David Bernhardt

David Bernhardt

Credentials

  • J.D., Law, The George Washington University Law School (1994). [1]
  • B.A. political science, University of Northern Colorado (1990). [2]

Background

David L. Bernhardt is the Acting Secretary of the Interior of the United States and a former lobbyist and attorney for the oil and gas industry via the Colorado law firm Brownstein Hyatt Farber Schreck. On February 4, 2019 Bernhardt was nominated by President Trump to replace Ryan Zinke as United States Secretary of the Interior following Zinke's resignation after a string of controversies. In his ethics pledge, Bernhardt said he would put off certain interactions with his former oil and gas clients until August 2019, The Guardian reported[2], [3], [4], [5], [6], [44]

Bernhardt served as the Department of the Interior's (DOI) solicitor from 2006 to 2009, among other roles. In 2007, he was also appointed by President George W. Bush to lead the International Boundary Commission between the United States and Canada. According to his archived profile at Brownstein Hyatt Farber Schreck, during his time at DOI, he played “a significant role in the development of multiple land use plans, offshore energy leasing programs, and developing new regulatory paradigms related to conventional and alternative energy development, including enhancing NEPA [National Environmental Policy Act] compliance practices and wildlife conservation measures.” [1], [7]

In his archived profile, Bernhardt bragged of his industry representation, in some cases against the DOI. Clients he had “recently represented” included: [7]

  • “The Nation’s largest federal water contractor in the Ninth Circuit Court of Appeals regarding Endangered Species Act litigation involving the Bay-Delta in California, a case widely considered one of the most complex Endangered Species litigation cases in the country.
  • “A national trade association in Federal District Court interested in defending the U.S. government’s decision to proceed with an offshore lease sale under the Outer-Continental Shelf Lands Act.
  • “An entity challenging the U.S. Fish and Wildlife Service for violating the Endangered Species Act in Federal District Court.
  • “Alternative energy developers involved in projects seeking to comply with the National Environmental Policy Act (NEPA), the Federal Land Policy and Management, the Endangered Species Act, the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act.
  • “An electric transmission facilities developer that crosses lands in federal jurisdiction.
  • “Mining companies who intend to develop potash or copper resources on private, state and Federal lands.
  • “A mining company undergoing an audit regarding royalty payments.
  • “An entity under investigation by a Federal Agency.
  • “An entity involved in energy development on Indian lands.
  • “Entities accused of violating the Department of the Interior's regulations.”

Bernhardt was confirmed as Deputy Secretary of the Interior in July 2017. Environmental groups had raised opposition to his nomination, putting forward numerous potential conflicts of interest. [8], [9]

In the early 1990s, before starting work at the Washington lobbying firm Brownstein Hyatt Farber Schreck, Bernhardt started his career working for Scott McInnis (R-CO). He then moved to a position at the Interior Department in 2001, where he faced controversy for replacing government analysis in congressional testimony with reports funded by oil companies. In 2009, Bernhardt returned to the lobbying and legal firm as its head of natural resources. [10], [11], [12]

Bernhard's relationship to former Secretary of the Interior Ryan Zinke has been compared to that between now-EPA-chief Andrew Wheeler and the man he replaced, Scott Pruitt. Describing Bernhardt's work at the agency under Zinke, Athan Manuel of the Sierra Club said, “He’s not just a mouthpiece of the secretary. He’s the guy doing the dirty work.” [11]

Over 150 environmental groups signed a letter to the Senate Committee on Energy and Natural Resources in May 2017, citing Bernhardt's years of lobbying for the oil and gas industry and his direct involvement in DOI projects that he would be in the position to approve if given the position. [13]

