases to include the six specific gases that the EPA determined in 2009 pose a risk to public health and welfare. That 2009 “endangerment finding” was upheld by the Supreme Court in the 2014 case Utility Air Regulatory Group v EPA.
As Sen. Tom Carper, one of the principal architects of the Inflation Reduction Act, said, “The language makes pretty clear that greenhouse gases are pollutants under the Clean Air Act.”
Of course, nothing in life or litigation is certain.
Challenges to EPA’s forthcoming rules replacing the Clean Power Plan, regulating methane emissions from oil and gas operations, tightening tailpipe emission and fuel economy standards, and so on can be expected. But at least now there is clear legislative direction from Congress for the EPA to take bold action needed to meet the profound challenge of climate change and transition to a sustainable economy.
Patrick Parenteau, Professor of Law, Vermont Law School
This article is republished from The Conversation under a Creative Commons license. Read the original article.
The Supreme Court broke it’s own rules by deciding a moot case. The Obama era regulations were never in force
On the contrary the rules had yet to go final and be enforced. Pending is the opposite of moot. EPA’s proposal was so radical the Court decided not to wait. Good job.
Stay from Supreme Court occurred in 2016 for Obamas plan ( so no rush) and the EPA repealed the plan 2019 ( under Trumps Pruitt)
The Court itself said that yes its no longer in existence ( beyond the stay) but the ‘power shifting ‘ part might come back
‘1. This case remains justiciable notwithstanding the Government’s contention that no petitioner has Article III standing, given EPA’s stated intention not to enforce the Clean Power Plan and to instead engage in new rulemaking.’
I dont know how Kavanaugh was even allowed to decide the case with Scotus as he was on the DC Circuit court of Appeals ( until 2018) where the original case was heard
‘“The earth is warming. Humans are contributing,” said Judge Brett Kavanaugh, another George W. Bush appointee. “There is a moral imperative. There is a huge policy imperative. The pope’s involved.”
Final decision here
West Virginia vs EPA
https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf
Case History here
http://climatecasechart.com/case/west-virginia-v-epa/
OMG.
Not only did we get slapped with new budget-breaking, inflationary spending on boondoggle anti-environmental wasteful projects while turning the IRS into a homeland army. That wasn’t enough.
Our brilliant legislators also legally leveled CO2 a poison. That missing piece of insanity was the only roadblock to the nutty Left running the US off the IPCC led cliff.
With this one clause I fear the levee is breached. Enjoy the decline, America.
There is almost no climate spending in the IRA, maybe $30 billion. The rest is tax credits that may never happen. In fact the IRA May kill renewables tax credits.
https://www.cfact.org/2022/08/23/renewables-subsidy-chaos-coming/
“almost no [] spending [], maybe $30 billion”. A billion here, a billion there, and soon you’re talking real money.
That is compared to the $330 billion usually quoted. Less than 10% is a lot less.
When you are running trillion dollar deficits “tax credits” are spending because they require borrowed money.
There will be a new Congress in about 5 months.
Said Congress is unlikely to roll anything back, since Dementia Joe can veto anything that doesn’t follow the progressive playbook.
Maybe they can at least stop the bleeding, though.
re: “Our brilliant legislators”
Democrats. You forgot to insert the word ‘democrat’. As in, “Our brilliant democrat legislators …”
“But at least now there is clear legislative direction from Congress for the EPA to take bold action needed to meet the profound challenge of climate change and transition to a sustainable economy”
Another legal academic making claims on a scientific matter without citing any evidence of a scientific nature. Doesn’t that violate the basic tenets of both civil and criminal law? No harm cited, no compensation awarded. No dead body, no murder conviction. These are the legal standards for making a judgement.
This guy violates his own standards of logic.
Logic? Com’on man, its climate change, you just gotta believe.
Much ado about nothing. EPA has had the authority to regulate CO2 and the other GHGs since 2007. There is no way to do it for existing power plants under the Clean Air Act. They tried to reinvent the law and got shot down. The IRA does not change this.
There is a dramatic and alarming tendency of the Left to weaponize government agencies to carry out their various delusional ideas. When their idiot voters are freezing and hungry in the dark maybe we will see some sanity return? Don’t wait for it. Where’s the new Dick Carver when you need one?
Ooh, I don’t like to sound of a dick carver!
With the lack of rain over most of the US this summer; it appears that the greatest green houses gas, water vapor, needs no regulations from the EPA.
What can be done by reconciliation can be undone by reconciliation. Elections matter.
Not banning the EPA (and every Federal agency) from regulating CO2 or any compounds as a GHG was the biggest failure of Trump/McConnell/Ryan administration. They had their chance to end the fraud but they did nothing.
And given a second chance after the 2024 election I doubt they will push back on the subsidy farmers of “renewable energy” and EVs.
McConnell and Ryan had associates (probably themselves too) that had their snouts deep in the green trough. RINOs have to go.
FJB, RINOs, Demoncrats, and all their cronies.
If everybody goes, who is left? Are there enough purists in the world to elect even a local dog catcher, let alone both houses of Congress and the Presidency? The answer is obviously no.
Our Founders set up our government so that no single interest group of “purists” can run the rest of us ragged. Any big changes require compromise and creating allies who are not equally pure like you.
I don’t want everybody to go, just Biden, RINOs, Demoncrats, and all their cronies.
The country would do much better with less government – especially the ones that don’t have the citizen’s interest as the primary goal.
Actually, you have it backwards. Until this bill, the deceptively titled “Inflation Reduction Act”, the air pollution law had never defined CO2 as a “pollutant”. The relevant law was the 1990 Clean Air Act Amendments. One Congress cannot forbid a later Congress to enact or change existing laws.
