The States of Virginia and Alabama have commenced legal action to challenge the U.S. Environmental Protection Agency's ("EPA") endangerment finding and its jurisdiction to regulate greenhouse gases under the Clean Air Act. As reported last week, Texas, the U.S. Chamber of Commerce, and a coalition of business lobby groups (including the National Association of Manufacturers and the American Petroleum Institute) have launched similar claims.

Virginia's petition stands out, however, in that it appears to attack the climate science, not just the administrative process by which the EPA arrived at its foundational endangerment finding. BusinessGreen.com reports that Virginia attorney general Kenneth T Cuccinelli II accused the EPA of acting in "an arbitrary and capricious fashion" and relying too heavily on reports from the U.N. Intergovernmental Panel on Climate Change ("IPCC"). "The IPCC reports were produced without regard to US data standards and thus lack the transparency and data quality standards that the EPA should be demanding in the reports it bases it's [sic] endangerment findings on," said Mr. Cuccinelli, continuing, "We cannot allow unelected bureaucrats with political agendas to use falsified data to regulate American industry and drive our economy into the ground."

By focusing on the science that underpins the endangerment finding, Virginia's petition could result in a trial that would be much more politically charged and highly publicized than the trials of the petitions that focus on purely administrative law concepts. Comparisons are already being drawn with the 1925 "Scopes Monkey Trial", in which the validity of a statute that prohibited the teaching of evolution was challenged.