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(Reading this is almost enough to bring out my latent ecoterrorism.)
NY Times, Feb. 12, 2019
Top Leader at Interior Dept. Pushes a Policy Favoring His Former Client
By Coral Davenport
WASHINGTON — As a lobbyist and lawyer, David Bernhardt fought for years
on behalf of a group of California farmers to weaken Endangered Species
Act protections for a finger-size fish, the delta smelt, to gain access
to irrigation water.
As a top official since 2017 at the Interior Department, Mr. Bernhardt
has been finishing the job: He is working to strip away the rules the
farmers had hired him to oppose.
Last week President Trump said he would nominate Mr. Bernhardt to lead
the Interior Department, making him the latest in a line of officials
now regulating industries that once paid them to work as lobbyists.
Others include Andrew Wheeler, a former coal lobbyist who now heads the
Environmental Protection Agency after the resignation of Scott Pruitt
amid ethics scandals. William Wehrum, the nation’s top clean-air
regulator, is a lawyer whose former clients included coal-burning power
plants and oil giants.
If confirmed as the next Secretary of the Interior, Mr. Bernhardt would
succeed Ryan Zinke, who left in January under a cloud of ethics
investigations.
For the California farmers on whose behalf he once lobbied, Mr.
Bernhardt’s actions to weaken environmental protections would free up
river water, an asset of incalculable value as climate change propels
California toward a hotter, drier future. Rerouting river water would
also devastate the regional ecosystem of the San Francisco Bay Delta,
scientists say, imperiling dozens of other fish up the food chain and
affecting water birds, orcas and commercial fisheries and encouraging
toxic algal blooms.
Mr. Bernhardt received verbal approval from an Interior Department
ethics official before initiating the rollback of protections for the
smelt, delivering on a campaign pledge by President Trump to release
water for the farmers. If the plan goes through, the water could be
diverted from the rivers to the fields as soon as December.
It is not the first time Mr. Bernhardt’s official duties have converged
with his earlier work as a lobbyist. Before joining the Interior
Department in 2017 as the second in command, he lobbied for oil and gas
companies. The Interior Department controls drilling rights for millions
of acres of federal land and coastal waters.
Mr. Bernhardt also worked as a lobbyist and lawyer for the Westlands
Water District, which represents California farmers who have been
fighting for decades against the delta smelt for access to the river
water that both need to survive.
The smelt is at the heart of one of the fiercest battles in California’s
decades of water wars. It is a fight that pits agribusiness, which needs
irrigation to thrive, against environmentalists and commercial fishermen
defending the ecosystem of the vast San Francisco Bay Delta, the rivers
that drain it, and the stretch of the Pacific Ocean into which it empties.
The environmentalists have long had the Endangered Species Act on their
side, thwarting agricultural interests like the Westlands Water
District. Mr. Bernhardt’s efforts to weaken the Endangered Species Act
represent a historic power shift.
Mr. Bernhardt has opened a broad, national effort to overhaul the
Endangered Species Act. At the same time, he has taken a hands-on
approach in the narrow policy change of removing protections for the
delta smelt, which could deliver an economic win in the Westlands Water
District.
In an interview, Mr. Bernhardt acknowledged that, in late 2017, four
months after joining the Interior Department, he directed David Murillo,
a senior water-resources official for the mid-Pacific region, to begin
the process of weakening protections for the smelt and another fish, the
winter-run Chinook salmon, to free up river water for agriculture.
A month later, Mr. Murillo’s office started the process of weakening the
protections. Last week it followed up with a more detailed, 871-page
proposal on diverting the water.
Because Mr. Bernhardt’s actions would disproportionately benefit one of
his former clients, independent ethics specialists said that, under the
terms of the Trump administration’s ethics pledge, which Mr. Bernhardt
signed, he should not have been given clearance to act. Its “revolving
door” provision requires former lobbyists to recuse themselves for two
years from any particular matter or specific issue on which they lobbied
in the two years before joining the administration.
