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Steven Ferrey

Abstract

The 2022 Biden Inflation Reduction Act (“IRA”) and the 2021 Infrastructure Investment and Jobs Act (“IIJA”), together providing for an unprecedented $1.7 trillion in spending, were enacted to construct a sustainable legal U.S. exit ramp from what the Secretary-General of the United Nations recently described as a “highway to climate hell with our foot still on the accelerator.” This Article analyzes a critical legal missing link in these Acts that is now causing the U.S. economy to do the opposite of its intended climate change mitigation, given: • A necessary eight-fold increase in current renewable electric power, requiring adding the entire amount of existing renewable power again every eighteen months; • A shortage of rare-earth and critical minerals now required in quantities ten-to-fifteen times greater to produce one unit of renewable electricity compared to current power; and • How the federal IRA plan is being legally blocked by hundreds of cities in thirty-one states,

notwithstanding the Constitution’s Supremacy Clause. The Supreme Court in 2022 announced its new “major questions doctrine” in West Virginia v. Environmental Protection Agency and applied it to limit presidential discretion regarding matters of electric power technology and climate change. States and cities are now deploying their constitutional authority, supported by Supreme Court decisions, to block a sustainable transition. The final two Sections of this Article design an alternative sustainable legal “bridge” within existing U.S. law that does not require any congressional action and that is immediately implementable at lower cost than business-as-usual. This decentralized legal bridge also features more efficient use of energy and can be implemented immediately by local governments, state governments, and the federal government. This legal bridge can span the widening gap between these new laws’ asynchronous and rapidly increasing electric demand compared to available interconnected zero-carbon renewable power supply until these two become re-synchronized. This legal bridge sustainably operates without worsening climate change.

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