Kris Kobach is back — and climate policy is a top target

Source: By Adam Aton, Lesley Clark, E&E News • Posted: Sunday, December 4, 2022

Kris Kobach, Kansas’ incoming attorney general, and his wife, Heather.

Kris Kobach, Kansas’ incoming attorney general, is shown leaving the stage with his wife, Heather (left), after addressing supporters at a Republican watch party in Topeka, Kan., on Nov. 9. Reed Hoffmann/AP

An old nemesis for Democrats is poised to become a new headache for climate action.

Kris Kobach, the hard-line Republican who built a national profile as Kansas secretary of state for his own-the-libs approach to politicking, has revived his career after back-to-back losses left him out of office and estranged from many GOP power brokers.

Elected last month as attorney general by the narrowest margin of any Kansas statewide candidate this year, Kobach is promising to transform the Sunflower State into the courtroom equivalent of Texas: the leading edge of conservative resistance to the Biden administration.

Kobach’s top priority, he said during debates, will be standing up a new unit in the attorney general’s office to sue President Joe Biden on a range of issues, “whether that be defending fossil fuel extraction in Kansas or defending our gun rights.”

One of his first targets will be Biden’s new protections for the lesser prairie chicken, which he’s called a “bogus reason” to halt oil and gas drilling. But it won’t be the last. Kobach campaigned on launching a conservative legal blitz that would be felt nationwide.

“They see me as a threat,” Kobach said of progressives. “And I am a threat to their agenda.”

He’ll join a group of Republican attorneys general who already have found considerable unanimity in taking the White House to court over its efforts to tackle climate change.

They’ve targeted the administration’s use of a metric to put a price tag on the cost of carbon emissions and are objecting to efforts to set new guidelines for socially conscious investing.

Immigration and voter fraud have been the issues that have defined Kobach’s career, and during the campaign he emphasized his lawsuits fighting government vaccine mandates.

Now, Kansas observers said, he’ll have a broader portfolio to draw from as he rebuilds his national profile. One of Biden’s signature priorities, climate policy, offers him a juicy target.

“It’s probable he becomes — at least in the Fox News and conservative world — one of the most well-known AGs in America,” said Bob Beatty, chair of the political science department at Washburn University in Topeka, Kan.

That’s because Kobach has shown a relentlessness that stands out from other GOP attorneys general, Beatty said. If Republicans are targeting climate regulations, Kobach likely will seek to lead them rather than sign on to lawsuits from other states.

“He’s going to be potentially omnipresent,” he said. “That’s not true of [current Kansas Attorney General] Derek Schmidt, and in some ways not even true about the well-known AGs from Texas and other places.”

Republican attorneys general already have sued the Biden administration more than 100 times. Energy regulations have proved particularly popular for litigation — attracting more Republican co-signers than any other issue, said Jerry Kilgore, a member of the state attorneys general practice at the law firm Cozen O’Connor PC.

Kobach’s stance would be a departure from that of his predecessor, who has not been as outspoken on energy issues as his counterparts in Louisiana, Texas and Missouri, Kilgore said.

“I do expect [Attorney] General Kobach will enter that fray and play more of a lead in these challenges to the administration,” Kilgore said.

He said he would be looking at whom Kobach hires and how he staffs his office, particularly if he selects a prominent solicitor general and creates a litigation team.

“The way you organize the office can signal to the rest of the country what you’re going to focus on,” Kilgore said.

A Kobach spokesperson said the attorney general-elect wants to enforce the law, not achieve some policy outcome.

“Attorney General-elect Kobach stands ready to fight the legal battle in those cases where a Biden executive decree violates statutory or constitutional limits,” spokesperson Danedri Herbert said in a statement. “It’s not a matter of what policy the Biden Administration is advocating; it’s a matter of whether the Biden edict is a permissible exercise of federal executive power.”

‘Flamboyant’

Two traits have defined Kobach’s career, said Patrick Miller, a political science professor at the University of Kansas.

The first is his style. In a Midwestern state where politicians usually cultivate a down-to-earth persona, the Harvard University-educated Kobach campaigned for governor in 2018 from a Jeep outfitted with an American flag paint job and a replica .50-caliber machine gun mounted on the back.

