Opinion

Ethical Cloud Hangs Over David Bernhardt Ahead of Confirmation Vote

By Brendan Fischer & Delaney Marsco
April 4, 2019 at 12:01 am ET

The ethical cloud hanging over President Donald Trump’s nominee to lead the Department of the Interior, David Bernhardt, raises questions about whether increasingly scarce natural resources will remain protected for the public – or whether the wealthy and well-connected get privileged access.

For years, Bernhardt lobbied for the big oil, gas and agricultural interests that he now regulates as the Interior Department’s acting secretary. If confirmed, he will have broad authority to benefit his former lobbying clients, often at the public’s expense.

Bernhardt’s long list of potential conflicts might not raise alarm bells if he were scrupulous about avoiding even the appearance of impropriety. But while Bernhardt served as deputy Interior secretary, it was difficult to tell whether he was working on behalf of the American people or on behalf of the lobbying interests that used to fund his paycheck.

Here is one example. Before entering government, Bernhardt lobbied and litigated on behalf of Westlands Water District, which has federal contracts to provide water to powerful agricultural interests in California.

Because water is scarce in California, unlimited access to water for everyone isn’t a reality.

Westlands wants more water. An impediment is the Endangered Species Act: Diverting water to Westlands poses a threat to certain fish species that are vital to the region’s ecosystem. So, in order to maximize their water supplies, Westlands needs to minimize federal protections for those fish.

And in order to do that, Westlands has become a master of the influence game. Its executives max out contributions to both Democrats and Republicans in Congress. It hires high-powered former government officials, such as Rep. Devin Nunes’ (R-Calif.) former chief of staff. Its employees and lobbyists have ties to the Center for Environmental Science, Accuracy & Reliability, which has been characterized as a front group pushing Westlands’ agenda. And Westlands pays millions to lobbyists and lawyers – including, until recently, Bernhardt.

When Westlands sued to challenge the endangered species protections, Bernhardt argued the appeal before the Ninth Circuit appellate court. He joined the board of Westlands’ apparent front group, CESAR. And for years, he lobbied Congress and Interior, which culminated in a 2016 law that included specific provisions directing the department to maximize the diversion of water to Westlands, and to minimize those endangered species protections that got in the way.

Bernhardt’s advocacy for Westlands’ interests continued after he joined the government. Shortly after becoming deputy Interior secretary, he used his official authority to institutionalize those same provisions he lobbied on. This is despite signing an ethics pledge agreeing to recuse from particular matters he had lobbied on in the prior two years. And this is despite pointed questions from Sen. Lisa Murkowski (R-Alaska) about Bernhardt’s relationship with Westlands during his confirmation hearing.

His conduct violates ethics rules, and it has real consequences. If Bernhardt’s lobbying client gets its way and California’s salmon and smelt die, the whole ecosystem will be disrupted. The water becomes toxic. And when your dog decides to take a little swim, it doesn’t come out.

Ethics rules are designed to ensure that decisions affecting millions of people are decided on behalf of the public, not on behalf of the special interests that used to sign one official’s paychecks. This isn’t just about the fish; this is about protecting the water for everybody. These ethics rules exist so important decisions, like those determining how increasingly scarce resources are allocated, are made in the public’s interest.

This is only the tip of the iceberg. Westlands is just one of the powerful interests that used to pay Bernhardt to lobby for them. He has at least 26 other former clients that also present potential conflicts, and roughly 20 of those clients have business before Interior, according to the Center for American Progress.

What’s happening with Bernhardt and Westlands may only be a snapshot of what’s to come. Interior and its bureaus are responsible for protecting the nation’s natural resources. The agency manages public lands and minerals, national parks and wildlife refuges, and environmental conservation efforts. Interior’s responsibilities have nationwide consequences, and they will only become more important as resources become scarcer. America deserves public servants who take these responsibilities seriously and are committed to protecting our resources for all of us – not just for the wealthy interests that used to pay their salaries.

 

Brendan Fischer and Delaney Marsco are attorneys at the Campaign Legal Center.

Morning Consult welcomes op-ed submissions on policy, politics and business strategy in our coverage areas. Updated submission guidelines can be found here.

Do NOT follow this link or you will be banned from the site!