Virginia Attorney General Ken Cuccinelli's legal battles over climate science are in danger of petering out after two major setbacks recently.

Climate skeptic Cuccinelli, a conservative Republican, has been an outspoken critic of both U.S. EPA's effort to regulate greenhouse gas emissions and the work of prominent climatologist Michael Mann.

He joined the legal challenge to the EPA rules, although -- unlike some members of the broad coalition of states and industry groups -- he focused largely on the science underpinning the agency's efforts.

Virginia AG Ken Cuccinelli (R). Photo courtesy of the Virginia Office of the Attorney General.

Separately, he sought to seize emails Mann wrote when he was working at the University of Virginia.

In the space of a week, the bad news came thick and fast for Cuccinelli.

First, the U.S. Court of Appeals for the District of Columbia Circuit, which is considering the lawfulness of EPA's climate rules, paid scant attention to Virginia's arguments over two days of oral argument (Greenwire, Feb. 28).

Legal experts agree that the court is almost certain to uphold EPA's endangerment finding, in which the agency held -- based on the science -- that greenhouse gases pose a health risk and should be regulated under the Clean Air Act.

Then, last Friday, the Virginia Supreme Court blocked Cuccinelli's attempt to seize the University of Virginia documents.

The court held that the attorney general could not demand access to emails and other documents using a civil investigative demand because the university is not defined as a "person" under the Virginia Fraud Against Taxpayers Act (Greenwire, March 2).

Cuccinelli's approach has been lambasted by environmentalists, who were quick to pounce on the recent court action.

"The events of the last week show his war on science is doomed to fail in the courts," said David Doniger, an attorney at the Natural Resources Defense Council.

Not going there

During oral comments before the D.C. Circuit, Virginia's specific argument was that EPA should have reconsidered the endangerment rule due to the so-called Climategate scandal.

Climate skeptics say emails recovered from a server at the University of East Anglia's Climatic Research Unit in the United Kingdom indicate that scientists manipulated data, although the allegations have been strongly contested and rejected by the British government (ClimateWire, May 10, 2011).

Virginia said the Climategate emails support arguments that the data upon which EPA relied were "manipulated."

During the argument, the court did address the issue of whether EPA should have reopened public comments in the aftermath of Climategate, but few experts think the three-judge panel will rule in Virginia's favor on that point.

Likewise, the judges made it clear they were not about to second-guess the Supreme Court, which ruled in its 2007 case Massachusetts v. EPA that greenhouse gases are a pollutant under the Clean Air Act.

"Sometimes in reading the petitioners' briefs, I get the impression that Massachusetts had not been decided," said Chief Judge David Sentelle.

John Cruden, a former career attorney at the Justice Department's environmental and natural resources division who now heads the Environmental Law Institute, echoed the reaction of many legal experts when he predicted the court "will have little trouble upholding EPA's endangerment finding."

Harry MacDougald, an attorney at Caldwell & Watson who argued separately against the endangerment finding on behalf of the Southeastern Legal Foundation, appeared to concede that the court was reluctant to focus on disputes over the science when he discussed the case at the libertarian Cato Institute last week.

"The court is disinclined to get into a science controversy," he said. "They were not receptive."

As for the Virginia Supreme Court case, Cuccinelli's investigation of Mann was based on the claim that the climatologist might have committed fraud based on assertions he made while obtaining research grants when he worked at the university.

Climate skeptics argue that Mann and others cooked the books in order to exaggerate predictions of global temperature increases, a claim that various science organizations have rejected.

The state court decisively rejected Cucinelli's argument on the threshold issue of whether the state's fraud law could even be applied to the university.

That meant the court did not reach the university's counter-claim that Cuccinelli had failed to explain what exact conduct he was investigating that could be subject to enforcement.

Mann, now a researcher at Penn State University, was quick to seize on the opportunity to describe the case as "Cuccinelli's witch hunt" and claimed the money could have been better spent on "measures to protect Virginia's coastline from the damaging effects of sea-level rise."

Real legal issues

But it isn't just environmentalists and aggrieved climatologists who think Cuccinelli's efforts were likely to fail.

Conservative law professor Jonathan Adler, a critic of efforts to regulate greenhouse gas emissions who teaches at Case Western Reserve University School of Law, thinks Cuccinelli picked the wrong fight.

There was always "little chance" the D.C. Circuit would throw out the endangerment finding, Adler said, and he was just as "skeptical anything would come out of the litigation against Mann."

It would be "more fruitful to focus on the real legal and policy issues ... than to try and go after the science," Adler added, citing some of the other arguments made against the climate regulations.

Most observers think the regulation most vulnerable to legal attack is the "tailoring" rule, which interprets the Clean Air Act in such a way that only major polluters are required to obtain permits for greenhouse gas emissions. EPA was forced to effectively rewrite the Clean Air Act in order to prevent the regulations from applying to nonindustrial sources like schools and apartment buildings. The arguments raised against the rule do not focus on climate science.

Cuccinelli spokesman Brian Gottstein sought to deflect any criticism of Cuccinelli's conduct, insisting that the attorney general "is not arguing climate science."

The attorney general only took legal action when either "there was an indication fraud may have been committed" or when "the federal government broke its own federal rules to impose new regulations," Gottstein said.

"Although these cases involve climate science, the cases are based on legal issues, not policy disagreements over climate science," he added.

He declined to address whether the attorney general, who is planning to run for governor in 2013, is likely to be involved in more litigation about climate science.

As Cruden noted, whether or not Cuccinelli's war is over, "he clearly had a bad week."