In adversarial proceedings, it is seldom prudent to rely on your opponents’ assessment of the outcome. Alas, some conservatives seem inclined to believe Democrats’ self-serving spin about the Inflation Reduction Act (IRA) and its legal effects on the Supreme Court’s June 30 ruling in West Virginia v. Environmental Protection Agency.
The IRA calls carbon dioxide (CO2) an “air pollutant” in certain provisions that “amend” the Clean Air Act (CAA). Citing that language, IRA supporters such as Sen. Tom Carper (D-DE), one of the statute’s drafters, claim that West Virginia v. EPA no longer prevents the Environmental Protection Agency (EPA) from regulating emissions to restructure entire industries or sectors, as it sought to do through the Obama administration’s so-called Clean Power Plan (CPP), which the Court vacated.
Such reasoning is deeply flawed, as I explain in an article published this week in Real Clear Energy. The piece runs about 1,500 words. Here’s the short version.
Ever since Massachusetts v. EPA (2007), the Supreme Court has taken the position that CO2 is an “air pollutant” within the meaning of the CAA. West Virginia did not review or revise the Court’s position. Rather, West Virginia reviewed and vacated the CPP—a specific regulatory framework giving the EPA the powers of an industrial policy czar without a clear congressional authorization.
Carper et al. conflate the power to regulate CO2 emissions with authority to mandate big changes in significant portions of the U.S. economy, and then declare that the IRA’s description of CO2 as an “air pollutant” provides the missing clear authorization to rapidly decarbonize the U.S. economy. Such tortured logic is laughable.
West Virginia did not vacate the CPP because CAA Section 111 does not mention “carbon dioxide” but because the CPP was a plan to herd states into the market-restructuring greenhouse gas cap-and-trade programs Congress repeatedly debated and declined to enact during the George W. Bush and Barack Obama administrations.
The IRA provisions calling CO2 an “air pollutant” do not conflict with or overturn West Virginia v. EPA for another important reason. Every IRA provision that begins with “the Clean Air Act is amended” authorizes fiscal, not regulatory, measures. The authority to spend money, award tax credits, or impose emission fees does not create or expand any CAA regulatory authority.
In short, nothing in the IRA displaces, supplants, or rebuts any premise on which the Court decided 6-3 to vacate the CPP and repudiate its expansive legal theory.
For more detail, see my piece in Real Clear Energy.
This post was updated on September 1, 2022.