The transition away from GHG-generating activities will not be immediate. For example, the IRA mandates that federal lands and offshore waters used for renewable-energy development also be available for oil and gas development. It requires the Department of the Interior to conduct oil and gas lease sales on the Outer Continental Shelf. These activities will actually generate more GHG emissions. However, the public health benefits resulting from the IRA’s large infusion of money into combating climate change should dwarf the incremental adverse health consequences of these temporary lifelines to fossil-fuel producers — an estimated 28 tons of GHG emissions will be avoided for each ton generated by the oil and gas provisions.10 Given that the inclusion of these lifelines probably attracted critical votes from congressional allies of the oil and gas industry, the trade-off seems well worthwhile. The government should ensure, however, that fossil-fuel production does not disproportionately affect disadvantaged communities already exposed to significant health risks.

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

Congress’s decision to largely avoid regulatory tools is understandable and may have been necessary to muster sufficient support for any climate-related law. The Supreme Court restricted the EPA’s authority under the Clean Air Act to reduce GHG 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 invalidated a regulatory approach that originated in the Obama administration’s Clean Power Plan (CPP)16 that sought to shift electricity away from fossil-fuel use toward production that doesn’t generate GHG emissions, such as wind, solar, and hydropower. The Court endorsed the more limited interpretation adopted by the EPA during the Trump administration, which replaced the CPP with the weaker Affordable Clean Energy Rule.17 The decision may significantly curtail the EPA’s flexibility in crafting policies to mitigate climate change. At best, the agency is likely to be much more cautious in wielding its regulatory authority under the Clean Air Act, to avoid another judicial reversal.

Congress could have restored the authority that West Virginia eliminated. But regulation of activities that contribute to climate change has proven as politically divisive as any aspect of the pollution-control regimen that Congress began creating in 1970. Delegation of regulatory authority would generate stauncher opposition from many legislators than use of tax credits and other monetary handouts. Notwithstanding the diminishing number of regulatory critics willing to deny the link between anthropogenic GHG emissions and climate change, that political chasm probably won’t close any time soon.

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

In addition, the EPA’s approaches to regulating GHGs have altered so dramatically with every change of presidential administration in the past 15 years that the policy shifts have been whiplash-inducing. The entry, exit, and reentry by the United States into and from the Paris Agreement on climate change is emblematic of these dizzying reversals. Even if the IRA had authorized expanded regulation, a future presidential administration skeptical of the value or propriety of government intrusion into the free market might well have declined to exercise it. Subsidies also alter the way markets operate, but they have never evoked the enmity that environmental regulation has among industries and their political allies.