Kobach draws Kansas into legal dispute about California truck emission regulation

Attorney General Kris Kobach added Kansas to list of states challenging federal waiving allowing California to move ahead with plans to compel vehicle manufacturers to expand sales of zero-emission trucks. (Tim Carpenter/Kansas Reflector)

TOPEKA — Attorney General Kris Kobach's caseload on behalf of Kansans expanded to include challenge of a U.S. Environmental Protection Agency decision paving the way for California to impose standards tipping the scale in favor of zero-emission truck sales.

Kobach, a Republican who took office in January, said Wednesday he added Kansas to a cluster of states objecting to California standards crafted to accelerate sales of heavy-duty trucks and better shield residents of pollution. The EPA issued waivers in support of Gov. Gavin Newsom's goal of speeding transition to zero-emission vehicles in California.

The Kansas attorney general, in conjunction with attorneys general of 18 other states, said the EPA under Democratic President Joe Biden was attempting to "illegally ban trucks" while propelling the nation toward a "radical climate change agenda."

"This disastrous Biden policy would devastate Kansas industries, destroy Kansas jobs and dramatically increase the cost of consumer goods for Kansas families," Kobach said. "California's truck ban is reckless, and that's why I am once again challenging a Biden policy."

Newsom said the EPA waiver was a victory for "the environment, our economy and the health of families across the country that comes at a pivotal moment underscoring the need to end our reliance on fossil fuels."

The federal lawsuit initially filed by Iowa asserted California regulations violated federal law. Eight states have adopted the California approach, which Kobach said could undermine demand for biodiesel and other common fuels.

The California truck dispute represented tip of the iceberg in terms of Kobach's work to use the courts to address his political agenda.

In less than six months, Kobach either filed lawsuits or added Kansas to cases involving natural gas price gouging, the lesser prairie chicken, firearm pistol stabilizer accessories, water pollution, immigration to the United States and decisions of government agencies to make financial decisions based on analysis of environmental, social and governance factors.

Kobach has vowed to appeal a recent election law decision by the Kansas Court of Appeals. He also signed legal briefs submitted to out-of-state courts in disputes about free speech rights of the National Rifle Association, mail-order sales of abortion pills, sports participation by transgender girls and a Kentucky photographer's refusal to serve gay customers.

"Our campaign signs a year ago had three words on the bottom," he told supporters of the Kansas chapter of the political organization Americans for Prosperity. "Anybody remember? Yes, sue Joe Biden. We have had the honor of participating so far in five multistate lawsuits against the Biden administration since I took office."

Weeks into his tenure as attorney general, Kobach filed a $50 million suit against Macquarie Energy alleging the company served as middleman to Kansas natural gas utilities, manipulated market prices and engaged in gouging during the February 2021 winter storm.

The Great Plains storm, known as Uri, left Kansas consumers with responsibility for hundreds of millions of dollars in extraordinary costs. The Kansas Corporate Commission authorized rate hikes to enable Kansas energy companies to cover those expenditures.

Kobach alleged in Shawnee County District Court that Macquarie Energy violated the federal Commodity Exchange Act by purchasing gas from Southern Star Central Gas Pipeline at rates that warped price benchmarks and helped inflate Macquarie Energy's profits.

"Kansas families deserve protection from price gouging and market manipulation," Kobach said. "Companies in Kansas must play by the rules."

Derek Schmidt, the former Kansas attorney general, initiated an inquiry into price gouging and said the high prices "appear to violate Kansas law." His office hired the Florida-based law firm of Morgan & Morgan to work the case. In 2022, Schmidt ran for governor rather than seek reelection.

Kobach was elected attorney general in November and took over responsibility for the investigation launched by Schmidt. Kobach canceled the state's contract with Morgan & Morgan. The law firm said it was owed $2.8 million for work performed on the case.

Kobach also joined Texas and Oklahoma in a lawsuit against the Biden administration asserting the U.S. Fish and Wildlife Service violated federal law by declaring the lesser prairie chicken a threatened species. The bird's habitat is concentrated in parts of the three states and Kobach contended the federal designation would interfere with Kansas oil drilling and ranching activities.

He said the federal declaration violated constitutional rights of Kansas property owners and ignored the role of precipitation and drought in rise or fall in the quirky bird's population.

"The science on this is so clear," Kobach said. "Their argument is prairie chicken numbers are down so that means you’ve got to stop all manmade activity — no new buildings, no new well drilling, no grazing, no nothing. When the rain comes back, the birds will come back and that's the end of the story."

Kobach applauded a lawsuit challenging a rule set by the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives that required people using a pistol brace, which included a strap attachment to enable single-handed shooting, to register those weapons as short-barreled rifles.

The legal challenge of the AFT rule asserted the equipment was designed as a medical device to assist disabled veterans when firing a weapon.

Kobach followed more than a dozen other states that piled onto a Texas lawsuit contesting a U.S. Department of Homeland Security program. Kobach said the agency sought to create a de facto path to citizenship for hundreds of thousands of immigrants without documentation allowing access to the United States.

The DHS program would serve up to 360,000 people from Nicaragua, Haiti, Cuba and Venezuela who apply from their home country for lawful status to enter and stay in the United States for up to two years. The DHS rule was essentially a new visa system, Kobach said.

"The Biden administration is once again shattering federal law in its effort to open our borders to as many illegal aliens as possible," he said.

Kobach also flexed his Kansas authority by joining West Virginia and at least 20 states in the challenge of an EPA rule redefining how the U.S. Army Corps of Engineers regulated streams, wetlands and other bodies of water.

Kobach said it was the Biden administration's response to the 2020 rule put in place by President Donald Trump, which offered a "more restrained" interpretation of federal oversight. The U.S. Supreme Court has since issued a decision limiting capacity of the federal government to regulate waterways.

"The time has come for the federal government to stop its unconstitutional attempts to regulate every dry ditch and farm pond in Kansas," Kobach said.

by Tim Carpenter, Kansas Reflector June 8, 2023

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Tim Carpenter has reported on Kansas for 35 years. He covered the Capitol for 16 years at the Topeka Capital-Journal and previously worked for the Lawrence Journal-World and United Press International.