Congress can change any law they want to if the President doesn’t veto their change, or if they are able to override a veto, which is possible but virtually infeasible on any divisive Dem vs. Rep issue.
So as I wrote elsewhere, if Republicans want to change the law that was just enacted, they need to take over both houses of Congress and have a Republican President. That is feasible – that was the case in 2017-2019. But then the Pubs lost the 2018 mid-term House election and then lost both the Senate and the White House in the 2020 elections.
Elections have consequences.
It’s one thing to claim that carbon dioxide is a pollutant- it’s another thing to define it as a pollutant.
Unfortunately the 1990 Clean Air Act amendments added causing climate change to the definition of pollutant. So even lukewarmers have to accept that it is a pollutant under the Act.
hmmmm…. I suppose the alarmists would claim that cutting down a forest will contribute to climate change- so, cutting down a forest to install a solar or wind farm would thus be a pollutant- thus, it should be forbidden to install such “clean energy” on forest land.
IMHO, the EPA will use wording contained in the Inflation Reduction Act as a backdoor justification for using the Clean Air Act Section 108 NAAQS process for adding CO2, methane, and other alleged GHG’s to the list of criteria pollutants.
See my comment on that score here.
Because CO2 is a well-mixed gas on a world-wide scale, using the NAAQS approach to regulate CO2 doesn’t make logical sense. However, that issue is neither here nor there as far as the Biden administration is concerned. They will do whatever they think they have to do to reduce our reliance on fossil fuel in America.
How to fix this whole fiasco? Cancel the agencies which are not justified in the US Constitution.
Yeah, right.
You won’t be able to drive your gas powered car to California, not that anyone wants to go there. Remember, you will own nothing so you won’t have a car.
Biden’s climate and economic advisors have said publicly and forcefully they will either bypass or ignore West Virginia vs EPA in ramping up their regulatory war on fossil fuels. How might they go about doing this?
The EPA has already established national ambient air quality standards (NAAQS) for six of the most common air pollutants — carbon monoxide, lead, ground-level ozone, particulate matter, nitrogen dioxide, and sulfur dioxide. These are called ‘criteria pollutants’ under the Clean Air Act.
The EPA has authority under the Act to add new criteria pollutants to the original list using a process described in Clean Air Act Section 108.
Climate activists in the environmental law community have argued for some time that the most effective means of enabling aggressive regulation of carbon emissions would be to add carbon dioxide, methane, and other GHG’s to the existing list of criteria pollutants governed under Sections 108, 109, and 110 of the Clean Air Act.
The Inflation Reduction Act contains provisions which could, in my opinion, be used as a backdoor justification by the EPA to do just that, to expand the list of criteria pollutants. The new criteria pollutants would include carbon dioxide, hydrofluorocarbons, methane, nitrous oxide, perfluorocarbons, and sulfur hexafluoride.
The Inflation Reduction Act contains this provision:
——————————————————–
Inflation Reduction Act, Section 60101. CLEAN HEAVY-DUTY VEHICLES.
The Clean Air Act is amended by inserting after section 131 of such Act (42 U.S.C. 7431) the following:
(4) Greenhouse gas.– The term ‘greenhouse gas’ means the air pollutants carbon dioxide, hydrofluorocarbons, methane, nitrous oxide, perfluorocarbons, and sulfur hexafluoride.
(5) Zero-emission vehicle.–The term ‘zero-emission vehicle’ means a vehicle that has a drivetrain that produces, under any possible operational mode or condition, zero exhaust emissions of–
(A) any air pollutant that is listed pursuant to section 108(a) (or any precursor to such an air pollutant); and(B) any greenhouse gas.”.——————————————————–
Note that the Clean Air Act already contains the same definition for ‘greenhouse gas’ as does the Inflation Reduction Act. The definition in the CAA reads as follows:
——————————————————–
Clean Air Act §7545. Regulation of fuels
42 U.S.C. 7545(o)(1)(G)
(G) Greenhouse gas
The term “greenhouse gas” means carbon dioxide, hydrofluorocarbons, methane, nitrous oxide, perfluorocarbons, sulfur hexafluoride. The Administrator may include any other anthropogenically-emitted gas that is determined by the Administrator, after notice and comment, to contribute to global warming.
——————————————————–
The Inflation Reduction Act (IRA) refers to this same definition in eight separate places. It refers to Section 108 of the Clean Air Act in four separate places.
IMHO, the EPA will use the presence of these references inside the IRA as justification for adding carbon dioxide, hydrofluorocarbons, methane, nitrous oxide, perfluorocarbons, and sulfur hexafluoride to the list of criteria pollutants which can be regulated under CAA sections 108, 109, and 110.
Doing so will enable the application of a number of regulatory tools which can place enormous additional pressure on America’s carbon fuels industry.
The argument is made that a NAAQS for carbon dioxide makes no sense because CO2 is a well mixed gas on a worldwide scale. However, as it concerns the Biden administration, this argument is neither here nor there.
Biden’s lawfare strategy for prosecuting his war on carbon is to use the threat of regulation as a means for discouraging investment in fossil energy; for raising the price of fossil energy to the consumer; and for either directly or indirectly limiting its supply.
Look for a blizzard of new anti-carbon regulations to be issued regardless of the SCOTUS ruling on the major questions doctrine and on West Virginia vs EPA; and regardless of the impacts on the price and availability of energy in America.
Years of litigation will ensue. But the damage to America’s energy supply will already have been done well before that litigation has been resolved in the courts.