Coloradan David Bernhardt, who is expected to win confirmation, has come under fire for potential conflicts from his years as a lobbyist for oil and gas, coal, and water interests. He told senators at a confirmation hearing on March 28 that he has “implemented an incredibly robust screening process” to guard against conflicts of interest.
That includes following ethics guidelines that require Bernhardt to recuse himself for one to two years from decisions that could affect former clients. But when the requirement for those recusals expire this August, Bernhardt said he no longer intends to step aside.
“I have a very particular skill set, strength, creativity, judgement,” Bernhardt told the Senate Energy and Natural Resources Committee at a confirmation hearing. “I am basically handcuffed and not in the game for the American people if I am recusing myself, and I don’t think that is really the best strategy.”
Bernhardt, a native of Rifle, brings years of experience as an energy lobbyist and a top official at the Interior Department. He has been in the agency’s No. 2 position since 2017. He was previously the department’s top lawyer and an aide to Interior Secretary Gale Norton during the George W. Bush administration.
Bernhardt’s industry ties have generated controversy among environmentalists and watchdog groups since President Trump nominated him to lead the natural resources agency. More than thirty environmental groups called on the Senate to block his nomination in a letter sent to the Senate Energy and Natural Resources Committee on march 28. Several environmental activists in polar bear costumes protested outside the Senate building ahead of the hearing.
The committee’s top Democrat, Senator Joe Manchin of West Virginia, asked if Bernhardt would continue to recuse himself, “since so many of your clients are going to be working directly with this agency.”
“I will follow that responsibility for the period of time and then get in and be on the American team and win for the American team,” Bernhardt said. “I am actually pretty good at going up against these guys, and I don’t have any problem in doing that. I would say you want your ‘A’ quarterback playing for your team.”
The Interior Department manages 500 million acres nationwide and is in charge of national parks and forests, protection for endangered species, and permits for mining and energy development on federal land.
As a former lobbyist — most recently the head of the Washington, D.C., office of Denver-based Brownstein Hyatt Farber Schreck — Bernhardt has represented energy companies that sought to expand their reach onto federal lands and sub-surface rights. His clients included energy giants Halliburton and the Independent Petroleum Association of America.
Bernhardt has 27 former clients and employers that could create conflicts with his oversight at Interior, according to his ethics disclosure. Former clients include the Rosemont Copper Company, which has sought to develop a large open-pit copper mine in Arizona’s Coronado National Forest.
He also represented groups that pushed to loosen some protections for the greater sage-grouse, including Safari Club International and the Independent Petroleum Association of America. Four environmental groups filed a lawsuit against Bernhardt last week challenging recently revised plans that would allow more energy development in sage-grouse habitat in seven Western states.
Bernhardt has the most potential conflicts of interest of any of President Trump’s 31 cabinet members, according to a recent analysis from the Center for American Progress. The group found that 20 of Bernhardt’s former clients have actively lobbied the Interior Department over the last year.
“I think you are so conflicted that if you get confirmed you are going to have one of two choices: One, you are going to have to disqualify yourself from so many matters that I don’t know how you are going to spend your day. Or two, you are going to make decisions that either directly or indirectly affect your former clients and be regularly violating your ethics pledge,” said Senator Ron Wyden, a Democrat from Oregon.
Supporters say the criticism is unfair, and that Bernhardt benefits from years of knowledge of land-use issues from both inside and outside the agency.
“The very qualities that make you qualified are being portrayed by detractors as strikes against you,” Senator Cory Gardner told Bernhardt at the hearing. “Instead of being portrayed as a competent lawyer who represents clients zealously and ably, you are being painted as compromised and in the pockets of industry.”
Gardner and Bernhardt have known each other for more than twenty years, since they both worked for former Colorado state representative Russell George. Gardner said the nominee is “an honest man” and “one of the finest people I have ever worked with.”
“Why isn’t the department giving the same level of intensity to cleaner forms of energy development that it is giving to fossil fuels development?” Cortez Masto asked.
Bernhardt said he does not intend to have a bias against renewables.
“Our position is not that one project should move faster than another, our position is that we should move them all together,” he said.
Senator Martha McSally, a Republican from Arizona, asked Bernhardt to focus on addressing a culture of sexual harassment among employees of Grand Canyon National Park and invited him to visit the park with her.
“It is atrocious,” McSally said of sexual harassment issues at the park. “It sounds like a bunch of frat boys that just think they can get away with an environment of toxicity and harassment and bullying.”
The Western Values Project launched ad campaigns in Colorado and Arizona this week calling on Gardner and McSally to oppose the nomination. Both lawmakers are up for re-election in 2020.
Despite the controversy surrounding Bernhardt, lawmakers on both sides of the aisle indicated they thought Bernhardt would easily gain Senate approval for the job. The Senate voted 53-43 in 2017 to approve him for the deputy post. Michael Bennet, Colorado's other senator, was among the ‘yes’ votes then, but has stated he would not support Bernhardt as Secretary of Interior.
“During his tenure as Deputy Secretary of the Interior, Mr. Bernhardt has worked to revoke national methane standards, drill in the Arctic National Wildlife Refuge, and limit input from state and local officials with respect to the oil and gas leasing process in Colorado," Bennet said in in February. “Although I respect David Bernhardt as a Coloradan, I cannot support his nomination to serve as Secretary of the Interior.”
Bernhardt’s predecessor, Ryan Zinke, resigned late last year amid a flurry of ethics probes. Zinke faced at least fifteen investigations into ethics complaints that include allegations that he promoted projects for his own political interests and misused taxpayer money. Zinke was cleared in some of the inquiries, but others are ongoing.
Allison Winter is a Washington, D.C., correspondent for The Newsroom; this story is reprinted with permission from the Colorado Independent.