Bernhardt’s supporters and detractors say that while Zinke has been the public face of some of the most significant reversals of public land protections in the nation’s history, behind the scenes it has been Bernhardt pulling the policy levers to enact Trump’s aggressive energy agenda.
“Bernhardt has been running the policy show ever since he’s been there as deputy secretary,” said Kathleen Sgamma, president of the Western Energy Alliance, a Denver-based association of independent oil and gas companies.
It was Bernhardt, for example, who oversaw a controversial revision of a program to protect tens of millions of acres of habitat of the imperiled sage grouse, a puffy-chested, chickenlike bird that roams over 10 oil-rich Western states. Bernhardt’s proposal to change that plan, released just this month, would strip away protections from about 9 million acres of the sage grouse habitat, a move that in a stroke opened up more land to oil and gas drilling than any other single policy action by the Trump administration.
Bernhardt’s critics contend that much of the experience that gave Bernhardt his deep policy knowledge — namely, his years representing oil companies — creates a potential conflict of interest given that he oversees policies that could benefit companies he once represented. At the same time, they note that Bernhardt’s long experience in Washington and with the law means he is unlikely to make ethical missteps.
A spokeswoman for the Interior Department, Heather Swift, did not respond to emails requesting comment from Bernhardt. An email sent to the Interior Department’s communications office was also not returned.
Zinke, once a favorite of Trump’s, drew the president’s ire after allegations of possible conflicts of interest and violations of agency policy triggered numerous investigations. At least one of those investigations has been referred to the Justice Department, a sign the federal government may open up a criminal investigation into the former secretary.
Zinke has repeatedly denied wrongdoing. “I followed every procedure, every policy, every rule, and most importantly I followed the law,” he said in April.
Bernhardt is expected to serve as acting Interior secretary in the wake of Zinke’s departure. It remains unclear who might lead the agency in the long term. Trump could nominate Bernhardt to be the next secretary, a position that would require Senate confirmation, but it is also possible he might choose someone else. The job has typically gone to Western state lawmakers or governors.
Bernhardt’s presumed rise to acting secretary echoes the events at the Environmental Protection Agency earlier this year. In July, Scott Pruitt, then head of the EPA, was forced to step down amid a series of ethics scandals. He was succeeded in an acting capacity by his deputy, Andrew Wheeler, a former coal lobbyist with a low professional profile but a deep knowledge of the agency he ran and the regulations on industry he sought to undo.
“I see a parallel to EPA,” said Sgamma of the Western Energy Alliance. “The environmentalists wanted scalps. They got Pruitt’s scalp, but the policy didn’t change. I would expect the same thing to happen with Interior.”
Bernhardt, a lawyer and former Interior Department official in the George W. Bush administration, lacks the rugged outdoorsy image embraced by Zinke, a former Navy SEAL who drew praise from Trump for his out-of-central-casting style.
“Zinke is something of a cowboy, who often shoots from the hip and maybe speaks without knowing all the facts, and he needed a real professional who knows how the department works,” said Whit Fosburgh, president of the Theodore Roosevelt Conservation Partnership, an advocacy group for hunters, fishers and others. “It’s been David’s job to actually put what Zinke says into policy.”
Environmental and government watchdog groups say that as Bernhard has enacted those policies, he has overseen proposals that could create profits for his former clients. Rep. Raúl Grijalva, D-Ariz., who is expected to become chairman of the House Natural Resources Committee once Democrats return to the House as the majority party in January, has said he intends to look at Bernhardt’s activities within the agency.
“Mr. Bernhardt’s serious conflicts of interest are well known to us, and we’ll be scrutinizing his role in Interior Department decision-making whatever position he holds,” said Grijalva in an emailed statement.
The energy industry has benefited from policies Bernhardt has shepherded. The agency has opened up the East Coast to offshore oil and gas drilling for the first time, loosened the standards of the Endangered Species Act, weakened safety regulations for offshore drilling equipment and reduced the boundaries of national monuments to open the land to mining and drilling.
As a partner in the law firm Brownstein Hyatt Farber Schreck, Bernhardt lobbied for the oil companies Cobalt International Energy and Samson Resources. His legal clients have included the Independent Petroleum Association of America and Halliburton Energy Services, the oil-and-gas extraction firm once led by former Vice President Dick Cheney.
In August 2017, Bernhardt signed an ethics letter saying he would recuse himself from policy decisions that might stand to benefit former clients specifically.
Ethics watchdogs say that despite the fact that Bernhardt’s former clients are likely to benefit from his policy actions, Bernhardt has complied with the letter of the ethics pledge, because he has steered clear of enacting policies that have specifically benefited a single former client. Nevertheless, they argue that there remains an ethics issue because he has pushed policies that have broadly benefited the oil and gas industry, including his former clients.
“Bernhardt goes right up to the edge,” said Chris Saeger, executive director of the Western Values Project, an advocacy organization. “The spirit of these laws is that you shouldn’t use the federal government to enrich people who are close to you, people you used to work for,” he said.
As an example, Saeger’s group cited a November 2017 move by the Interior Department’s Bureau of Land Management to grant a permit to Eni, an Italian oil company and a former client of Bernhardt’s, to drill in federal Arctic waters. The permit — the first granted to a company since 2015 — came just months after Bernhardt was confirmed to his job. The agency has given out many similar drilling permits since then, “But at the end of the day, his former client is still getting what they want,” Saeger said.
Bernhardt’s plan to weaken the protection of the sage grouse also translates into a victory for his former oil industry clients, who have long sought such a change. In particular, his former client, the Independent Petroleum Association of America, has pressed for years to reduce federal protection measures on the habitat of the sage grouse, much of which is believed to contain rich deposits of fossil fuels.
In March, a group of oil companies, including the Independent Petroleum Association of America, wrote to Bernhardt to thank him for his work on actions “that rescinded and revised mitigation policies that far exceeded statutory authority.” The companies also listed policies they hoped Bernhardt would change, including the sage grouse plan.
Bernhardt’s defenders point out, though, that the sage grouse policy is so broad that it would benefit dozens of companies and industries, including farmers, ranchers and real estate developers, not just former clients of Bernhardt. “Sage grouse is a broad policy issue, not company-specific,” Sgamma said.
This article originally appeared in The New York Times.