Will a provision in the Inflation Reduction Act help Black communities get environmental justice?

Editor’s note: The following article is an op-ed, and the views expressed are the author’s own. Read more opinions on theGrio.

Is a key to helping protect Black communities from climate change hidden in the Inflation Reduction Act?

In what is being hailed as a victory for the Biden administration and Democrats, the Inflation Reduction Act has been framed as a “game changer” for a country grappling with the impact of climate change and environmental devastation and addressing the urgency to rein in greenhouse gases. The new law—which provides $370 billion in investments to fight climate change and is projected to lower carbon dioxide emissions by 40 percent over the next decade—contains a provision that will assist the Environmental Protection Agency in its fight for environmental justice.

This new law, which amends the Clean Air Act, defines carbon dioxide—the gas that heats the atmosphere and causes climate change when we burn fossil fuels–as an “air pollutant.” The New York Times reported that the wording in this legislation is key because it empowers the EPA to regulate greenhouse gases and promote renewable energy such as solar and wind power. Until now, the Clean Air Act did not specifically authorize the EPA to regulate carbon dioxide, but generally covered pollutants that “endanger human health.” And legal experts believe this turn of events will discourage future lawsuits challenging the EPA’s authority.

The IRA comes on the heels of the recent Supreme Court ruling in West Virginia v. EPA, raising questions as to whether the legislation remedies or even overturns the court decision.

In a 6-3 vote—reflecting a conservative majority placed on the court through funding from fossil fuel industry donors—the justices ruled that the Clean Air Act does not allow the EPA to regulate greenhouse gas emissions from power plants or force these plants to use cleaner energy sources. These gases cause the climate change we are all experiencing now, as some parts of the country suffer floods and others experience heatwaves, droughts, wildfires and the drying up of ancient rivers and lakes that have contained secrets for decades and even eons.

Environmental activists and advocates have slammed the high court’s decision for failing to protect disadvantaged and marginalized communities—particularly putting poor communities and Black, brown and Indigenous people in harm’s way—and jeopardizing the health of these populations. Finding themselves on the frontlines of the climate crisis, Black people, other people of color and low-income communities face the most environmental devastation from climate change and live in neighborhoods where polluting power plants are built.

While the West Virginia case was a setback for the EPA’s authority, it did not eliminate the agency’s authority to regulate greenhouse pollutants. However, it sets what Earthjustice, an environmental justice nonprofit, calls a “troubling precedent.” The Supreme Court invoked a rarely used legal doctrine called the “major questions doctrine,” which claims the court, not federal agencies, should interpret laws Congress passes of “vast economic or political significance.” This conservative legal concept requires Congress to speak clearly and in plain language when authorizing an agency to take sweeping actions. Another conservative legal concept, the nondelegation doctrine, claims Congress cannot delegate its powers to outside entities such as private organizations and agencies, and cannot allow agencies to shape regulations.

According to Democratic Rhode Island Sen. Sheldon Whitehouse, the fossil fuel industry’s legal organizations and think tanks hatch these theories, which have no constitutional foundation and serve as “factories where doctrines are crafted, reverse-engineered from the results the big donors want.” Fossil fuel-producing states are using these doctrines to challenge environmental regulations, just as tobacco companies blocked the Clinton administration from regulating cigarettes and smokeless tobacco, and the Supreme Court halted Biden’s COVID vaccine mandate earlier this year. And the Supreme Court—whose conservative justices owe their seats to Koch Industries and other Big Oil donors—is inviting these challenges, highlighting the need for federal court reform.

And although the IRA does not overturn West Virginia v. EPA, it boosts the agency’s power to cut greenhouse gases and could discourage some of these court challenges to its authority.

But as they say, the struggle continues. This new law is not the end of the story, and the Supreme Court is coming for the EPA and other parts of the government, in an effort to do away with environmental regulations and regulations in general—which will severely impact Black people.    

If you can judge a policy by who opposes it, then the reaction of Sen. Ted Cruz (R-Texas) to the IRA tells the story. Cruz said the quiet part out loud and gave away the secret plans when he said: “It’s buried in there … the Democrats are trying to overturn the Supreme Court’s West Virginia v. EPA victory.” The court is coming for the administrative state—which was the goal of Steve Bannon and the Trump administration—and also includes allowing the court to override Congress and the executive branch and kill all these regulations meant to protect people.

Cruz, who fled to Cancún when his state of Texas was freezing and out of electricity, has shown his lack of concern about the impact of climate change and pollution on vulnerable communities. Black residents of Houston are suffering from cancer and are demanding that Union Pacific clean up their neighborhoods that the railroad company contaminated with creosote—a cancer-causing substance used to preserve rail ties.

“The pollutants disproportionally sickening communities of color & shortening lives are the same ones driving the global #climatecrisis,” tweeted environmental justice activist Dr. Mustafa Santiago Ali, who welcomed President Biden signing the Inflation Reduction Act into law. Dr. Ali has also urged Biden to declare a climate emergency and noted that our community must continue to mobilize and strategize, just as we have struggled for every advancement, because “no one is coming to save us.”

“I wonder if the millions of climate activists, business owners, politicians, funders, Green groups & others who utilized their power & influence to get the #InflationReductionAct passed Will now use that same energy & privilege to get the #EnvironmentalJusticeForAllAct passed?” Ali added.

The Environmental Justice For All Act would amend the 1964 Civil Rights Act to allow communities to sue polluters for intentional discrimination and remedy the disproportionate impact of pollution on Black, Indigenous and other vulnerable communities.

Despite the praise from many environmental organizations and the benefits to Black communities touted by the White House, some activists and advocates representing low-income, Black, brown and Indigenous people rejected the IRA because of the compromises made to Sen. Joe Manchin (D-W.V.) to pass the bill, such as speeding up pipeline permits, funding for carbon capture technology promoted by Big Oil and committing to oil and gas lease sales.  

The Movement for Black Lives opposed the IRA for enabling the fossil fuel industry amid the “greatest crisis of our generation,” saying it is “woefully inadequate to meet the severity of the climate crisis and the needs of the Black communities on the frontlines of its impacts.” The group added the IRA “offers up Black lives to the oil and gas industry for political gain on a global scale. This is true for communities from Appalachia, to the Gulf South, those on the frontlines of climate impacts, and across the Global Black Diaspora.”

Black Millennials For Flint noted the IRA had significant wins along with compromises that made for “lackluster” environmental justice provisions, “which puts disenfranchised communities in even greater danger.” And the Indigenous Environmental Network called the IRA “a distraction from the need to declare a Climate Emergency while allowing polluting industries to continue business as usual.” And the Climate Justice Alliance said the IRA is not a climate justice bill.

All of this means that while the Inflation Reduction Act might be the most significant step America has taken on climate change—and Black people stand to benefit—we have much more work to do to get environmental justice. The movement is here, and we must be a part of it because our very lives depend on it.

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David A. Love is a journalist and commentator who writes investigative stories and op-eds on a variety of issues, including politics, social justice, human rights, race, criminal justice and inequality. Love is also an instructor at the Rutgers School of Communication and Information, where he trains students in a social justice journalism lab. In addition to his journalism career, Love has worked as an advocate and leader in the nonprofit sector, served as a legislative aide, and as a law clerk to two federal judges. He holds a B.A. in East Asian Studies from Harvard University and a J.D. from the University of Pennsylvania Law School. He also completed the Joint Programme in International Human Rights Law at the University of Oxford. His portfolio website is davidalove.com.

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