“This is a clear case of violating the ethics code, and a clear conflict
of interest,” said James Thurber, who teaches a course on ethics and
lobbying at American University in Washington. “He was appointed and, in
less than a one-year period, then he started advocating for what he had
lobbied for. It’s not a gray area.”
The Interior Department ethics lawyers stood by the decision to approve
the action. And, in an interview, Mr. Bernhardt said he was extremely
sensitive to ethics issues. “This is an area where I try to be very,
very careful,” he said. “My view is, I signed an ethics agreement, I
need to be in compliance with that ethics agreement. And I need to get
good advice so I don’t make mistakes. Everything I do, I go to our
ethics officers first.”
Water Wars
For decades Westlands Water District, a state-chartered organization
covering an area the size of Rhode Island, has fought for river water on
behalf of the 700 or so almond, cotton and tomato farmers of
California’s arid San Joaquin Valley.
The farmers’ chief goal in the district has been to weaken the
Endangered Species Act protections of the smelt, a silvery,
cucumber-scented fish found only in the San Francisco Bay Delta, and its
fellow river resident, the winter-run Chinook salmon. The winter-run
Chinook salmon is listed as “endangered” and the smelt is “threatened”
(one step below endangered), which entitles their watery habitat to
federal protection and restricts use of water for irrigation.
Biologists say the protections have many benefits. “This is not just
about two boutique species of fish,” said Jonathan Rosenfield, lead
scientist at The Bay Institute, a nonprofit research organization in San
Francisco, citing the increased risk of algal blooms in the San
Francisco Bay Delta. “Those algal blooms create the kind of toxin where,
when dogs jump into the water to go swimming, they don’t jump out,” he said.
Scientists also say the plan violates the Endangered Species Act because
it requires that changes like these be based on the best available
science, and the smelt remains as threatened as ever.
“I’m steeped in the science,” Mr. Rosenfield said. “If anything, the
research indicates that we’re not doing enough to protect these fish
from going extinct.”
Local farmers see something else: crops suffering from years of drought.
“These Westlands farmers are growing the nation’s food, the world’s
food, and as a result of these protections on fish, their water supplies
are drastically reduced,” said Timothy Quinn, who until last year led
the Association of California Water Agencies and is now a research
scholar at Stanford University’s Water in the West program.
For the farmers themselves, the water represents an economic lifeline.
“It’s a foundational need for us,” said William Boudreau, a member of
Westlands’ Board of Directors and executive vice president of Harris
Farms, which grow lettuce, tomatoes, almonds and other crops. “If we get
this water, it means our communities can thrive, we can employ people.
Without water, it’s very difficult to farm. There are dramatic job
losses. It reduces our food supply. There’s human suffering.”
If the protections on the fish were lifted, Westlands would not be the
only beneficiary — water would also flow to surrounding water districts.
But because of a quirk in California law, Westlands would likely be the
main beneficiary, according to Jeffrey Mount, a water management expert
with the Public Policy Institute of California. That’s because river
water in California is distributed according to a longstanding
first-come-first-served system, and Westlands is low on the list.
“Westlands is the most penalized under the current system,” Mr. Mount
said. “But if the protections on the fish are relaxed, they will be one
of the biggest winners.”
Mr. Bernhardt disagrees. “It’s a massive project,” he said of the broad
Central Valley system for distributing water to farmers. “It’s 400 miles
of project. The coordinated operations involve 25 million people. These
are big, big policy things.”
Mr. Bernhardt said his actions reflected Mr. Trump’s broader agenda of
helping rural America, including a campaign pledge to deliver water to
all the Central Valley farmers. “The president does have a policy that
he wants us to deliver water more efficiently, and it’s good policy.” he
said. “I don’t believe for a minute that I’m doing things to benefit
Westlands. I’m doing things to benefit America.”
$1.3 Million in Lobbying Fees
In 2011 the farmers of Westlands hired Mr. Bernhardt, who worked for the
firm Brownstein Hyatt Farber Schreck. During his five years as lobbyist
and lawyer for the district, it paid his firm at least $1.3 million in
lobbying fees, his disclosure reports show.
