"Green Subsidies in the Inflation Reduction Act: Advancing the Energy Transition or Undermining WTO Rules?"

INTRODUCTION 

The regulation of free trade, as structured following the Marrakesh Agreement that  established the WTO in 1995, has been intertwined with environmental protection, making it  almost impossible to conduct a comprehensive study of International Trade without addressing  its intersections with International Environmental Law,2especially after discussions influenced  by the Appellate Body’s reasoning in cases such as US - Shrimp3or EC - Seal Products.4 

This intersection was to some extent incorporated into the drafting of the Agreement on  Subsidies and Countervailing Measures (ASCM), also adopted in 1995, to regulate the use of  subsidies by contracting parties, ensuring that domestic policies aimed at environmental  protection would not serve as a trade barrier. 

It is important to note that subsidies are not inherently detrimental to free trade; they  can align with it when addressing market failures in strategic sectors. Among the justifications  for state subsidies, the use of “green subsidies” has gained prominence. These aim primarily to  address market failures to accelerate the green revolution in adopting countries, focusing on  combating climate change.5 

Green subsidies are framed within internationally established commitments,  particularly under the United Nations Framework Convention on Climate Change and, more  recently, the Paris Agreement, where signatories set goals to curb climate change under the risk  of existential threats. 

In this scenario, the United States adopted the Inflation Reduction Act (IRA) in 2022,  aiming to implement the largest investment package for combating climate change and to meet  its international commitments. Designed to enable the country’s energy transition, the IRA  represents a landmark initiative. 

“Energy transition” refers to the shift from a reliance on polluting and non-renewable  energy sources, such as oil and natural gas, to clean and renewable sources, such as solar, wind,  and geothermal energy. 

Despite being guided by the goal of achieving energy transition and reducing  environmental harm caused by heavy reliance on fossil fuels, the IRA has provoked reactions  due to the substantial volume of subsidies adopted, raising concerns about its effects on  international free trade in the clean energy sector. 

This research seeks to investigate such reactions, aiming to answer two main questions:  Will the adoption of green subsidies, as outlined in the IRA, enable a just and effective energy  transition? Moreover, are the ASCM rules adequate to address the urgency of combating  climate change, or do they act as obstacles for the achievement of such a goal? 

Studies such as this contribute to the assessment of the (in)compatibilities of the current  international trade regulatory system with environmental protection and climate change 

mitigation objectives. The hypothesis posited is that the existing system, along with the rules  contained in the ASCM, is not suited to the pressing climate challenges at hand. 

1 THE QUEST FOR A DEFINITION OF SUBSIDIES IN THE MULTILATERAL  TRADE SYSTEM 

While the General Agreement on Tariffs and Trade (GATT) laid the groundwork for  the rules governing international trade, it was with the adoption of the Agreement on Subsidies  and Countervailing Measures (ASCM) that a definitive concept of “subsidy” was established.  This brought legal certainty both to the use of subsidies and the responses to them through the  application of countervailing measures.6 

The ASCM defines a subsidy as involving: (i) a financial contribution; (ii) by a  government or public body; (iii) that entails a transfer of funds, or foregone or uncollected  public revenue.7 

In addition to being a form of government financial support, subsidies must also be  “specific” to authorize a regulated response under the ASCM. A subsidy is considered specific  when it confers a market benefit to an industry (or group of industries) through a financial  contribution from the State.8 

To determine whether a subsidy is specific, the following factors can be considered: (i)  whether it is used by a limited number of companies or predominantly by certain companies;  (ii) whether it is granted in disproportionately large amounts to certain companies; (iii) how it  is granted; and (iv) whether it is limited to certain companies within a specific geographic  region. Analyzing these elements together may provide evidence justifying the application of  countermeasures to mitigate the harmful effects of a subsidy. 

The ASCM also categorizes subsidies into three types, based on their specificity and  potential for harm, each permitting a distinct response from other WTO Members: actionable  (or “yellow”), non-actionable (or “green”), and prohibited (or “red”). 

