[Congressional Record Volume 165, Number 62 (Wednesday, April 10, 2019)]
[Senate]
[Pages S2368-S2373]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Nomination of David Bernhardt
Mr. WYDEN. Madam President, the Senate is just hours away from voting
on whether to confirm David Bernhardt to head the Interior Department.
He would replace Ryan Zinke, who was forced from office in the eye of
an ethical hurricane. I am here tonight to put the Senate on notice
that I believe, if David Bernhardt is confirmed as Interior Secretary,
another ethical storm will be on us in the very near future. The Zinke
ethics hurricane was bad enough. America should not be harmed again if
it is followed by a Bernhardt ethical typhoon.
I believe the Bernhardt nomination ought to be stopped in its tracks
right here, right now. At a minimum, the Senate ought to put on hold
this whole matter until we can gather more information so an informed
decision can be based on all the facts.
At this moment, with the debate hurtling possibly toward an end,
there are four pending requests by a dozen Senators, including myself,
for inspector general investigations of the issues involving Mr.
Bernhardt. In the other body, there are a host of requests for
investigations as well. There has been a lot of speculation about how
all of these issues have been aired.
This is old news, say some. The fact is, that is not right. This
doesn't go back months. My concerns aren't information that has been
sitting out in public view for years. The prospect of an investigation
is developing in real time right now. I am going to run through some of
the basic facts before getting into deeper details.
First, according to the Office of Government Ethics, Mr. Bernhardt
has 27 different former clients who are posing a potential of unlimited
numbers of conflicts of interests--oil clients, coal clients, water
clients, major ag and resources clients. All of them have business
before the Department that the Interior Secretary is supposed to be
running for the benefit of the public, not for special interests.
My sense is, with all of these conflicts, Mr. Bernhardt would have
basically two choices; one, he could comply with the ethics pledge and
pretty much recuse himself from everything. Lord knows what he would be
doing all day because he would have to recuse himself; or two, he would
basically do business and just violate the ethical principles.
Lately, he seems to have been on what seems like a victory parade on
Capitol Hill, touting what he says is a record of being a champion of
ethics, but if you take a look at that record and take a look at what
was said during his confirmation hearing, as my son William Peter
Wyden, age 11--pictures available on my iPhone after my presentation--
would say, that Bernhardt statement was one big whopper.
Mr. Bernhardt served as Deputy Secretary to Ryan Zinke. All through
this parade of environmental horrors that were visited upon us, Mr.
Bernhardt was the key man in that office. There is not one shred of
evidence that Mr. Bernhardt objected to Ryan Zinke's corruption. There
is no evidence of it. Just think about it. He is always described as
the guy who made the Interior Department run and that he was the key to
all of these pieces. Ryan Zinke is out there with flagrant conflicts of
interest and the like. Yet there is no evidence that Mr. Bernhardt--the
self-styled expert on ethics--ever objected to anything.
Second, not even 2 weeks ago, Mr. Bernhardt came before the Energy
and Natural Resources Committee for his nomination. He admitted that he
had a role in blocking a landmark scientific report on toxic
pesticides--the kind of report that career, nonpartisan scientists and
staff spend years developing in close consultation with Department
lawyers. Mr. Bernhardt's excuse for blocking the report was that it
needed to be ``read by the lawyers,'' and he gave the impression to the
Energy and Natural Resources Committee and the country--people were
following it on C-SPAN--he gave the impression, when he said it needed
to be read by the lawyers, as though that was not already the routine.
His claim doesn't pass the smell test. I believe he lied to the Energy
and Natural Resources Committee.
Third, let's talk about his lobbying. Mr. Bernhardt deregistered as a
lobbyist to join the Trump transition team before the President's
inauguration. There is evidence he kept right on lobbying, nonetheless,
in violation of the law. There is a whole lot of talk about mislabeled
invoices and simple errors that attempted to explain it all the way.
The fact is, there were multiple cases in which Mr. Bernhardt was
engaged in activities that made him the de facto lobbyist, carrying on
with the same job he had been doing all along.
So you have a pattern of unethical behavior right in front of our
eyes. He said he had to do this lawyering. There hadn't been any
lawyering. Then we go back and look at the rules, and they say that in
these situations, there is lawyering all the way through the process.
That is why I am very troubled about his trustworthiness.
