Protection of public health by the Inflation Reduction Act — Provisions affecting climate change and its health effects | Daily News Byte


The transition from GHG-generating activities will not be instantaneous. For example, the IRA mandates that federal lands and coastal waters used for renewable energy development also be available for oil and gas development. Requests the Ministry of the Interior to sell oil and gas for leasing on the outer continental shelf. These activities will actually generate more GHG emissions. However, the public health benefits resulting from a large infusion of IRA money to combat climate change should dwarf the incremental adverse effects of these temporary bailouts on fossil fuel producers – an estimated 28 tons of greenhouse gas emissions will be avoided for every ton that produce provisions on oil and gas.10 Given that the inclusion of these lifelines likely drew critical voices from congressional allies of the oil and gas industry, the trade-off seems worthwhile. The government should, however, ensure that fossil fuel production does not disproportionately affect vulnerable communities that are already exposed to significant health risks.

The IRA’s determination to reduce greenhouse gas emissions might have been more pronounced, and its capacity to do so more predictable, if it had focused on expanding the EPA’s regulatory authority. The statute confirms Congress’ intent to treat greenhouse gases as air pollutants for purposes of the Clean Air Act’s regulatory provisions, and the Biden administration will continue to impose regulatory limits on GHG emissions from the automobile and industrial and manufacturing sectors. But the IRA’s power as a climate mitigation mechanism stems from its infusion of billions of dollars, in the form of tax credits and other forms of incentives, into the shift toward cleaner energy sources. The creation of these incentives does not guarantee the expected results, and the targeted shift may occur more slowly or more quickly than currently anticipated.

Congress’s decision to largely eschew regulatory instruments is understandable and may have been necessary to garner sufficient support for any climate-related legislation. The Supreme Court limited the EPA’s authority under the Clean Air Act to reduce greenhouse gas emissions from the electric utility sector, and potentially from other sources, in its recent West Virginia v. EPA decision.15 In that case, the Court struck down a regulatory approach stemming from the Obama administration’s Clean Power Plan (CPP).16 which sought to divert electricity from fossil fuel use to production that does not generate greenhouse gas emissions, such as wind, solar and hydropower. The court upheld a more limited interpretation adopted by the EPA during the Trump administration, which replaced the CPP with a weaker Affordable Clean Energy Rule.17 The decision could significantly reduce EPA’s flexibility in creating policies to mitigate climate change. At best, the agency is likely to be much more cautious in using its regulatory powers under the Clean Air Act to avoid another court reversal.

Congress could restore the authority which West Virginia eliminated. But regulation of activities that contribute to climate change has proven as politically divisive as any aspect of the pollution control regime that Congress began crafting in 1970. Delegating regulatory authority would draw stronger opposition from many lawmakers than using tax credits and other cash incentives. Regardless of the dwindling number of regulatory critics willing to deny the link between anthropogenic greenhouse gas emissions and climate change, that political chasm is unlikely to close anytime soon.

Finally, just as the adoption of tax and financial incentives does not guarantee the desired environmental results, neither does regulation. Noncompliance with federal environmental regulations is on the rise, as the former head of the EPA’s Office of Enforcement and Compliance Assurance, Cynthia Giles, confirmed.18

In addition, the EPA’s approaches to regulating greenhouse gases have changed so dramatically with each change of presidential administration over the past 15 years that the policy changes have been jarring. The entry, exit, and re-entry of the United States into and out of the Paris Agreement on climate change is emblematic of these dizzying upheavals. Even if the IRA approved the expanded regulation, a future presidential administration skeptical of the value or propriety of government intrusion into the free market might refuse to implement it. Subsidies also change the way markets work, but they have never generated the hostility that environmental regulation has among industries and their political allies.


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