Former oil and gas lobbyist David Bernhardt was sworn in as the Interior Department’s second-in-command with a list of conflicts of interest so long that he has to carry a card to remember them all. Now, the New York Times reports that Acting Secretary Bernhardt delivered a policy favor to one of his largest former clients just months into his time at the agency, a clear violation of his ethics recusals. This revelation raises serious questions about how Bernhardt would enact the agendas of his former clients should he be permanently confirmed as Interior secretary.
In recent years David Bernhardt lobbied and litigated on behalf of the powerful Westlands Water District, a major water user in California. Specifically, Bernhardt lobbied to reduce protections for the delta smelt, an endangered fish that would be harmed by Westlands’ push to drain water from the San Francisco Bay Delta and send it to farmers further south. In 2014, Bernhardt represented Westlands in a lawsuit seeking to weaken or lift Endangered Species Act protections for the smelt. In total, Westlands paid Bernhardt’s law firm more than $1.3 million in lobbying fees.
Upon taking office as deputy Interior secretary, Bernhardt listed Westlands Water District as a previous source of income on his financial disclosure and added the district to his ethics recusal letter, pledging not to participate in issues in which his former client has a “financial interest directly and predictably affected by the matter, unless I first obtain a written waiver.”
However, just four months into his tenure at Interior, Bernhardt directed agency officials to begin weakening protections for the delta smelt and the winter-run Chinook salmon to allow larger water flows for agricultural users — a clear conflict of interest.
Bernhardt acknowledged directing his staff to weaken protections for the smelt, but said he first conferred with Interior Department ethics officials. Curiously, Bernhardt only received verbal approval from ethics officials, not a written response. This admission only raises further questions. Did Bernhardt tell ethics officials that he had lobbied and litigated on the exact same policy in recent years? How many times has Bernhardt explored whether he needed an ethics waiver while in office?
Virginia Canter, the chief ethics counsel for Citizens for Responsibility and Ethics, told the New York Times that Bernhardt should have received written approval from ethics officials to work on rolling back delta smelt protections: “If he didn’t receive it in writing, it’s still an open question of whether he violated the pledge, and worthy of an investigation.”
Bernhardt dodged questions on upholding ethical standards during his deputy secretary confirmation hearing before the Senate Energy and Natural Resources Committee. When asked by Senator Maria Cantwell under what circumstances he would seek an ethics waiver and whether he would make such a waiver public, Bernhardt did not commit to transparency, instead claiming, “I do not know under what circumstances I might seek a waiver because I do not anticipate doing so. However, should I seek a waiver from the Designated Agency Ethics Official, I will discuss whether such a request should be made public.”
Just as Bernhardt has attempted to obscure his ethics requirements, he has also attempted to hide who he is meeting with by releasing calendars littered with entries such as “external meeting” or “call,” but devoid of any information as to who actually gets access to Bernhardt’s office. Last week the House Natural Resources Committee requested that Bernhardt provide documents showing the full extent of his calendar and meetings, information that has not been made public to date.
While President Trump tweeted his intent to nominate David Bernhardt for Interior Secretary, he has not formally done so. Once that happens, it is critical that the Senate — particularly the Energy and Natural Resources Committee, which will hold Bernhardt’s confirmation hearing — fully consider his extensive conflicts of interest and lack of commitment to fulfilling his ethics recusals. While Bernhardt is sure to offer platitudes about his unwavering commitment to ethics, his actions to aid Westlands Water District demonstrate that his ethics recusals aren’t worth the paper they are printed on.