Battle of the branches — The Supreme Court went big by going small in yesterday's landmark climate case. The court axed an Obama-era plan to curb carbon pollution from power plants. But it didn't launch a full assault on the Environmental Protection Agency's authority to slash heat-trapping emissions, as some climate activists had feared. Some legal scholars say by keeping its ambitions modest, the high court has actually crowned itself king in deciding future climate cases — and left it utterly unclear what rules EPA is allowed to issue. "What I see is the Supreme Court really just grabbing more power for itself under the guise of suggesting that it's critical to keep the balance between the legislative and executive branches," said Jennifer Danis, a senior attorney at the libertarian-leaning Niskanen Center. The court's conservative majority argues that the executive branch overstepped its authority in drafting former President Barack Obama's Clean Power Plan. And when it comes to "major questions" of political or economic significance — like a national program to cut emissions — the days of giving federal agencies leeway to interpret ambiguous statutes however they want are over. The "major questions" doctrine is an attempt to rein in what the court sees as regulatory overreach. The problem is the court has yet to define exactly what counts as a major question, said Richard Revesz, an environmental professor at New York University Law School. "They presented the doctrine in a kind of amorphous and unbounded way," he said. "And we just don't know what this means for the next EPA regulation or the next regulation by any other agency." Conservative legal scholar Todd Gaziano said he agrees that the court has not "made perfectly clear" what constitutes a major question. "I sympathize with that concern, but the court usually decides these kinds of important matters in a case by case decision," said Gaziano, of the Pacific Legal Foundation. "But it is not a power grab for the court to properly decide that the original framework of our Constitution is still required." By that he means that Congress, not the agencies, writes the laws. "Congress has increasingly dodged its responsibility, and agencies have increasingly decided to try to engage in policy with the pen and the phone," he said. "This puts the pressure back on Congress." Long dead, embalmed and buried is President Joe Biden's massive social spending bill, which included a whopping $550 billion for cleaning up the grid and other climate programs. Democrats have so far failed to sway swing-vote moderate Sen. Joe Manchin (D-W.Va.), who has said he might support a slimmed down version of the bill — but time is running out and numerous obstacles remain. Read our coverage about what the court's decision means for EPA and clean electricity.
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