In his public financial disclosure reports, Bernhardt listed himself as a former board member and volunteer to the Center for Environmental Science Accuracy and Reliability (CESAR). According to Greenpeace's PolluterWatch project, CESAR produced regular reports outlining regional threats to different species in order to support and file lawsuits against the Endangered Species Act. In 2012, the Pacific Legal Foundation filed a petition on behalf of CESAR to delist a population of killer whales. CESAR's other targets have included the hookless cactus and the sage grouse. The group's consultants have included Julie MacDonald, a former Interior Department deputy assistant secretary who was found by the department’s inspector general to have meddled in scientific decisions on endangered species listings during the George W. Bush administration. In 2014, CESAR received a $10,000 donation from the “dark money” group DonorsTrust. It received $25,000 from the Charles Koch Foundation in 2015. [14], [15], [16]

Clients & Potential Conflicts of Interest

Bernhard's legal clients have included the Independent Petroleum Association of America (IPAA) and Halliburton Energy Services. [17]

WestWise analysis found that during Bernhardt's time as Deputy Interior Secretary, the agency either completed or moved forward on at least 19 policy actions that were requested or supported by 16 of his former clients. [18]

The following organizations were listed either in Bernhardt's public lobbying disclosure data filed at the FECpublic financial disclosure report, as of 2014, or his signed ethics recusal form: [14][19], [20]

As part of his nomination process, Bernhardt also submitted a list of clients in May 2017 to which he had provided legal services including: [21]

  • American Wind Energy Association — 2013-2014
  • Archer Daniels Midland Company — 2013
  • American West Potash — 2012-2014
  • Diamond Ventures — 2010-2012
  • DIJ Real Estate Capital Partners — 2012
  • Halliburton Energy Services — 2011-2013
  • Kingman Farms Ventures — 2014
  • State of Alaska — 2014-2015
  • Samson Resources Company — 2012-2013
  • Alcatle-Lucent Submarine Networks — 2013
  • Ur Energy USA —2009-2012

Cadiz, Inc.

Bernhardt has provided legal services to Cadiz, Inc., a company that has sought to drain groundwater from beneath the Mojave Desert in a controversial project that outside researchers, contrary to the findings of those hired by Cadiz, found would have significant impacts on the California desert. [22]

The company had faced a series of legal challenges in getting the project approved, including a 2015 decision from the Bureau of Land Management (BLM). However, two months after Bernhardt was sworn in, the agency reversed the previous decision and found the project would not need BLM approval. [23], [24]

Independent Petroleum Association of America (IPAA)

The IPAA has been committed to weakening the Endangered Species Act (ESA), describing it as a “broken law that does not help species,” and has launched a campaign entitled “ESA Watch” to pursue that goal. [25]

While at the DOI, Bernhardt has been charged with changing the implementation of the ESA, and in doing so has made several policy changes that would weaken the act. Publicly submitted comments on the proposed rule revealed that IPAA had supported the changes. Hudbay and Rosemont Copper, former clients of Bernhardt, also supported the changes according to public submissions by the Arizona Mining Association of which they are members of. [26], [27]

An analysis of DOI emails by the Western Values Project also found that IPAA had input changes into a plan that stripped protections from the sage grouse. “In one stroke, the action would open more land to drilling than any other step the administration has taken, environmental policy experts said,” The New York Times reported. [28], [29]

Westlands Water District

Bernhard has previously sued the Interior Department on behalf of the Westlands Water District, and in return Westlands paid his law firm approximately $1.27 million since 2011, as of reporting in 2017. Over a period of five years, Bernhardt had helped push through a settlement that could be worth over $375 million to Westlands, covering its disposal of tainted wastewater. Bernhardt had also helped write amendments to a water bill approved by Congress that also benefited Westlands by easing construction of new dams. [30]

The House Natural Resources Committee approved the settlement and rejected an amendment that would have barred former Westlands lobbyists such as Bernhardt from working on the drainage issue for five years if they joined the administration. [31]

Stance on Climate Change

2008

E&E News reported that, during his time in the Bush Administration DOI, Bernhardt helped to craft rules that exempted carbon emissions from regulatory authority. [32], [33]

A memo from Bernhardt while he was solicitor at the Department of Interior said there was no need to consult with government biologists about the impact of greenhouse gases from a proposed project on protected plants or animals. Indirect effects on wildlife, the memo says, cannot be traced to one specific source, and cumulative effects 'are of no relevance' under the species law:

“We conclude that where the effect at issue is climate change in the form of increased temperatures, a proposed action that will involve the emission of GHG [greenhouse gas] cannot pass the 'may affect' test and is not subject to consultation under ESA and its implementing regulations,” Bernhardt wrote.

