Tales from the swamp

Trump’s controversial nomination of David Bernhardt to oversee our public lands

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David Bernhardt
Tami Heilemann/USDI

Even as Democratic Rep. Alexandria Ocasio-Cortez (D-NY) and Rep. Ed Markey (D-MA) were introducing the Green New Deal with hopes of directly engaging the threat of fossil fuel-driven climate change, President Donald Trump was nominating former lobbyist and native Coloradan David Bernhardt to lead the U.S. Department of the Interior (DOI), which oversees our public lands and wildlife. These two actions could not be more at odds.

Bernhardt, who was appointed deputy secretary of the Interior in August 2017, has been nominated to replace previous Interior Secretary Ryan Zinke, who quit his cabinet post amid multiple ethics investigations. Bernhardt has been serving as acting secretary since Zinke’s resignation in December 2018. Colorado Senators Michael Bennet (D) and Cory Gardner (R) both voted to confirm Bernhardt as Deputy in 2017. Gardner will soon be voting in committee on whether to send Bernhardt’s nomination as secretary to a full confirmation vote of the Senate. If the vote reaches the Senate floor, Bennet will be voting on the matter. The initial committee hearing and vote are scheduled for Thursday, March 28.

Bennet recently stated he doesn’t support Bernhardt to be the new secretary, while Gardner has voiced his support for Bernhardt and is scheduled to introduce him at the committee hearing. Neither Bennet nor Gardner responded to requests for comment for this article.

A record of conflicts

Prior to joining the DOI, Bernhardt worked for the politically powerful, Denver-based law and lobbying firm Brownstein Hyatt Farber Schreck (BHFS). While at the firm, Bernhardt represented fossil fuel extraction and mining companies, along with companies working to push private water projects in the arid West. As part of this work, Bernhardt often found himself lobbying at the DOI. For many critics, his nomination is controversial because several of his former clients, as well as his former employer, have benefitted and stand to benefit in the future from Interior policies that have serious consequences for the environment, public lands and wildlife.

Prior to becoming deputy secretary, Bernhardt, via BHFS, was on the legal team that represented the Colorado Oil and Gas Association before the Colorado Supreme Court in its successful effort to overturn the fracking moratorium and ban that had been passed by voters in Fort Collins and Longmont, respectively. Bernhardt has also provided services to the Independent Petroleum Association of America (IPAA), Noble Energy, private investors attempting to build the controversial Cadiz Water Project in California and the conservative, pro-Trump trophy-hunting group Safari Club International, among others.

Since becoming deputy secretary, Bernhardt has reportedly acted as the “mastermind” behind many of Interior’s initiatives designed to attain Trump’s version of energy independence, which the president refers to as “energy dominance.” As an example, the Western Values Project claims that immediately after his 2017 confirmation, Bernhardt was tasked with dismantling the 11-state Greater Sage-Grouse Conservation Agreement. The 2015 agreement implemented some protections from extraction industries on 9 million acres of public lands in the West. Oil and gas corporations have taken advantage of the DOI’s 2018 rollback of the agreement. This is important because as the health of sage-grouse populations go, so goes the health of hundreds of other species sharing the bird’s habitat, including mule deer. (Environmental groups filed a lawsuit in federal court on March 27 suing Bernhardt and the BLM for “gutting” the sage-grouse plans and violating federal law in the process.) 

According to a recent report by the Center for American Progress, the “Trump administration is selling Western wildlife corridors to the oil and gas industry,” despite Bernhardt having publicly claimed that the DOI is committed to sportsmen’s interests at various events and on social media. Since Trump became president, the BLM has offered more than 3,400 oil and gas leases in the Intermountain West — nearly one in five have been in areas identified by the states as an important migration corridor or wintering grounds for elk, mule deer or pronghorn. “The proportion of oil and gas leases offered by the Trump administration in priority wildlife habitat has been particularly high in Colorado, New Mexico and Wyoming, and, to a lesser degree, Nevada,” according to the report.

In disharmony with these actions, the 2019 Colorado College Conservation in the West Poll (CC poll) found that 54 percent of Colorado voters think allowing increased oil and gas production on 80 percent of the critical habitat that Western states identified in 2015 as necessary to restore the threatened sage-grouse is a bad policy. And even more clearly, according to the same poll, there is near unanimous support including among members of both major political parties for the conservation of migration corridors across all Western states, with 92 percent of Democrats, 86 percent of Independents and 82 percent of Republicans in support. The poll notes people considering themselves to be sportsmen support this conservation effort by 86 percent.