For a subsidy to be actionable, and thereby authorize the application of  countermeasures, it must be specific. Conversely, if a subsidy is general, its use cannot directly  be considered an unfair interference in international trade.9 It is worth noting that even specific subsidies may fall into the category of “non actionable” subsidies. These are subsidies justified by greater purposes beyond free trade, such  as the pursuit of sustainable economic development.10 

However, merely being aimed at such purposes is insufficient for categorization as non actionable. For instance, a subsidy for research and development (R&D) activities must not  cover more than 75% of research costs to qualify as non-actionable. Similarly, subsidies  intended to help industries adapt to new regulatory requirements should not exceed 20% of the  total adaptation cost.11 

This latter category is particularly relevant in the current context of environmental and  regulatory requirements aimed at combating climate change, stemming from commitments  made by various economies under the 2030 Agenda12 and the Paris Agreement.13 

As for actionable subsidies, these initially do not appear to harm or damage the  importing country’s domestic industry. However, as their name implies, they may result in  adverse effects, justifying at least the initiation of investigations to determine whether a  reaction from the affected party is warranted. 

Finally, there are the “prohibited” subsidies, which due to their harmful effects,  immediately authorize the application of countermeasures under the ASCM. Article 3 of the  ASCM defines these as subsidies: (i) Contingent on export performance; or (ii) Contingent on  the preferential use of domestic over imported products, individually or as part of a set of  conditions.14 

Despite the existence of these rules, the increasing use of subsidies in international  trade—subsidies being the most prominent form of trade policy since 200915—raises the  question of whether the ASCM’s regulatory framework remains adequate to meet the current  demands of international trade. 

This question becomes even more pertinent with the growing use of so-called “green  subsidies,” which are aimed at financing projects for the ecological transition of economies.  These subsidies seek to reduce the consumption of polluting gases by transitioning energy use  to clean and renewable sources. 

10 Ibid.Evaluating the adequacy of the ASCM’s rules in responding to countries’ use of green  subsidies is crucial to determining whether reform of the current multilateral system regulating  subsidies in international trade is necessary. 

2 GREEN SUBSIDIES: STATE FINANCING OF THE ENERGY TRANSITION AS  STRATEGY FOR COMBATING CLIMATE CHANGE 

Currently, there is no specific regulation that defines "green subsidies." Nevertheless,  the use of interventionist trade practices to achieve environmental protection and, more  specifically, the energy transition is not only common but dates back to the first oil crisis in the  1970s, when investments were allocated to the development of solar and wind energy.16 

In this context, specialized doctrine is often consulted to provide a definition of “green  subsidies.” As proposed by Charnovitz,17 green subsidies result from the allocation of public  resources aimed at the development of green technologies. This includes investments in  renewable energy sources or sustainable building materials with the objective of reducing the  impact of climate change. They can therefore directly influence market operations by  addressing failures identified in sectors deemed strategic by state actors or by creating entirely  new markets. 

In this regard, it is important to recall the concept of "market failures," which can be  understood as inefficiencies in resource allocation by the market when acting without  intervention.18 These failures prevent the market from achieving efficiency from an economic  perspective. Active state intervention is thus required to reallocate resources in a way that  corrects these failures and achieves efficiency. 

Regarding market failures in the green technology sector—critical for enabling a  transition from polluting and finite energy sources to clean and renewable ones—Mazzucato  categorizes them into two types: supply-side failures and demand-side failures.19 

Demand-side failures relate to the development of a consumer market for the emerging  sector. Given the long-standing reliance on fossil fuels and the established infrastructure  supporting them, creating a new culture of clean energy consumption is necessary.20 Supplyside failures, on the other hand, pertain to the high costs associated with adopting clean  technologies. These include developing new infrastructure, workforce training, and conducting  research to create more advanced and low-carbon technologies.21 

Public investments, therefore, primarily address supply-side failures by introducing  mechanisms that reduce costs. In the long term, this fosters the proliferation of green  technology to the point where state intervention and private sector activity strike a balance,  with the former becoming increasingly less necessary.22 

Thus, motivated by environmental protection, states may adopt unilateral trade policy  measures, including subsidies, which can give rise to apparent conflicts with international trade  rules that are fundamentally based on removing barriers to free trade.23 

3 THE INFLATION REDUCTION ACT IN PROMOTING THE ENERGY  TRANSITION: COMPATIBILITY WITH THE SCM AGREEMENT? 

Given the urgent need for States to adapt to the commitments made internationally in  the fight against and mitigation of climate change, Agreements, Conventions, and Resolutions  also need to be reflected in domestic rules to gain applicability in the internal legal order and  in the design of public policies. 

In this scope, the U.S. Federal Government proposed and approved, in August 2022,  the Inflation Reduction Act, which, despite its name, represents the largest package ever  adopted in U.S. regulation to finance the country’s "green revolution," with the ultimate goal  of achieving net-zero carbon emissions by 2050.24 

Thus, having been signed on August 16, 2022, the IRA provides for a total allocation  of approximately $369 billion over ten years for energy transition and climate resilience  building, focusing throughout its text on strengthening the U.S. economy and jobs. 