Key Quotes

December 6, 2018

AP reported that, following the Trump administration's easing of restrictions on oil and gas drilling and mining activities that had been put in place to protect the habitat of the greater sage grouse, Bernhardt said the following in a statement: [34]

I completely believe that these plans are leaning forward on the conservation of sage grouse,” Bernhardt told The Associated Press. “Do they do it in exactly the same way? No. We made some change in the plans and got rid of some things that are simply not necessary.”

The charges brought sharp criticism from conservation groups who warned excessive use of drilling waivers could push sage grouse onto the list of threatened and endangered species.

August 9, 2018

Bernhardt wrote an article in The Washington Post describing changes that would weaken the Endangered Species Act: [35]

“A modern vision of conservation is one that uses federalism, public-private partnerships and market-based solutions to achieve sound stewardship,” Bernhardt wrote.

“[A]utomatically treating the threatened species as endangered places unnecessary regulatory burden on our citizens without additional benefit to the species,” he added.

Key Deeds

August 17, 2018

WestWise reported that two weeks after Bernhardt's ethics recusal for the Westlands Water District expired, Secretary Zinke sent him a memo tasking Bernhardt with speeding water supply delivery while limiting environmental review under the Endangered Species act — the same issues that Bernhard had lobbied on for years. [18], [36] 

January 2018

The DOI agreed to a “land swap” deal that would allocate a portion of Izembek National Wildlife Refuge to the King Cove Corporation and allow the expansion of roads. “The swap is the first step to building a road that could endanger numerous migratory birds, brown bears and caribou while threatening to close off access to sportsmen,” The Wilderness Society reported. [37]

This appalling move by the Trump administration is the result of a backroom deal that deprives the public of an opportunity to comment and defend the Interior Department’s science-based decisions against the road,” said Nicole Whittington-Evans, Alaska regional director at The Wilderness Society, in a statement. [37]

February 2017

DeSmog reported that the DOI, while under management by Zinke and Bernhardt, instructed the Bureau of Land Management, which is in the Interior Department, to revise its rules on methane emissions from natural gas drilling on public lands. The changed rules would greatly benefit large energy companies, with those among the most to gain including ExxonMobil, Devon Energy, and Encana Energy. [38]

April 19, 2016

Testified before the House Committee on Natural Resources regarding endangered species. View video below.

Bernhardt also detailed his work on the Endangered Species Act in a supplied disclosure form to the Committee: [39]

“David Bernhardt has worked on Endangered Species Act matters for over twenty years; including while serving as the Solicitor of the Department of the Interior, as an attorney in private practice, and as a congressional aide. David has counseled the Secretary of the Interior and other Interior policymakers to help make challenging ESA decisions. He was also tasked with implementing and defending those decisions. In private practice, David has litigated against the federal agencies when failing to administer the act to protect species, as well as when administering the law in an arbitrary and capricious way. He also has extensive experience working with the Services to develop conservation plans, habitat conservation plans, and multi- species conservation plans.”