On March 23, The Center for Investigative Reporting’s Reveal radio program reported on a June 2017 conference meeting wherein senior executives of the IPAA (former clients of Bernhardt’s while he was with BHFS) appear to have boasted of their “unprecedented access” to people within the Trump administration, referring to then-Deputy Secretary Bernhardt. The IPAA President and CEO is also reported to have recalled Bernhardt’s role as point man on an IPAA legal team that was assembled to challenge federal endangered species rules.

But it’s not just oil and gas getting its way under Bernhardt and Trump.

On Feb. 14, in a DOI news release titled, “The War on Coal is Over: Interior Announces Historic Coal Projects in Utah,” Bernhardt, along with congressional members from Utah, championed jobs and revenue without ever mentioning coal’s disastrous impact on the environment or climate change. Again, exposing the lack of popular support for Bernhardt’s pro-coal position, the CC poll found only 8 percent of Western voters believe coal extraction should be encouraged, while a large majority of all voters support increasing wind and solar power.

In response to questions about climate change, in his 2017 deputy secretary confirmation hearing, Bernhardt told senators that his task, if confirmed, would be to “take the science as we find it, put it in the paradigm of the administration’s policy perspective, which is we’re not going to sacrifice jobs for this, and then look at the legal rubric and say, how do we apply the law there.” Bernhardt added he would follow Trump’s policy perspective, which he contends is the will of the American people because Trump was elected president.

Damn the science, the press and the polls

In light of scientific consensus assuring global catastrophe unless swift action is taken to reduce greenhouse gas emissions, Bernhardt’s statement appears misguided at best. Juxtaposing his statement with the aforementioned Green New Deal resolution, which specifically targets creating jobs while reducing emissions, may reflect the sociopolitical crux of our time. 

When he’s not pushing policies that will increase greenhouse gas emissions, Deputy Secretary Bernhardt has found time to go after the press and the public’s right to know. He has proposed revising the Freedom of Information Act (FOIA), drawing a strong rebuke from The Reporters Committee for Freedom of the Press, which said many provisions of Bernhardt’s proposed new rule are flatly inconsistent or incompatible with FOIA, “and would harm journalists’ ability to gather and report information to the public about the actions of the Department and its personnel.”

Press oversight is critical considering that even Congress has had cause to question Bernhardt’s transparency. On Feb. 7, Rep. Raúl Grijalva (D-NM) and TJ Cox (D-CA) of the House Natural Resources committee, requested Bernhardt provide all calendars containing information of his daily briefing materials or travel briefings, as well as, “the date, time, attendee(s), location, and topic(s) of discussion for any and all meetings attended by Bernhardt after July 24, 2017.” In their letter of request, the lawmakers assert that versions of Bernhardt’s published schedule, obtained through FOIA requests, contained omissions, which raises questions about the intent to hide or manipulate federal records to avoid full disclosure. The letter further states that an additional 100 hours of Bernhardt’s scheduled time at Interior failed to include either a description of the meeting topic or the non-DOI attendees, including internal and external meetings, calls, events and briefings.

At best, such omissions create the appearance of impropriety, which is a serious problem in its own right even if no actual impropriety exists. Now, on the eve of Bernhardt’s Senate committee hearing, Interior has finally released 26,792 pages to Grijalva’s House committee. It is unclear if the public will know what is in those documents before the confirmation vote.

And Bernhardt’s problems may be more than just appearances. A Feb. 12 New York Times article revealed that after being confirmed to his current position at the DOI, Bernhardt seems to have pushed policy on behalf of his former client, Westlands Water District. According to the Times, four months after his confirmation, Bernhardt held several meetings with an Interior official with the legal authority to initiate a process to revise protections for the delta smelt and winter-run chinook salmon. The legal protections for both species stand in the way of Westlands’ business ventures. Bernhardt reportedly told the official to begin the process of changing the protections for the fish, “and to finish as quickly as possible.” Bernhardt said he received “verbal clearance” from a DOI ethics lawyer to do so. The Times cited an ethics specialist who said Bernhardt’s action is worthy of investigation. In response, Bernhardt told the Times, “I don’t believe for a minute that I’m doing things to benefit Westlands. I’m doing things to benefit America.”

