Zinke’s No. 2 helps shift Interior Department further right

By Juliet Eilperin / The Washington Post

WASHINGTON — David Bernhardt, deputy secretary of the Department of Interior, had just left McDonald’s on his way to work last year when he started choking on his breakfast burrito.

His 2017 white Jeep Wrangler careened across Old Dominion Drive, struck a BMW in the next lane, crossed into oncoming traffic and crashed into a nearby apartment building. Medics who rushed to the scene urged him to head to the hospital. But Bernhardt — who had been on his way to a meeting at the White House Council of Environmental Quality — opted instead to call his wife for a ride home, clean himself up, and head into work. His brand-new Jeep was towed; he sported visible bruises.

“I think that I probably looked like Rocky Balboa,” Bernhardt recalled. His admirers inside and outside Interior like to tell the story — it takes more than a dangerous accident to keep him from his work.

“If it says anything, it says, you know, where I come from, you sign up to do the job and then go do it,” said Bernhardt, 49.

Bernhardt’s relentless work ethic helps explain how he’s managed to advance President Donald Trump’s pro-industry agenda over the nation’s public lands. Having worked for years as a lobbyist representing many of the very businesses he now regulates, he walked into the No. 2 job at Interior with so many potential conflicts of interest he has to carry a small card listing them all.

“This is the deep state,” said Jim Lyons, who served as deputy assistant secretary for land and minerals management under Barack Obama. “He is the guy behind the curtain who’s manipulating everything, which he can do with his wealth of knowledge and experience.”

In recent weeks his boss, Ryan Zinke, has come under increased scrutiny for a Montana land deal. If Trump reshuffles his Cabinet and Zinke steps down, it will likely be Bernhardt who steps up.

Other technocrats have already begun to rise within the administration, such as the Environmental Protection Agency’s Andrew Wheeler. On Friday, Trump announced that he would nominate Wheeler — who assumed the helm of the EPA after Scott Pruitt resigned in July — to serve on a permanent basis.

But even without the top job, Bernhardt is already helping steer the 70,000-person department.

In a year and a half, he has made it easier for federal authorities to approve drilling projects on land and offshore, has proposed narrowing habitat protections for endangered species, and is pushing California to divert more of its water from conservation to agricultural interests.

While Zinke drew headlines over multiple ethics investigations, Bernhardt focused on executing Trump’s vision to fuel the nation’s energy production.

Already, the department has offered more than 17 million acres of federal lands for oil and gas leases. This has sparked a major battle over the leases on offer: 88 percent of the parcels offered in fiscal 2017 had protests filed against them, according to the Bureau of Land Management, compared to 35 percent under the last administration.

And while the BLM has been forced to take hundreds of parcels off the auction block, it has also posted some eye-popping sales. In September, for example, the agency held a lease sale that netted $972.8 million in bonus bids for 142 parcels in New Mexico’s Chaves, Eddy and Lea counties — a record for the BLM. Oil companies extracted 142 million barrels in Eddy and Lea counties between January and August, a 56 percent increase compared to all of 2016.

If developed, those new wells will not only generate more revenue for companies and the Treasury, they will boost greenhouse gas emissions linked to climate change. BLM estimates that over the next 20 years its plan to boost drilling in southeastern New Mexico would emit greenhouse gas emissions equal to 733 coal plants operating for one year.

Bernhardt has helped spearhead this shift. An avowed champion of the rural Americans who comprise a critical part of the president’s base, he describes his mission as being shaped by witnessing his hometown’s economic collapse during the 1980s oil shale bust.

“That’s a terrible feeling, where you know a bunch of your buddies’ parents lose their jobs and there’s no hope, and nobody believes that people are helping them — whether that’s true or not,” he said. But Bernhardt — whose cavernous office at Interior headquarters is sparsely furnished, as opposed to Zinke’s dark wood paneling and animal trophies — said what he thinks “isn’t what matters to the American people in any way, shape or form.”

“My philosophy, my views are really irrelevant,” he said in a recent interview. “The views that matter are the views of the president of the United States. And, you know, obviously by joining his administration, I’ve embraced his vision for rural America. I’m committed to keeping the promises he’s made.”