After Ryan Zinke's departure, every Senator ought to be interested in
restoring integrity and honor to the Interior Department. Yet the Trump
administration has double downed on its commitment to graft by
nominating David Bernhardt for this job. As I mentioned, there are
pending requests for inspector general investigations. I have also
called for an investigation by the U.S. attorney. Neither of those has
had adequate time to respond, but the majority leader has rushed this
nomination to the floor.
To indicate how fast the nomination is moving, the President
obviously nominated Mr. Bernhardt to lead the Interior Department less
than a month ago. Less than 2 weeks ago, the Senate Energy and Natural
Resources Committee held the confirmation hearing on his nomination.
Exactly a week later, the committee voted to approve it. One week after
that, the Senate may choose to vote on his final confirmation. I just
think it is a grave mistake to be moving forward with so many serious
unanswered questions, and let me go through the history about why.
The Interior Department is still reeling from Ryan Zinke and what I
call this self-generated ethical hurricane. In addition to overseeing
the largest rollback of Federal land protections in American history,
Ryan Zinke triggered so many Federal inquiries and investigations
before he resigned in
[[Page S2369]]
shame that you can't even easily track them. By most public reporting,
he triggered at least 17 different Federal inquiries before he
officially left office at the start of the year: the inappropriate
censorship of scientific reports, the wasting of tens of thousands--if
not hundreds of thousands--of dollars on office doors and chartered
flights, and of cutting potentially illegal land deals with oil
industry executives. His rap sheet basically goes on and on. It is as
long as the Columbia River. In his brief tenure, Ryan Zinke
demonstrated that he was better at corrupt self-dealing than he was at
protecting our treasured public lands.
I mentioned David Bernhardt was Mr. Zinke's Deputy, and he was the
Solicitor for the Interior Department during the Bush administration.
He knows a lot about how the Department works.
I want to say this to my colleagues: If this is a guy who is hands on
and if he really understands the Department of the Interior, I think
you have to wonder why Mr. Bernhardt never seems to have objected to
any of Mr. Zinke's corrupt activities.
The Interior Department, unfortunately, isn't new to scandal, and I
am going to take a brief moment to look back at one particular scandal
that relates to these matters--Julie MacDonald, a notoriously corrupt
Interior official during the George W. Bush administration who was
forced to resign.
In December of 2006, after an anonymous complaint sparked an
investigation, the inspector general released a report showing that Ms.
MacDonald had given internal Department documents to industry lobbyists
and that she had run roughshod over career Department staff who tried
to stand in her way.
I had serious concerns about the report and what was happening at the
Department. So, literally, more than a decade ago, I placed a hold on a
nominee to the Interior Department, pending some accountability for
these flagrant abuses by Ms. MacDonald. The next day, which was months
after the original report became public, she finally resigned. Later
that year, I requested an expanded probe into Interior decisions
related to the Endangered Species Act that Ms. MacDonald had been
involved in.
There was evidence of her meddling having directly affected species
in the Pacific Northwest. The Interior's inspector general released a
report. According to the New York Times, it found ``Ms. MacDonald's
zeal to advance her agenda has caused considerable harm to the
integrity of the Endangered Species Act program and to the morale and
reputation of the Fish and Wildlife Service, as well as potential harm
to individual species.''
I bring this up because here is where David Bernhardt figures into
the story.
A few weeks ago, I was surprised that Mr. Bernhardt requested to meet
with me in my office. I said I would be glad to do it. When nominees
come by, I usually just start with the questions: Why should I vote for
you? Why should I be supportive? It is kind of an easy way for the
nominee to get into it. That is why I do it.
What Mr. Bernhardt said was that he was a big ethics champion.
He said: Hey, do you remember Julie MacDonald? I am captain ethics. I
advised Julie MacDonald to clean up her act.
I didn't ask Mr. Bernhardt about Julie MacDonald. He brought it up.
I have met with a lot of nominees, and I have heard a lot of reasons
as to why they deserve my vote, but this meeting was certainly a head-
scratcher. A nominee who had been present for Ryan Zinke's reign of
corruption and conflict and who had seemed not to do anything about it
had shown up, at his request, to tout his own ethics.
A few hours after the meeting in my office with Mr. Bernhardt, I
decided I would look at his record for myself. Interior Department
documents that had been obtained through a Freedom of Information Act
request showed he had recently blocked the release of a Fish and
Wildlife report about the effects of dangerous, toxic pesticides.