Again, this response is similar to others Bernhardt has made, wherein he reframes an action with dubious environmental impacts and possible conflicts of interest as justified because it was taken on behalf of the Trump administration’s policies, and since Trump was elected, those policies must therefore be the will of the American people. But not all agree with this strained logic or other positions Bernhardt has staked out.

On Feb. 12, Craig Holman, government affairs lobbyist in the Congress Watch division of the group Public Citizen, sent a letter to the Office of the Inspector General (OIG) and Interior Designated Agency Ethics Official (DAEO), Scott de la Vega, who was appointed to his position by Bernhardt in April 2018, claiming Bernhardt is in violation of Trump’s executive order preventing appointees from participating for two years after their appointment in the same areas they previously lobbied.

Holman cites the aforementioned Times exposé, which he says provides very specific, concrete information that is hard to ignore. Holman believes the DAEO has authorized Bernhardt to work on issues of potential conflict, and that they are justifying it by trying to declare that a specific action now is not the exact same action that Bernhardt was lobbying for previously. “But come on,” Holman says, “rolling back the Endangered Species Act for the delta smelt to provide water for the Westlands Water District? That’s exactly what he was lobbying on.”

And according to a report from the Center for American Progress, the method for keeping potential Bernhardt conflicts of interest out of public view was put in place by the president. According to Trump’s ethics executive order, the president, or his designee, can grant waivers for Bernhardt to work on matters affecting lobbying clients held within the past two years without listing the factors or publicly reporting on whether Bernhardt has even received such waivers. Such actions have basically created a black hole free from ethical oversight. Neither the DAEO nor OIG responded to requests for comment.

In a recent interview in the Wall Street Journal, Bernhardt said the Interior Secretary’s job is one of “balance,” adding, “you have to harmonize.” But some things currently occurring at the DOI seem so discordant that critics believe voting to affirm the nomination of Bernhardt could have negative consequences not only on public lands and wildlife but also on those senators who cast such a vote. 

According to the Global Strategy Group’s recently released poll of likely general election voters in Colorado in 2020, supporting Bernhardt is a negative. According to the poll, 57 percent of respondents oppose Bernhardt’s confirmation as interior secretary after hearing a series of messages against his confirmation, while 29 percent support it. While such a push poll admittedly provides slanted results, it will likely be used as a roadmap in the effort to defeat Republican Senator Cory Gardner in the 2020 election.

U.S. Senate
Colorado Senator Cory Gardner

When the same poll asked if Sen. Gardner votes to confirm Bernhardt whether the respondent would vote to re-elect or replace Gardner in 2020, 62 percent said they would vote to replace him. This at a time when the Western Values Project has just announced a six-figure ad spend to oppose Berhardt’s confirmation.

At this point, it seems unlikely that Gardner can or will change his mind on supporting Bernhardt. It has always been a mutually supportive relationship. Bernhardt has personally chipped in thousands of dollars to Gardner’s campaigns in the past and BHFS is the third largest contributor over Gardner’s entire political career, having given him $69,061 so far, according to the Center for Responsive Politics, which also lists Anadarko Petroleum, Koch Industries and Noble Energy as major Gardner contributors.

U.S. Senate
Colorado Senator Michael Bennet

As for Bennet, who is weighing a run for president, it is unclear why he has, at least for the moment, flipped on Bernhardt, especially when he and his staff have yet to respond to specific questions regarding his 2017 vote to confirm Bernhardt to one of the most powerful positions overseeing our public lands and wildlife at his first confirmation hearing. Bennet voted for Bernhardt even after the lobbyist’s critics had labeled him an enemy of public lands. Some critical of Bennet’s environmental record and his vote in 2017 point out the Democrat has received over $175,954 in contributions from Bernhardt’s former law and lobbying firm, BHFS. Though it’s impossible to gauge the influence of such factors, it’s certainly worth weighing in one’s political decisions.

Whether or not he’s confirmed by the Senate as interior secretary, Bernhardt will likely continue following Trump’s directives, which also appear to coincide with the interests of many of Bernhardt’s former — and BHFS’ current — fossil fuel and mining corporation clients. There is no reason to assume he will not initiate policies that continue to increase greenhouse gas emissions while auctioning off wildlife migration corridors and sage-grouse breeding areas to coal, gas, oil and other mining industries. In the end, Bernhardt’s commitment to Trump’s policies will create irreparable and negative impacts to America’s public lands and wildlife while accelerating climate change that threatens us all.