May 6, 2015

Bernhardt testified before the Senate Committee on Environment and Public Works regarding endangered species. The hearing was entitled “Fish and Wildlife Service: The President’s FY2016 Budget Request for the Fish and Wildlife Service and Legislative Hearing on Endangered Species bills.” In his testimony, Bernhardt criticized proposed changes that would protect potential future habitat of endangered species affected by climate change: [40]

“Unoccupied habitat is habitat that is not currently occupied by a listed species. To deal with the anticipated effects from climate change, the Service and NOAA Fisheries are proposing changes to their regulations that would vastly expand their authority to designate unoccupied areas as critical habitat. By changing a few words in a regulation, the Services would fundamentally alter the role that the designation of unoccupied areas has historically played in the ESA regulatory scheme.

“Whatever one may think of the Services' concern for the effects that climate change may have on critical habitat, their proposed changes to 50 CFR § 424.12 to deal with those effects exceed their authority under the ESA for the following reasons […]”

2014

While working as an attorney at Brownstein Hyatt Farber Schreck, Bernhardt represented the National Ocean Industries Association as an intervenor defendant, defending the approval of two lease sales in the Gulf of Mexico where the Deepwater Horizon spill had previously occurred. Environmental groups alleged violations of the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), and the Administrative Procedure Act (APA). [41]

2014

Bernhardt argued against a 2009 Biological Opinion issued by the National Marine Fisheries Service (NMFS) that had been put in place to protect endangered fish species in the Delta Mendota Canal. Bernhardt argued on the side of Westlands Water District, among the plantiffs-appellants in the case. [42]

2001

Bernhardt prepared congressional testimony on Arctic drilling, Bernhardt relied on reports funded by BP while dismissing the government's own scientists. [43], [12]

Affiliations

  • United States Department of the Interior (DOIDeputy Secretary (Since August 2017). Solicitor (2006 – 2009), Deputy Solicitor (2005 – 2006), Counselor to the Secretary of the Interior (2004 – 2005), Counselor to the Secretary and Director of Congressional and Legislative Affairs (2001 – 2004), Special Assistant to the Secretary of the Interior (March – April 2001). [1], [21]
  • Center for Environmental Science Accuracy and Reliability (CESAR) Board member and volunteer, resigned subsequent to his 2017 disclosure report submission. [14]
  • Bernhardt Brothers Land and Cattle LLC — Board Member, since 2012[14]
  • Virginia Board of Game and Inland Fisheries — Board member/gubernatorial term appointment (2012–2016). [14]
  • Brownstein Hyatt Farber Schreck — Former shareholder and department chair, natural resources. Associate (August 1998 – March 2001). [4]
  • The Honorable Scott McInnis, U.S. House of Representatives  — Various legislative aide positions (1993-1998). [21]
  • Stuver & George, P.C. — Law Clerk (May - August 1992). [21]

Social Media

Publications

  • At Interior, we’re ready to bring the Endangered Species Act up to date,” The Washington Post, August 9, 2018
  • “Guiding Principles in Informational Privacy: The Rules are Changing,” The Colorado Lawyer, April 2000. [21]
  • “The U.S. Fish and Wildlife Service Wants to Hear from You, but Don't Count Your Credits Too Quickly,” Irrigation Leader, April 2012.  [21]
  • “Outlining Key ESA Policy Developments in 2009, From a Former Insider's Perspective,” ALI-ABA Course Study Species Protection: Critical Legal Issues, November 5–6, 2009.  [21]

Resources

  1. David Bernhardt,” LinkedIn. Accessed December 17, 2018. Archived .pdf on file at DeSmog.

  2. David Bernhardt - Deputy Secretary of the Interior,” U.S. Department of the Interior. Archived December 17, 2018. Archive.fo URL: https://archive.fo/hBOhU

  3. Lobbyist Profile: Bernhardt, David L,” OpenSecrets.org. Accessed December 17, 2018.

  4. Brownstein Names Two New Executive Committee Members,” Brownstein Hyatt Farber Schreck, February 27, 2017. Archived December 18, 2018. Archive.fo URL: https://archive.fo/6ZwY0

  5. Julie Dermansky. “What America Still Stands to Lose as Zinke Leaves Interior and Ex-Oil Lobbyist David Bernhardt Stands by,” DeSmog, December 16, 2018.