Career staff at the Fish and Wildlife Service, an Interior Department
Agency, were on the brink of completing a comprehensive report on the
impact of three pesticides on, potentially, hundreds of endangered
species. This was a report by career staff. It was not put together by
people who were political appointees. It defined pesticides that were
so dangerous and so toxic that they jeopardized the continued existence
of more than 1,000 species. This report, had it been made public, would
have had profound consequences for pesticide manufacturers in the
businesses that had used them.
The dedicated team of career staff at the Fish and Wildlife Service
that had worked so long on this in order to make sure they really dug
into the science--and they took years to be fastidious about it--wanted
to make it public. The team was working rapidly to submit its findings
to the Environmental Protection Agency for its review.
The documents show that before this landmark report could make it
into public view, Mr. Bernhardt came along and pushed himself into the
middle of the process. The documents show his emails on the pesticide
report. He demanded briefings from these career scientists. They show
meetings with White House officials and others about the specific
section of the law that governs the role of Fish and Wildlife in these
types of assessments. There is even included an email in which Mr.
Bernhardt edited the letter that Interior officials used to block the
release of the pesticide report. There were digital fingerprints
everywhere.
I have to say that I looked at this, and I said: This sure sounds
like Julie MacDonald all over again. The guy who said: ``Hey, I was the
one who pushed Julie MacDonald to clean up her act,'' looked like he
was meddling with the science just the way Julie MacDonald was. Ms.
MacDonald was found by the inspector general to have meddled with the
scientific conclusions, and now there is David Bernhardt, who has been
alleged to have manipulated the process and blocked the release of an
Endangered Species Act report.
So Mr. Bernhardt came to say that his ethics were unimpeachable and
that he was above reproach. Yet I will tell you, for my colleagues who
are thinking about this, if you read the documents I read from the
Freedom of Information Act, they make him sound like another Julie
MacDonald. I worked through all of these documents, and they left me
with the impression that Mr. Bernhardt had lied to me about his ethics
during our one-on-one meeting as well. It left me wondering why he
would go out of his way to talk up his ethics when he must have known
the truth was going to come out eventually.
During his confirmation hearing, he claimed he would strive to bring
a culture of ethical compliance. He said he hoped to overhaul the
ethics of the Ryan Zinke period and the Julie MacDonald experience.
Senators called his qualifications unparalleled and claimed that the
allegations of ethical misconduct against him were false. I respect
those colleagues who have their opinions. I have my own, and my
opinions are going to be based on the documents.
The document I entered into the record at his confirmation hearing
showed that the pesticide industry repeatedly asked political
appointees at the Interior Department and at the Environmental
Protection Agency to intervene in the scientific analysis. It showed
that Mr. Bernhardt eventually did so.
According to documents that had been made public by the Freedom of
Information Act, a pesticide industry attorney wrote to then-Secretary
Zinke and then-Administrator Scott Pruitt on April 13 of 2017. The
pesticide industry was asking for changes to the Endangered Species
Act. The industry followed it up very shortly with a request to meet
with the Environmental Protection Agency's staff. At that time, a
pesticide industry executive called an attorney of the Interior
Department for a meeting as well. Another official from a pesticide
trade association reached out to the same Interior Department attorney
to discuss the Endangered Species Act.
Other supporting documentation consisted of an email that was dated
October 5, 2017, from Mr. Bernhardt to Gary Frazer, the Fish and
Wildlife Service's Assistant Director, who handles these endangered
species. He ``was the top official overseeing the assessment of the
impact,'' according to the press, while looking at the implications of
these pesticides. In this email, Mr. Bernhardt asked Mr. Frazer for a
briefing the following week. Additional documents
[[Page S2370]]
show that Mr. Bernhardt held a series of meetings with Mr. Frazer over
the next 3 weeks.
On October 30, according to the calendar released by the Freedom of
Information Act, Mr. Bernhardt met with White House officials to
discuss Endangered Species Act provisions. It is called section 7. That
is the section that pertains to the role that the Fish and Wildlife
plays in ensuring other Agencies aren't jeopardizing species.
An email from November of 2017 shows Mr. Bernhardt edited the draft
of a letter from career Fish and Wildlife Service staff to the EPA. It
announced the Interior Department wouldn't be delivering the Fish and
Wildlife's assessment to the Agency as planned. This, colleagues, is
where Mr. Bernhardt put the brakes on this important Fish and Wildlife
report about the pesticides.
