During Tuesday’s oral arguments in American Electric Power v. Connecticut—the global warming lawsuit that Walter Olson recently discussed here and Ilya Shapiro here, and in which Cato filed amicus briefs at both the certiorari stage and the merits stage—the justices concentrated their inquiries on a few technical legal doctrines in order to answer one question: should states even be allowed to sue power companies for the damage that global warming has allegedly done to their lands and citizens?

There are multiple ways this question could be answered, and how it is answered in the final opinion could have important ramifications for future environmental litigation.

Connecticut and five other states, plus New York City and three land trusts, brought the suit against five power companies. Their claim is based on the age-old tort of nuisance, the same ground that lets you sue your neighbor if his contaminated water seeps onto your land. Essentially, the states argued that if courts can solve that kind of dispute, then a dispute over global warming is only slightly different—bigger in scope, certainly, but not different in kind.

But at oral argument, the justices did not seem persuaded. Arguing against the states, Acting Solicitor General Neal Katyal opened by pointing out that “[i]n the 222 years that this Court has been sitting, it has never heard a case with so many potential perpetrators and so many potential victims…[T]he very name of the alleged nuisance, ‘global warming,’ itself tells you much of what you need to know.” Chief Justice John Roberts later asked the states’ attorney, New York solicitor general Barbara Underwood, if she had any rebuttal to Katyal’s claim—if there was “any case where it has been as broad as it is here?” Her answer? “Well, of course it depends on what you call broad.”

Indeed.

But how much broader could it be? Taking the scientists at their word, we’d have to include at least every car owner, every coal power plant, every natural gas power plant, every cement producer, every forester, and the fabled effects of bovine flatulence. And not just every one of these in America, but every one in the world. The scope of this case and the numerous trade-offs involved make it utterly inappropriate for judicial resolution.

The supposed link between the power companies’ emissions and the alleged global warming harms resembles a Rube Goldberg device of conjectures that stretches back millions of years. In our brief we analogized this to the famous “butterfly effect”: a butterfly flaps its wings in Brazil and causes a tornado in Texas.

A few theories were offered as to why the case should not go any further. The most far reaching of these theories, the political question doctrine, is one we advanced in our amicus briefs. The political question doctrine directs courts to stay out of disputes that are better left to the other branches of government. A decision along those lines would go far in the future toward keeping such suits out of courts.

But many environmental lawyers are hoping, and predicting, that the states will “lose well”—that is, the suit will be dismissed because it has been “displaced” by the “regulatory cas­cade” underway at the EPA, not because it is a fundamentally impossible and illegitimate lawsuit. Dismissing the suit on these grounds would leave the door open for large-scale suits to be brought whenever an agency is thought to be shirking its regulatory duties. Such suits are already a problem for administrative agencies, particularly those brought by environmental advocacy groups trying to force agencies to live up to the groups’ idea of sound environmental policy. The NY Times, for example, reported recently on the “barrage [that] has paralyzed the listing process” for the Endangered Species Act.

Not wanting to totally foreclose the possibility of large-scale suits being brought in the future, at least three justices, Kagan, Breyer, and Ginsburg, seemed partial to the displacement theory. One hopes that the other five justices will rule, on either prudential standing or political question grounds, that no amount of regulatory action or inaction can make these suits justiciable. If regulation is called for here – a dubious proposition – it should be undertaken by the political branches, not the courts.

Responding to a post yesterday by Cato’s Adam Schaeffer, Matt Ladner characterizes our education policy recommendations as: “Tax credits only or die!!!!!!!!”

But our recommendations are not of the form:  You must do “x.” They are of the form:  If you do “x,” “y” will happen.

Our goal is to identify the policies that produce the educational results people say they want: universal access to a good education, better academic outcomes, higher efficiency, greater responsiveness to the individual needs of each child and family, more harmonious relations among different ethnic/religious/ideological groups, less socially corrosive compulsion to consume or support types of instruction that violate their convictions.

So we do comparative policy research to find out what works and what doesn’t in pursuit of these ends and disseminate our findings. Adam’s post was a response to a commentary touting a type of government-funded school voucher program as “the future of school choice” in America. He pointed out that the evidence actually favors tax credits as the most effective means of achieving the goals of school choice supporters, and identified some shortcomings of vouchers in achieving those goals. In the process, he linked to some of our research on these issues so readers can judge for themselves.

We think this is the right mission and methodology for a public policy organization.

As for the specific points Matt raises, I have no opinion of the legal viability of Education “Savings” Account vouchers in Arizona, not having studied that particular issue. I think they are legally doomed in Florida, where I have studied the question, and that their inevitable defeat in the courts there could have negative repercussions for other school choice programs in that state.

For the rest, I agree with Adam: in the three fundamental areas in which voucher and tax credit programs differ (proclivity to regulate, socially corrosive compulsion, and reliance on third-party payment), ESA vouchers are equivalent to traditional vouchers and therefore inferior to tax credits.

Direct personal-use education tax credits avoid third-party payment entirely, and while Matt is right that scholarship donation tax credits are a third-party payment mechanism (like vouchers), they differ substantially in practice. Under existing k-12 scholarship donation tax credit programs, parents are typically expected to directly pay at least a fraction of their children’s tuition themselves, with the scholarship making up the difference. When they cannot afford even a modest co-payment (which is rare) they are often asked to volunteer some of their time to the school. As the “third-party payment” link above notes (scroll down to “System-wide…”), school efficiency has been empirically tied in the academic literature to the share of funding that comes from parents in the form of fees.

ESA’s, by contrast, are inherently designed to cover the entire cost of schooling out of the government disbursements, indeed to allow some surplus government funding to be retained by parents, completely eliminating their direct personal financial responsibility. For this reason, the term “Education Savings Account” is a misnomer. The policy is in fact a government voucher surplus account. Milton Friedman warned that people are far less careful with other people’s money than they are with their own, but he was hardly the first. The observation actually dates back at least two thousand years.

Finally, it is inconsistent for Matt to cite Florida’s special needs student voucher program as being larger and more far reaching than a tax credit program could be when Florida also has a scholarship tax credit program that serves … 50 percent more students than the special needs vouchers. Moreover, the tax credit program had been legislatively capped at a fixed level prior to last year, while the special needs voucher had not. The credit is now expected to grow by 25% annually in the coming few years at least, now that an automatic cap-lifting provision has been passed.

There is no inherent reason why credits would grow less than vouchers over time and serve fewer students—in the past, all school choice programs for a general student population had been legislatively capped. And it is the credit programs that had, to date, seen the most rapid growth.

The real question is: in the absence of caps, which program is more likely to fulfill the public’s goals, and the answer to that question can be found in the links above.