When President Trump nominated David Bernhardt for a top-level post at the Interior Department, environmentalists and water experts could see trouble ahead. They feared that Bernhardt would bring to the post of deputy Interior secretary — the No.2-ranking job at the agency — conflicts of interest on a dizzying scale.
He would be overseeing an agency that deals with “clients who have paid his law firm millions of dollars in legal and lobbying fees,” as my colleague Bettina Boxall reported. These included Westlands Water District, the nation's largest irrigation district, and Cadiz Inc., a company that wants to pump Mojave Desert groundwater and sell it to Southern California cities.
Bernhardt committed to recusing himself on matters related to his ex-clients for one year. That year is now over. On Friday, Bernhardt surfaced with an op-ed in the Washington Post plumping for a rollback of the federal Endangered Species Act — a statute over which he had sued Interior on behalf of Westlands. The application of the Endangered Species Act to future water projects is of profound interest to Westlands and other agribusinesses like it, not to mention other industries Bernhardt represented as a private attorney.
The Trump administration, as we’ve reported, has had the knives out for the Endangered Species Act almost from Inauguration Day, and it hasn’t been shy about using every fatuous excuse it can conjure up to undermine the act.
According to Bernhardt’s op-ed, Interior aims merely to bring the Endangered Species Act “up to date.” The agency proposes to do so by ratcheting down the legal safeguards afforded to “threatened” species, a subset of animals and plants that are supposed to be afforded second-rank protection under the act. This will bring the act into the 21st century, Bernhardt wrote, “while delivering good government for our citizens.” The agency’s proposals for changing rules under the act are out for public comment, with a deadline of Sept. 24.
We’ll turn to his arguments in a moment. First, let’s observe that no one would have even an inkling about Bernhardt’s deep history with the Endangered Species Act from the identification appended to his op-ed by the Washington Post, which says, in its entirety, that he is “deputy secretary of the interior.” That’s tantamount to identifying, say, David and Charles Koch as owners of a conglomerate that manufactures Dixie Cups. It’s not inaccurate, exactly, just so limited as to be grossly uninformative.
That’s the danger in allowing op-ed authors to conceal their real interests behind a pro-forma official title. (We don’t mean to pick on the Washington Post, since this practice is common.)
Bernhardt apparently is sensitive about the appearance of a conflict, since his spokeswoman responded to my question about the op-ed with guns afire.
“This question is outrageous,” Deputy Press Secretary Faith Vander Voort emailed me. She said Bernhardt “is completely compliant with his ethics agreement and he takes it very seriously. The Administration’s interest in improving the Endangered Species Act is significant and it is irresponsible to insinuate that it was driven by the Deputy Secretary’s prior employment. Deputy Secretary Bernhardt follows all advisement from career ethics officials.”
Interior would like us to think that Bernhardt’s policy decisions all fall within the four walls of his job at Interior and have zero to do with his prior employment or future employment. Is this plausible? Prior to 2001, he was associated with the natural resources law firm Brownstein Hyatt Farber Schreck, which has numbered Westlands and Cadiz as its clients. That year, he jumped to the Interior Department under George W. Bush and eventually served as its top legal official.
After the Bush administration, he returned to the Brownstein firm and traipsed back through the swinging doors to Interior upon his nomination by Trump last year. Obviously, it’s impossible to say that he would be back on Brownstein’s payroll after the Trump administration goes off into the sunset, but as Shakespeare said, “What’s past is prologue,” and who wants to argue with him?
That brings us back the gist of Bernhardt’s op-ed. He takes particular aim at one aspect of the Endangered Species Act’s implementation, known as the “blanket rule.” As used by the Fish and Wildlife Service, a subagency of Interior, the blanket rule affords the same protections to “threatened” species as are given to plants and animals in the more stringent “endangered” category.
The blanket rule can be challenged on a case-by-case basis by entities, such as industries and land developers, that think they’re disadvantaged by protections for threatened species. But on the whole, according to environmental law experts, it’s a relatively efficient means of administering the rule, because the challenges are relatively uncommon and therefore don’t need to take up a lot of Fish and Wildlife officials’ time.
Revoking the blanket rule would mean that Fish and Wildlife would have to consider separately every case involving a threatened species. “Bernhardt is deliberately creating a bigger backlog and workload for FWS so all these species listed as threatened get no protection,” says Brett Hartl, an endangered species expert at the Center for Biological Diversity.
Bernhardt implies that Interior is simply striving for consistency in the federal approach to the act. The National Oceanic and Atmospheric Administration, or NOAA, doesn’t apply the blanket rule in its treatment of the Endangered Species Act, he observes, so why should the Fish and Wildlife Service?
Hartl calls this out as a “quite cynical” argument for, as Bernhardt probably knows, NOAA, through the National Marine Fisheries Service, has 141 species under its jurisdiction, of which 54 are threatened. Fish and Wildlife, by contrast, has responsibility for 1,661 species, including 1,274 that are endangered and 387 that are threatened.
In other words, NOAA doesn’t apply a blanket rule because it doesn’t have the workload that requires one; the Fish and Wildlife Service, however, would be buried by paperwork if it had to consider every designation of a threatened species separately.
As Hartl points out, if Bernhardt really wants to create a shared approach between FWS and NOAA, why not have NOAA adhere to the blanket rule rather than the other way around? The result would be more protections for more species, which is what the spirit of the law requires.
The change in the Endangered Species Act would have a limited effect on Bernhardt’s former clients, since it would apply only to future species designations.
Bernhardt’s legal work for Westlands involved, among other things, challenging the “biological opinions” under the act that led to restrictions on water for irrigation from the federal Central Valley Project. Those opinions, which found that water pumped from the project endangered smelt, salmon and sturgeon in California rivers and therefore mandated cuts in irrigation supply, were upheld by a federal appeals court in 2014. Bernhardt, representing Westlands, was on the losing side.
But the battle over water rights in the Central Valley isn’t over, and Bernhardt’s former clients are in the thick of it. Among the proposals that could be affected by Endangered Species Act provisions is a plan to raise the height of Shasta Dam to produce more irrigation supply for the valley. California opposes the project, but the Trump administration is pushing it ahead anyway. The act may well play into the dispute.
Other major water projects will come up; many will have implications for the mining industry and others that Bernhardt has worked for. “They’ll benefit the most from the changes in procedural requirements to consider how you harm endangered species before you get a project approved,” Hartl observes.
At the very least, those factors should add color to Bernhardt’s promotion of a rollback in the Endangered Species Act. One would think that as an official of the Interior Department, his duties would involve true stewardship of the nation’s fish, wildlife and wilderness patrimony, not so much the search for “public-private partnerships and market-based solutions” — what he calls in his op-ed “a modern vision of conservation.”
But in this case, as in so many others when politicians and bureaucrats put their heads together, the question must be asked: Whom do these people really represent?