“He is a flamboyant politician who loves the theater of politics,” said Miller. “Traditionally at least, the more he can do to anger the left politically, the happier he’s going to be.”

Kobach’s Democratic opponent in the attorney general’s race, Chris Mann, described him as “some sort of comic book villain.” Mann lost by 1.6 percentage points.

Kobach’s other defining trait, Miller said, has been to push conservative causes via activist government policy.

Before entering office, Kobach helped draft Arizona’s S.B. 1070, a 2010 law that required police to determine the immigration status of anyone they stop or arrest — described by critics as the “show me your papers law.”

In Kansas, he pushed lawmakers to enact a sweeping overhaul of voting laws. Under his signature 2011 law, the Secure and Fair Elections Act, people registering to vote needed a birth certificate, passport or naturalization papers. Kobach also persuaded lawmakers to grant the secretary of state’s office new prosecutorial powers for election crimes.

“In his domain of influence, he was incredibly activist in using that government power to institute new regulations and investigate,” Miller said. “So I think in the context of what he’s going to do as attorney general — probably more of the same.”

But Kobach’s legal scorecard is mixed at best. Courts struck down most aspects of Arizona’s illegal-immigration law. His voter fraud investigations turned up only a handful of mostly erroneous registrations. And Kansas’ voting law was overturned by a federal judge who found it to be unconstitutional and cited Kobach’s own lackluster investigation as part of her rationale.

In a striking rebuke, that judge — Julie Robinson, appointed by President George W. Bush — ordered Kobach to attend six hours of remedial legal training before he could renew his law license. She said that was necessary after his “repeated and flagrant violations of discovery and disclosure rules.”

‘What a surprise!’

Kobach doesn’t take office until January, but already at least one of his cases is coming into focus: a fight between oil drilling and wildlife conservation.

The Biden administration last month announced it would grant protections under the Endangered Species Act to the lesser prairie chicken (E&E News PM, Nov. 17). Those protections cover five states, including Kansas.

Kansas Republicans have vowed to fight those protections, which they fear could choke off oil and gas development as well as agriculture in the state’s western areas.

One of their tools? A 2014 state law enacted at Kobach’s urging, which claims sole jurisdiction over the birds and allows Kansas officials to sue federal officials if they attempt to enforce protections for the lesser prairie chicken.

“This is a fight worth fighting,” Kobach told lawmakers on the Kansas Senate’s Natural Resources Committee before they passed the bill, according to The Mirror of Tonganoxie, Kan. “There is nothing in the Constitution that mentions the federal regulation of species.”

Now, Kobach says he will fight the prairie chicken’s “illegal” listing in court.

“What a surprise they waited until after the election to announce this move!” Kobach said in a statement. “As I predicted in multiple campaign speeches, the Biden Administration was making moves that indicated their intention to list the lesser prairie chicken as threatened, a move that seriously impairs Kansas’s ability to drill for oil, as well as to build wind farms.”

After more than a decade in public life, Kobach has left clues to how he might approach his new job as attorney general. For instance, in the past he’s cast doubt on climate science.

“The Earth’s climate has been changing ever since the Earth was created,” Kobach told the Lawrence Journal-World in 2018. “The bigger question is what component of it is man-made. I don’t pretend to be a climate scientist, but I do believe the global-warming alarmists have overstated their case.”

At the state level, Republican attorneys general have been especially active in efforts to counter the use of environmental, social and governance factors in investing.

In October, 19 Republican state attorneys general launched an investigation into six major U.S. banks — including JPMorgan Chase & Co. and Wells Fargo & Co. — over their membership in a global climate alliance.

And several Republican attorneys general threatened legal action against financial firms such as BlackRock Inc. that have adopted public-facing sustainability goals.

Louisiana Attorney General Jeff Landry and Missouri Attorney General Eric Schmitt, both Republicans, also are pursuing parallel lawsuits against the Biden administration’s use of an estimate for the social cost of carbon emissions. Neither lawsuit, however, has been successful, and Missouri’s has been rejected by an appeals court.