Conventional wisdom has it that the federal legislative process is broken and that, no matter how urgent the need the American people can no longer rely on the U.S. Congress to adopt legislation to promote the public interest. In the area of environmental protection, this characterization has some basis in reality.
Congress has not updated key environmental legislation in decades. It has failed to do so despite significant changes in the nature of the problems posed by polluting activities, the scientific knowledge about the effects of pollution and available means of curtailing it and the enormous risks to public health that inaction will create.
Congress has never passed a comprehensive bill to address the adverse public health effects and disruption to ecosystems upon which we all depend that stem from climate change. But in a development that somehow largely escaped public notice, Congress recently took an important step toward filling this legislative vacuum. In doing so, it may have created a blueprint for overcoming some of the obstacles that have stymied past efforts to pass climate change legislation.
In August, with relatively little fanfare, President Biden signed into law the Inflation Reduction Act. While the act’s provisions do indeed have the potential to reduce inflation, it also represents the most significant measure Congress has ever adopted to combat climate change. The act’s measures to mitigate climate change have attracted some attention in the press, but what has been largely missing has been an analysis of its potential to deliver important protections against the myriad adverse public health consequences that scientists have linked to climate change. In an article published this week in the New England Journal of Medicine, I describe those benefits and the novel policy tools that the Inflation Reduction Act relies on to achieve them.
Scientific studies have identified a long list of adverse health effects for which climate change is responsible. To name just some, these include increased incidence of asthma and other respiratory diseases, cardiovascular disease, heat-related illness, foodborne contamination, mental health and stress-related disorders, neurologic disorders, and infectious diseases as increasing temperatures allow insects and other carriers to survive in previously inhospitable areas. Moreover, these health risks are not evenly distributed, hitting socially vulnerable populations — people with low household income and members of historically marginalized racial and ethnic groups — the hardest.
This lengthy list of climate-linked health problems is not news. Scientists have known about them for a long time, and so have government policymakers. Yet, until now, Congress has been unable to muster enough votes to enact legislation to address the situation. The Inflation Reduction Act changed that dynamic, overcoming the inertia and opposition that has thwarted efforts to pass climate change legislation dating back to at least 2009. The act provided a more politically feasible foundation for efforts to abate climate change and reduce its public health effects than previous, failed proposals.
Previous congressional efforts to mitigate climate change relied on mandatory emission limits on greenhouse gases which are largely responsible for rising temperatures and associated climatic changes. They supplemented these traditional pollution reduction mandates with a market-based mechanism that emerged decades ago as a promising environmental policy tool — a cap-and-trade program.
That approach never attracted sufficient political support to be viable, and it almost certainly would not have succeeded this time either. Legislators who understood the need for action to abate the public health threats posed by climate change understood that. They, therefore, chose to try something different in the Inflation Reduction Act. The act relies instead on a combination of carrots, sticks and direct federal investments to move the country’s industries away from greenhouse gas-generating activities towards those that are less polluting and dangerous to public health.
The new approach creates positive incentives to reduce emissions in the form of tax credits and federal grants for businesses and individuals willing to assist in shifting the country to cleaner forms of energy production. This approach attracted the support of some legislators who likely would have refused to vote for legislation that relied primarily on traditional regulatory commands, even if they were supplemented by flexible market mechanisms like emissions trading.
In addition, reliance on tax and financial incentives was attractive because the federal courts have become increasingly hostile to the use of regulation as an environmental protection device. That hostility was on prominent display in the Supreme Court’s decision last summer in West Virginia v. EPA. In that case, a divided court restricted the authority of the Environmental Protection Agency under the Clean Air Act to reduce greenhouse gas emissions from one of its largest source categories, electric generating plants. The court’s analysis creates a land mine for any federal agency that seeks to create novel regulatory strategies for addressing developing crises such as climate change.
Reliance on financial incentives such as tax credits has its risks. It is possible that the Inflation Reduction Act’s incentives will not yield all of the desired outcomes. It is hard to predict how people will respond to such incentives. Within a few years, however, it should be possible to begin measuring the impacts of the new law to see if it’s doing what its sponsors hoped it would do. It will be interesting to see how many businesses claim the act’s tax credits, whether sales of electric vehicles noticeably increase and whether reliance on clean energy sources such as solar and wind skyrockets.
The Inflation Reduction Act represents an encouraging legislative effort to mitigate the broad array of negative health consequences that result from climate change without triggering the reflexive opposition that tends to be directed at traditional regulatory mechanisms.
It is important to understand that the act isn’t just about slowing down the melting of ice to preserve Arctic ecosystems that are far away from most Americans’ daily concerns. Although it is well positioned to do that, it will also help reduce the extent to which the American people will suffer the increasingly serious adverse health effects that stem from climate change and its consequences.
Robert L. Glicksman is the J.B. & Maurice C. Shapiro Professor of Environmental Law at The George Washington University Law School.