This amount is divided into a series of incentives established by the Government to correct market failures in the clean energy and technology sectors, allowing the United States 

to achieve a high level of competitiveness in the sector, as well as influencing the population  to adopt clean energy sources. 

The first type of incentive—or subsidy—that can be mentioned is the direct provision  of grants and loans under more favorable conditions for clean energy production, such as  investments in the development of "innovative clean energy technologies," such as renewable  energy systems, carbon capture, nuclear energy, and the processing, manufacturing, and  recycling of critical minerals.25 

Regarding reducing carbon emissions in the transportation sector, the IRA also  provides, under loans and grants, up to $23 billion to boost the production of clean vehicles  and their components in the United States.26 

Grants are also provided to entities aiming to establish or expand manufacturing  capacity in projects within the energy supply chain, or to develop projects for the production,  transportation, blending, and storage of renewable fuels.27 

With respect to tax incentives, these primarily take the form of "tax credits," as well as  exemptions and reductions, allocated to, on the one hand, encourage the local production of  clean energy, and, on the other, stimulate its consumption by correcting market failures in  demand, reducing the final price borne by the consumer.28 

The tax incentives are divided into the following areas: i) tax credits for innovation and  clean energy production; ii) credits for transforming the transportation sector; iii) credits related  to carbon capture and sequestration; iv) credits aimed at the green hydrogen production chain;  and v) credits for the construction and housing sector. 

Finally, there are also investments through direct federal spending, as provided for in  the IRA to, among other objectives, fund research projects in the production of cleaner fuels  and for improvements in laboratories and universities.29 

As can be attested by observing the investment mechanisms in the energy transition  provided for by the IRA, their characteristics meet the requirements to qualify as subsidies  under the SCM Agreement: they are granted through a government contribution, confer 

comparative advantages to beneficiaries, and are specific to industries when aimed at fostering  renewable energy sources. 

However, the mere creation of a subsidy by a State that is a signatory to the SCM  Agreement is not, in itself, prohibited, being recognized as an essential policy to promote the  development of important sectors, especially in the context of the climate transition, which face  market failures that would prevent their development without government support.30 Therefore,  other elements contained in the IRA policy must be considered. 

Regarding the specificity criterion, depending on which subsidy contained in the IRA  is being analyzed, this characteristic can be noted. This is present, for instance, in the tax credit  provided for in Section 13101, which benefits those who produce electricity from renewable  sources, or in the credit aimed at domestic manufacturing of components in the solar or wind  energy chain, inverters, batteries, and critical minerals. 

Thus, the status of "subsidy" for many of the provisions contained in the IRA is  apparently clear. However, the question remains: are they contrary to the subsidy regulations  under the SCM Agreement? 

The catalytic force of the subsidies contained in the IRA to attract new investments to  the United States is evident,31 a fact that raises concerns in other economies, fearing the loss of  investments that could be applied to their own energy transitions, which has been intensified  recently with the increase in import tariffs on electric cars and their inputs from China.32 

Although it is still difficult to point to a possible characterization of the IRA from the  perspective of "yellow" subsidies, it is clear from its inception that some subsidies fall under  the "red" category, therefore outright prohibited under SCM rules. 

As recalled, some provisions of the IRA include domestic content requirements, which  mandate that, to receive the desired subsidy, the use of domestic materials, equipment, or raw  materials must be adopted.33 

Domestic content requirements have already been the basis of disputes within the WTO,  notably in the Canada - Measures Related to the Feed-In Program,34 where Japan and the  European Union, the claimants, alleged that the Canadian province of Ontario was violating  the national treatment principle by allowing the conclusion of electricity purchase contracts  from clean energy sources at more favorable prices due to local production.35 

Such domestic content requirements in the IRA appear, for example, in the increased  tax credit for renewable electricity production, which may grow with the use of minimum  amounts of domestically manufactured goods. The same applies to credits for clean vehicle  buyers, where the vehicle must be assembled in the United States, and the minerals used in its  production must be extracted in the country or another with which it has a free trade  agreement.36 

For this last provision, only buyers of vehicles without batteries containing components  manufactured or assembled in a "foreign entity of concern" may qualify for the tax credit.37 As noted, beyond these domestic content requirements being in direct opposition to  Article 3 of the SCM Agreement, which prohibits subsidies linked to "the preferential use of  domestic products over imported products,"38 they also expressly oppose one of the  foundational principles of the multilateral trading system under the GATT: the principle of  national treatment. 