Often, Bernhardt cites the law when asked his opinion. Queried on his views on climate change, for example, Bernhardt said he had virtually no legal obligation to act — even though climate change is already raising global temperatures and Interior scientists warn it is harming land and key species under the department’s control.

“The last time I checked,” he said, “there was a law that said I must provide a guy to help the Department of Energy write a report.”

Over the past two decades, Bernhardt has played key roles in both Interior headquarters and the lobbying community that works to sway the department’s decisions. He had to recuse himself from “particular matters” directly affecting 26 former clients in order to adhere to the Trump administration’s ethics requirements.

The recusals have expired for four of them, allowing Bernhardt to plunge into policymaking that has prompted critics to say he is helping his former clients.

As a partner at the law firm Brownstein Hyatt Farber Schreck, Bernhardt represented clients such as the Westlands Water District, which provides water to California farmers. Water is Westlands’ lifeblood, but it has to compete with state and federal officials’ push to supply it to municipalities and imperiled species as well. Bernhardt represented Westlands when it unsuccessfully sued Interior over the Endangered Species Act, and sat on the board of a conservative group connected to the water district, CESAR, that has challenged federal scientific findings on endangered species such as California’s delta smelt.

On Aug. 17, two weeks after Bernhardt’s recusal over Westlands Water District expired, Zinke tasked him with drafting a new plan for managing federal and state water supplies there. Interior and California officials have been tight-lipped about ongoing negotiations, but Bernhardt and his colleagues have made clear they hope to overhaul existing agreements to provide more water to agricultural interests.

Even before the recusal period ended, Bernhardt addressed a meeting of the Association of California Water Agencies and met with Interior officials working on the state’s water issues. Last month, Bernhardt was the featured speaker on a White House call announcing President Trump’s memorandum aimed at “removing unnecessary regulatory burdens” for water infrastructure projects.

“From my perspective, today’s action might be the most significant action taken by a president on Western water issues in my lifetime,” Bernhardt told reporters.

Critics say it was inappropriate.

“Bernhardt is a walking conflict of interest,” said Rep. Jared Huffman, D-Calif., a critic of DOI’s approach to California water issues. “The recusal was a sham, and the fact that they created this plan to spring into action on behalf of all their special interests after his one-year recusal expired doesn’t surprise anyone.”

Westlands, which did not respond to multiple requests for comment, is one of four organizations from which Bernhardt is no longer recused. These include North Dakota’s Garrison Diversion Conservancy District and Santa Ynez River Water Conservation District. And as Bernhardt explained, just because he represented a specific company doesn’t mean he can’t make policy decisions affecting its industry.

“So, truthfully, you can fully meet your ethical requirements appropriately and still serve the department,” Bernhardt said. To keep track of his conflicts he carries a list the size of a credit card of 22 former clients still covered by his ethics recusal, including oil industry heavyweights like Halliburton Energy Services.

Still, Bernhardt’s affiliation with his former firm has cropped up multiple times since he’s assumed office.

He abruptly canceled a Sept. 14 keynote appearance before the Colorado River Water Conservation District, citing advice from department ethics attorneys. While Interior did not disclose the exact nature of the potential conflict, emails obtained under the Colorado Open Records Act show that lawyers flagged the fact that Bernhardt’s former firm represents the Central Arizona Water Conservation District. The district is trying to blunt the impact of being the lowest-ranking beneficiary in a multistate negotiation over how to divvy up water from the Colorado River in the case of a future drought, a topic that was on the agenda for the Grand Junction, Colo., conference.

And while Bernhardt has removed himself from several decisions where Interior has come out in favor of his former clients — like the Garrison Diversion Conservancy District, which recently won approval for a controversial plan to tap water from the Missouri River — his former firm still touts its connection to him. In a Dec. 20 letter to the District doubling its monthly fees, BHFS wrote, “Many of the decision-makers in the agencies are former co-workers and colleagues.”

