Abstract

The Clean Air Act is one of Congress's greatest success stories. The major piece of legislation, passed in the context of environmental and public health crises, has driven technological change through regulation that has dramatically improved air quality even in a prolonged period of economic growth. In the context of climate change, however, despite many efforts since the 1990s, the Clean Air Act has not proven to be a successful legislative tool. Instead, the Act has faced complex obstacles in the statutory language and a trend in Supreme Court jurisprudence-leading up to and including the June 2022 decision in West Virginia v. EPA-that shows an increasing skepticism of administrative agency authority.

Then, in August 2022, the Inflation Reduction Act (IRA) broke through the congressional logjam. The IRA is the most significant piece of climate legislation in U.S. history, with a commitment of $369 billion in spending on energy security and climate change programs over the next decade. Research groups estimate that the IRA will result in major reductions in U.S. greenhouse gas emissions, bringing them nearly fifty percent below 2005 levels. The IRA is a spending bill, not a regulatory one, reflecting a highly constrained legislative environment in which filibuster rules and partisan intransigence mean that policy-by-spending is the only feasible option, not only for environmental issues but a broad range of social programs and priorities. Yet the IRA-despite these characteristics and the legislative and judicial context-will have important regulatory consequences.

The Clean Air Act gives the Environmental Protection Agency (EPA) statutory authority to set strict standards that are, in part, based on a determination of what clean technologies are already available. This is done through the "adequately demonstrated" standard in Section 111 and other requirements to balance environmental benefits with cost and/or technological feasibility. As the IRA works to lower costs and increase the market share of clean energy technologies, the EPA will be able to promulgate stronger technology-based standards in the next decade-both more stringent in nature and more legally secure-than would otherwise be the case. Despite the limitations of spending policy, the IRA can play an important role in bringing about an effective energy transition, allowing the EPA to return to the original idea of "technology-forcing" in the Clean Air Act and consolidate, through prescriptive regulation, the technological advances ushered in by federal spending programs.

Comments

65 B.C. L. Rev. 1 (2024)

Keywords

United States Environmental Protection Agency, Clean Air Act (U.S.), Price inflation, Climate change, Public health

Date of Authorship for this Version

1-2024

Volume Number

65

Issue Number

1

First Page

1

Last Page

54

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