Under the national treatment principle, imported products must receive the same  treatment as domestic products after being imported, to prevent trade barriers from being  established, creating comparative advantages for their domestic counterparts.39 Under the terms set out by the IRA for granting subsidies in the context of the energy  transition, however, this rule is not observed, with a clear preference being given to domestic  products, inputs, industries, and manufacturing.40 

Similarly, by allocating investments conditioned on the use of domestic content, the  IRA also conflicts with principles contained in the Agreement on Trade-Related Investment  Measures (TRIMS), which, in its Article 2, states that "no Member shall apply any investment  measure related to trade in goods that is inconsistent with Articles III or XI of GATT 1994."41 

In its structure, therefore, the IRA demonstrates how the U.S. Government sought  alternatives to its high commercial dependence, particularly on China, in production chains  critical to the energy transition.42 

In contrast to this preference for local sources, it cannot be ignored that the IRA also  provides preferential treatment to countries with which the United States has free trade  agreements in the case of tax credits for purchasing electric cars.43 This choice, while  demonstrating that the United States is not completely closed to trade relations with other  countries, simultaneously evidences the weakening of the multilateral trading system and a  preference for bilateral alternatives, while putting into question the principle of the most favoured-nation.44 

Considering the intention of this research to reflect on the adequacy of the SCM  Agreement rules to the current circumstances of international trade, two questions arise: will  the continuous adoption of green subsidies enable countries to achieve a truly just and effective  energy transition? Furthermore, do the rules of the SCM Agreement remain adequate to govern  the current race for the green industrial revolution? 

Firstly, it is certain that the IRA, along with other regulations that have been multiplying  to foster the energy transition, carries with it the potential – although not the certainty – to accelerate this transition, allowing internationally agreed commitments to combat climate  change to be met, at least partially.

At the same time, by addressing market failures that are easily identifiable in the clean  energy/renewable energy sector, the IRA and similar measures in other jurisdictions could  repeat patterns already observed when governments corrected market inefficiencies: reducing  the cost of products and services, making them accessible to a larger number of consumers,  and promoting well-being gains that extend beyond consumption to encompass the common  good of a clean and healthy environment.45 

On the other hand, a chain reaction of protectionist and unilateral measures could,  contrary to what is desired, further weaken supply chains already vulnerable to economic and  geopolitical impacts, hindering access to materials essential for the energy transition, while  slowing the urgency needed to combat climate change and leading to short-term price increases  for these materials.46 

Additionally, if countries disadvantaged by the IRA opt to adopt countermeasures  against the subsidies, in a unilateral manner, a rise in the prices of products crucial for the  energy transition may also occur, adding another difficulty for their acquisition and delaying  climate change mitigation efforts,47 while also creating new obstacles for further agreements  and cooperative efforts against climate change.48 

Lastly, the adoption of protectionist policies could concentrate the technologies  necessary for the energy transition in developed countries, thus determining which nations  achieve the transition and which are denied access to it, directly contradicting the goals of a  just transition.49 

This analysis cannot be conducted without considering the objectives established in  climate negotiations, which must be combined with countries’ efforts to maintain free and  barrier-free international trade, as evidence shows that its promotion tends to enhance the  welfare of participating nations.50 

In this respect, the adoption of green subsidies, as demonstrated, can be instrumental in  enabling the energy transition by correcting market failures in the energy sector, lowering costs,  fostering research, and creating jobs aligned with the new energy landscape.

However, the current SCM Agreement, adopted in 1995, is not aligned with the  internationally agreed objectives of combating climate change, particularly those reflected in  the Paris Agreement, which emphasizes the urgency of adopting measures to limit the global  temperature rise to 1.5°C by 2030.51 

Thus, applying the SCM Agreement as originally intended may lead, in the current  favorable environment for adopting green subsidies, to automatic countermeasures that only  further hinder access to essential goods for the energy transition. 

At the same time, to avoid further weakening the supply chains critical to the energy  transition, green subsidies must be regulated in a way that prevents the concentration of  technologies and the exacerbation of inequalities between developed and developing nations. 