When Bernhardt got ready to move over to Interior’s solicitor’s office in 2005, he knew he was going to spend much of his time dealing with the Endangered Species Act. As he recounted in a speech at the Heritage Foundation this fall, “I was a little nervous.”

So he asked his aides for the entire legislative history of the act, just before leaving for a vacation at Dewey Beach, Delaware, with his wife and two young kids. They brought him 10 volumes bound in deep red covers over faded pages. They filled up nearly his entire trunk.

When he arrived at Dewey, Bernhardt told his wife, “I’m not going to leave the house the entire time. I’m going to study the entire legislative history of the Endangered Species Act.”

A gray-haired Washington hand who often speaks in a methodical, somnolent tone but can be teary at office goodbye parties, Bernhardt is never underprepared. He once gave everyone in DOI’s congressional affairs a free copy of Strunk and White’s “The Elements of Style,” instructing them to craft any memos they submit to the interior secretary with care. Former congressman Scott McInnis, R-Colo., one of his first bosses, recalled how he sometimes cracked Rodney Dangerfield jokes to try to distract Bernhardt from reading documents. “He wouldn’t laugh. He’d smile, and go back to reading.”

Whit Fosburgh, president of Theodore Roosevelt Conservation Partnership, said Bernhardt arrived at a meeting on sage grouse several months ago with “everything we’ve ever written marked up, with comments written in the margins … He is going to be prepared for a legal cross-examination when you sit down.”

And Peg Romanik, a senior career lawyer at Interior who worked for Bernhardt when he served as solicitor as well as in his current role, said Bernhardt is open to having a back-and-forth with staffers who don’t always agree with his policy views.

“He was very respectful of hearing our opinions, and he would admit when we were right,” she said.

As one of the main architects of Trump’s energy and public lands agenda, he knows how to check the boxes and follow the rules. Nowhere is that clearer than when it comes to the Endangered Species Act, which he mastered during that long-ago beach vacation. Last year, Bernhardt brought together top career officials at the Fish and Wildlife Service with political appointees to discuss how to retool Endangered Species Act regulations and gave them a 30-day deadline to produce a draft.

The proposed rule, if enacted, could mark the biggest change to federal endangered species policy in decades, making it easier for development to take place in imperiled species’ habitats.

It would instruct the department, for the first time, to analyze the economic impact of listing a species. Critics say it would impose a major financial burden on the agency, and it would only trigger federal intervention if an action harms “the whole” of a species’ key habitat, rather than just part of it.

Noah Greenwald, endangered species director for the advocacy group Center for Biological Diversity, said the plan would allow these places to be chipped away over time. The Northern spotted owl’s range is 9.5 million acres, he noted: “There’s no timber sale of old growth forest that would ever affect all 9.5 million acres.” If enacted, he added, it could pave the way for the permitting of oil and gas operations in states such as Texas, Oklahoma and New Mexico that could threaten the wide-ranging lesser prairie chicken, which is likely to be listed in the coming year.

“It’s death by a thousand cuts,” Greenwald said.

The new proposal also codifies some of the legal opinions Bernhardt wrote as solicitor a decade ago, which limit the federal government’s intervention on behalf of imperiled species. One restricts Interior from acting if a species is imperiled by “melting glaciers, sea level rise, or reduced snowpack but no other habitat-based threats,” while the other limits action unless officials determine it is “probable” a species will go extinct “within the foreseeable future.”

“These Endangered Species Act provisions are beautifully sneaky,” said William Snape, an American University law professor who also serves as the Center for Biological Diversity’s senior counsel. “I have to give the guy credit. He’s got some bombs in there.”

Speaking at the Heritage Foundation, Bernhardt called the suggestion that the proposal would undermine the law’s protections “laughable.” “The environmental standards are not changing, what’s changing is how we go about making our decisions, potentially, in less burdensome ways.”

And while Bernhardt’s critics will continue to decry many of his actions, House Natural Resources Committee Chairman Rob Bishop, R-Utah, said he’s been “a breath of fresh air” compared to many of his predecessors.

“He actually does something when we talk,” Bishop said. “That’s something that never happens with the Department of Interior.”