  6. Emily Holden. “Former fossil fuels lobbyist to head interior department as Zinke exits,” The Guardian, December 16, 2018. Archived December 17, 2018. Archive.fo URL: https://archive.fo/6RGNr

  7. David Longly Bernhardt,” Brownstein Hyatt Farber Schreck. Archived March 13, 2016. Archive.fo URL: https://archive.fo/DhVjy

  8. Grace Hauck. “Who is David Bernhardt, the new deputy Interior secretary?CNN, July 25, 2017. Archived December December 17, 2018. Archive.fo URL: https://archive.fo/U690l

  9. Bettina Boxall. “Here are a few of the potential conflicts a key Interior Department nominee may face,” Los Angeles Times, May 17, 2017. Archived December 17, 2018. Archive.fo URL: https://archive.fo/PmZ7K

  10. “114th Congress Disclosure Form” (PDF), April 19, 2016. retrieved from House.gov.

  11. Rebecca Leber. “'The Guy Doing the Dirty Work' at Trump’s Interior Department is an Ex-Oil Lobbyist Straight Out of the Swamp,” Mother Jones, October 9, 2018. Archived December 18, 2018. Archive.fo URL: https://archive.fo/Ux6gO

  12. The Ungreening of America: Behind the Curtain,” Mother Jones, September/October 2003 issue. Archived December 18, 2018. Archive.fo URL: https://archive.fo/2voCx

  13. “Please Oppose David Bernhardt For Deputy Secretary of the Interior” (PDF), May 17, 2017. Retreived from Center for Biological Diversity.

  14. Executive Branch Personnel Public Financial Disclosure Report,” March 2014. Retrieved from DocumentCloud. 

  15. PETITION OF THE CENTER FOR ENVIRONMENTAL SCIENCE, ACCURACY & RELIABILITY, EMPRESAS DEL BOSQUE, AND COBURN RANCH TO DELIST THE SOUTHERN RESIDENT KILLER WHALE DISTINCT POPULATION SEGMENT UNDER THE ENDANGERED SPECIES ACT” (PDF), Pacific Legal Foundation, August 2012.

  16. Petition Seeks Delisting of Pacific Northwest Orcas,” EarthFirst! Newswire, August 2, 2012. Archived December 18, 2018. Archive.fo URL: https://archive.fo/d72Og

  17. Zinke’s Likely Successor Is a Former Oil Lobbyist Who Has Influenced Trump’s Energy Policy,” The New York Times, December 15, 2018. Archive.fo URL: https://archive.fo/0FfFt

  18. Jesse Prentice-Dunn. “Walking conflict of interest,WestWise, December 17, 2018. Archived December 18, 2018. Archive.fo URL: https://archive.fo/gzPGW

  19. Lobbying disclosure search via disclosures.house.gov. Search performed December 17, 2018. Supporting documents on file at DeSmog.

  20. “Subject: Ethics Recusal” (PDF), The Deputy Secretary of the Interior, August 15, 2017. Retrieved from Bloomberg.

  21. United States Senate Committee on Energy and Natural Resources: Statement for Completion by Presidential Nominees” (PDF), February 16, 2011.

  22. Ian James. “'It would likely dry up.' Rare desert spring imperiled by company's plan to pump groundwater, researchers say,” The Desert Sun, April 14, 2018. Archive.fo URL: https://archive.fo/lleMI

  23. “Dear Mr. Pery and Mr. Slater:” (PDF), United States Department of the Interior Bureau of Land Management, October 2, 2015. Retrieved from the Center for Biological Diversity.

  24. “Dear Mr. Slater” (PDF), United States Department of the Interior Bureau of Land Management, October 13, 2017. Retrieved from Cadiz, inc.