In this context, cooperative approaches to adopting green subsidies, such as those  forged between the United States and its free trade agreement partners, should be expanded to  not only allow the free flow of essential goods for the energy transition but also to build  capacity, exchange knowledge, and boost competitiveness in the clean energy sector.52 

Simultaneously, WTO Members must base their trade policies aimed at environmental  protection on the principle of transparency so that the terms under which green subsidies are  adopted to drive the energy transition are clearly understood by all trading partners, reducing  information asymmetries.53 

Therefore, while the SCM Agreement remains unreformed to support the use of green  subsidies for promoting an effective and fair energy transition, a multilateral environment of  cooperation and mutual support in the fight against climate change can be enabled, avoiding  the exclusion of those most vulnerable to climate impacts and with the least geopolitical  influence. 

CONCLUSION 

When designing the rules governing the current multilateral trade system, although the  pursuit of sustainable development was adopted as one of its principles, the countries that  implemented the GATT and the SCM Agreement did not anticipate the level of climate urgency 

that could arise, making it essential to adopt measures potentially distorting to international  trade but crucial to curbing climate change. 

It is within this context that the adoption of so-called "green subsidies" has multiplied  over the years—types of government aid aimed at providing comparative advantages to their  beneficiaries, enabling the correction of market failures but, above all, focused on facilitating  and accelerating the green revolution. 

In this scenario, the United States adopted the IRA, reigniting the debate about the  adequacy of the multilateral trade regulation system to contemporary demands, particularly the  critical need to promote accelerated responses to climate change as a means of meeting the  targets established under agreements such as the Paris Agreement and ensuring adaptation and  resilience to climate events. 

Within these circumstances, the present research set out with the primary objective of  analyzing the adequacy—or lack thereof—of the current international trade regulatory system,  specifically the regulation of subsidies under the SCM Agreement, in addressing the climate  urgency scenario. Furthermore, it sought to investigate whether the continuous adoption of  green subsidies will indeed allow the countries utilizing them to achieve a just and effective  energy transition. 

The IRA emerged in international discussions, first and foremost, as a milestone in the  use of green subsidies. It was noted, however, that beyond seeking to foster this transition, the  IRA also revealed itself as a strong strategy to reduce U.S. dependence on the importation of  certain goods from third countries, as well as to promote the creation of green jobs and  strengthen the country’s energy sovereignty. 

Thus, based on the study conducted in this research, the evident inconsistency of the  IRA with not only the SCM Agreement but also the GATT is affirmed, as it completely  contradicts the foundational principles governing the WTO, particularly the principle of  national treatment. 

Nevertheless, it is understood that merely responding through countermeasures or  similarly protectionist regulations by other WTO members should not be the solution sought if  the goal is to align energy transition objectives with the perspective of climate justice. Such an  approach would only intensify the already fragile supply chains necessary for the energy  transition, making the geopolitical environment surrounding them even more unstable and  hindering the achievement of the climate change mitigation targets set under the United Nations  framework.

At the same time, promoting protectionist chain reactions risks causing a concentration  of technologies and technical capacity in countries that have the resources to join this race,  excluding underdeveloped nations from the agenda—even though they are the most exposed  to the harmful effects of climate change. 

With Donald Trump’s election in 2024, the outcome of the resort to policies such as the  IRA is even uncertain: while the recently elected president declares that his administration will  put an end to the IRA, its promises to the multilateral trading system are even more protectionist  and entirely apart from commitments to the combat against climate change.54 

Given this, it is understood that, although the prospect of reform within the multilateral  agreements under the WTO framework does not currently find a favorable geopolitical  environment, the pursuit of cooperative measures to combat the protectionist use of subsidies  should guide countries in their attempt to achieve energy transitions based on dialogue, and the  exchange of technical, regulatory, and technological capacity. 

It is, therefore, crucial that countries seeking a just, equitable, and inclusive energy  transition bring the discussion of adopting green subsidies to other forums that remain active  and open to multilateral dialogue, such as the G-7, the G-20, and the Conferences of the Parties,  where, in recent years, the main focus has been on reducing subsidies for the polluting fuel  sector. 

Only through a dialogical and cooperative approach can the pursuit of an energy  transition be realized at the pace necessary to ensure a real brake on climate change, as  established in the Paris Agreement. 

Finally, such dialogues and cooperation, if detached from an approach that includes  developing and underdeveloped countries, will only intensify the historical exclusion of the  Global South from economic and sustainable development, denying access to technology,  regulation, capacity, and protection. This approach ignores the fact that when climate change  manifests as destructive climate events, it does not discriminate among its targets.

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