For Westlands, Mr. Bernhardt said he lobbied Congress on a broad water
infrastructure bill, but his lobbying was focused on one specific
section of the bill: a provision to weaken smelt and salmon protections,
and divert water to the Central Valley farmers. That bill passed, but it
resulted in the release of only small amounts of river water for
irrigation in Westlands, and will do so only through 2021.
Weakening the underlying Endangered Species Act protections would free
up much more water.
In 2014, Mr. Bernhardt, on behalf of Westlands, joined a legal petition
asking the Supreme Court to take up a case seeking to weaken or lift
Endangered Species Act protections on the delta smelt. The same year, he
made oral arguments in a case that pitted Westlands and a half-dozen
other California water districts against the federal government and
sought to weaken Endangered Species protections on the winter-run
Chinook salmon.
In both cases, Mr. Bernhardt argued that the protections for the fish
relied on flawed scientific and legal findings. In both cases, Mr.
Bernhardt and his clients lost.
In 2016 Donald Trump raised the issue of the delta smelt at a campaign
rally in Fresno, assailing policies designed “to protect a certain kind
of three-inch fish.”
“We’re going to start opening up the water,” he said.
The next year, the Trump administration began taking steps to make that
happen. Mr. Bernhardt led the effort after being confirmed as the deputy
Secretary of the Interior Department in July 2017. He had de-registered
as a lobbyist for Westlands in November 2016.
After his confirmation, Mr. Bernhardt signed the Trump administration’s
ethics pledge. Four months later, in November 2017, Mr. Bernhardt’s
public records show that he held four phone calls with Mr. Murillo, the
Interior Department official with the legal authority to initiate the
process to revise protections for the delta smelt and winter-run chinook
salmon. Other people were on the calls, as well.
The outcome of those conversations was that Mr. Bernhardt told Mr.
Murillo to begin the process of changing the protections for the fish
and to finish as quickly as possible, according to three people familiar
with the matter. In December, Mr. Murillo began that process.
Mr. Murillo, who retired from the Interior Department in November,
declined to comment on the record.
Before phoning Mr. Murillo, Mr. Bernhardt said, he had received verbal
clearance from an Interior Department ethics lawyer. Technically, the
lawyer told Mr. Bernhardt, he had lobbied on a broad water bill — one
with many provisions, not just smelt rollbacks. So even though he had
specifically lobbied only on the provision targeting the smelt and
salmon, he was within the ethics rules.
“They say to me, ‘It’s gigantic,’” Mr. Bernhardt said of the bill.
A senior ethics official at the Interior Department, who spoke on
condition of anonymity, said he did not believe Mr. Bernhardt had
violated the Trump ethics pledge, or any other ethics rules or laws,
because the lobbying was on the broader matter, the overall water bill.
However, the official said that other ethics experts could reasonably
arrive at a different conclusion.
Several government ethics specialists disagreed with the Interior
Department’s interpretation. “That argument is a real reach,” said
Virginia Canter, the chief ethics counsel for Citizens for
Responsibility and Ethics in Washington, a nonprofit, nonpartisan
watchdog group.
She said Mr. Bernhardt should have received the approval in writing. “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,” by the agency’s
Inspector General, she said.
Under federal ethics rules, Mr. Bernhardt could have requested a formal
written waiver from the White House, or short of that, a written memo
from the agency ethics official laying out guidance on how to proceed.
A spokeswoman for Mr. Bernhardt, Faith Vander Voort, said in an email
that since the Interior Department ethics officials had determined that
he had lobbied on the “broad” matter of the water infrastructure bill,
rather than a narrow or specific matter, “Mr. Bernhardt was not required
to receive written guidance or authorization from the Departmental
Ethics Office prior to participating in the decision.”
As a former lobbyist, Mr. Bernhardt said he takes care to stay within
the regulations, particularly in matters involving his former clients.
“My job is to follow the rules to the T, and if Congress wants to change
rules, Congress can,” he said.
----
Coral Davenport covers energy and environmental policy, with a focus on
climate change, from the Washington bureau. She joined The Times in 2013
and previously worked at Congressional Quarterly, Politico and National
Journal. @CoralMDavenport • Facebook
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