  25. Endangered Species,” IPAA. Archived December 18, 2018. Archive.fo URL: https://archive.fo/WUs6V

  26. Darryl Fears. “Endangered Species Act stripped of key provisions in Trump administration proposal,The Washington Post, July 19, 2018. Archived December 18, 2018. Archive.fo URL: https://archive.fo/cfFcY

  27. 2018-09-21 IPAA PAW Comments on ESA - Regulatory Reforms,” Retrieved from Regulations.gov.

  28. Report: Full analysis of oil and gas industry communication with Interior and State Bureau of Land Management on sage grouse overhaul,” Western Values Project, February 19, 2018. Archived December 18, 2018. Archive.fo URL: https://archive.fo/DfNCC

  29. Coral Davenport. “Trump Drilling Plan Threatens 9 Million Acres of Sage Grouse Habitat,” The New York Times, December 6, 2018. Archive.fo URL: https://archive.fo/H1TN6

  30. Lobbyist who once sued Interior named to be department’s No. 2 official,” The Fresno Bee, April 28, 2017. Archived December 18, 2018. Archive.fo URL: https://archive.fo/vpSXj

  31. Michael Doyle. “The West has a tricky, expensive water problem – and even solving it is controversial,” The Sacramento Bee, April 27, 2017. Archived December 18, 2018. Archive.fo URL: https://archive.fo/3kYv1

  32. THE BIG OIL ALLIES AND BELTWAY INSIDERS LEADING TRUMP’S DEPARTMENT OF THE INTERIORAND HOW TO…” Pacific Standard, November 28, 2016. Archived December 19, 2018. Archive.fo URLhttps://archive.fo/DIUEO

  33. Endangered Species: Bush admin told agencies to ignore greenhouse gas emission in permitting,” E&E News, October 15, 2008. Retrieved from the Center for Biological Diversity.

  34. Matthew Brown. “US to ease oil drilling controls protecting imperiled bird,” AP, December 6, 2018. Archived December 17, 2018. Archive.fo URL: https://archive.fo/gBBP1

  35. David Bernhardt. “At Interior, we’re ready to bring the Endangered Species Act up to date,” The Washington Post, August 9, 2018. Archived December 18, 2018. Archive.fo: https://archive.fo/08ix2

  36. “Subject: California Water Infrastracture” (PDF), The Secretary of the Interior, August 17, 2018.

  37. Max Greenberg. “Obscure Alaska road project sets destructive precedent for wilderness,” The Wilderness Society, January 22, 2018. Archived December 18, 2018. Archive.fo URL: https://archive.fo/wHtLM

  38. Larry Buhl. “Congress Plans Back Door Tactic to Scrap Methane Pollution Rule — and These Are the Oil Companies That Will Benefit,” DeSmog, February 3, 2017.

  39. COMMITTEE ON NATURAL RESOURCES 114 th Congress Disclosure Form” (PDF), House Committee on Natural Resources, April 19, 2016.

  40. Testimony of David Bernhardt Before the U.S. Senate Committee on Environment and Public Works Hearing Entitled, 'Fish and Wildlife Service: The President's FY2016 Budget Request for the Fish and Wildlife Service and Legislative Hearing on Endangered Species bills',” (PDF)U.S. Senate Committee on Environment and Public Works. Archived May 12, 2015. 

  41. OCEANA et al v. BUREAU OF OCEAN ENERGY MANAGEMENT et al,” Law360.com.

  42. San Luis and Delta-Mendota Water Authority v. Gary Locke, No. 1:09-cv-01053 (2014)

  43. Gale Courey Toensing “Interior Solicitor David Bernhardt in the spotlight,” Indian Country Today, June 4, 2007. Archived December 28, 2017. Archive.fo URL: https://archive.fo/kll8R

  44. Coral Davenport. “Trump Chooses David Bernhardt, a Former Oil Lobbyist, to Head the Interior Dept,” The New York Times, February 4, 2019. Archived February 5, 2019. Archive.is URLhttp://archive.is/PpX9R

Other Resources