According to a New York Times report, the pesticide analysis was
blocked in conjunction with a ``radical shift'' in how the Fish and
Wildlife analyzes the effects of these pesticides. The change greatly
increased the burden of proof the Agency is required to meet to
demonstrate pesticide effects on species. According to that article in
the Times, it would likely result in fewer new restrictions on
pesticide use. CropLife and RISE--two trade associations that represent
the pesticide companies--were very much in favor of this. They were
praising it.
Based on the documents, at the hearing, I asked Mr. Bernhardt why he
would come to my office and sell me on ethics when the reports and the
documents I just read showed otherwise. He had no response.
At the hearing, I asked Mr. Bernhardt specifically why he would come
to the office and make these claims. He had no response at the hearing
but took a long sip of water as though he had meant to go on awhile.
Mr. Bernhardt made the claim that career Fish and Wildlife staff
``clearly'' didn't complete any legal review on the pesticide report,
which is why he stepped in.
During the hearing and while under oath, I believe Mr. Bernhardt
confirmed allegations that he interfered with the release of an
Endangered Species Act report. He didn't, however, acknowledge that his
involvement was inappropriate political meddling.
Following the hearing and with serious questions remaining about
whether he had lied under oath to the committee, I wrote the Interior
Department's inspector general for her help in getting to the bottom of
the matter. Here are the facts I included:
On March 28, 2019, Mr. Bernhardt appeared before the U.S. Senate
Committee on Energy and Natural Resources for his confirmation hearing
to become Secretary of the Department of the Interior. I questioned him
about these documents and his role in blocking the Fish and Wildlife's
analyses. He confirmed to me that he had reviewed the analyses. He
claimed he believed the analyses had not been subject to legal review
and made the determination to delay the report.
Second, Mr. Bernhardt's response:
You're dealing with some of the most difficult
consultations on the planet, and when I read the document, my
reaction to it was this is really an interesting draft. But
it clearly didn't have any legal review, and in our world you
can't ignore the law and come up with a scheme.
He continued:
And so what we decided is that the approach needed to be
readdressed.
Mr. Bernhardt's answer is totally off base with respect to the way
legal analyses work.
Under standard procedure, there would be legal analysis through the
development of this kind of fish and wildlife report. It would involve
lawyers at Fish and Wildlife, Interior Department, or both.
So I am especially troubled by what appears to be a political
appointee meddling in the scientific process with respect to a report
that revealed the extraordinary danger of toxic pesticides.
I am the senior member on the Energy and Natural Resources Committee,
a former chairman of the committee. I cannot recall ever having this
kind of exchange with a nominee.
That is why I had to request that the Office of Inspector General
investigate the following: What role did Mr. Bernhardt and other
political appointees at the Interior Department play in delaying or
obstructing the Fish and Wildlife Service pesticide report? What role
did he play in changing Fish and Wildlife policy with regard to this
key section in the Endangered Species Act? What role did other
political appointees--Agriculture Senior Advisor, former CropLife
lobbyist, Ms. Adcock--play in the Interior Department and Fish and
Wildlife Service's decision making? Whether, as Mr. Bernhardt alleged
to me under oath on March 28, 2019, the Fish and Wildlife draft
analysis ``clearly didn't have any legal review'' and whether, as Mr.
Bernhardt alleged to me, career lawyers at the Interior Department
agreed with his analysis--these are all questions that haven't been
answered.
I would just say to the Senate, if you need more evidence that there
are too many questions to allow this nomination to move forward, the
story just gets more complicated.
After Mr. Bernhardt demonstrated that he simply was going to dance
around the truth, the Senate has to question his basic understanding of
the law.
So on Monday, I asked the U.S. Attorney for the District of Columbia
to thoroughly investigate potential civil and criminal violations of
the Lobbying Disclosure Act of 1995 by Mr. Bernhardt, as well as his
former lobbying firm.
By the way, again, a newspaper reports--this time the Washington
Post--that Mr. Bernhardt's ex-firm has quadrupled its business, earning
nearly $5 million to lobby the Interior Department since he has taken
his most recent spin through the Interior Department revolving door.
So here is what I said to the U.S. attorney: Lobbying Disclosure Act
filings show Mr. Bernhardt registered to lobby for his law firm on
behalf of the Westlands Water District on March 30, 2011. Westlands is
the largest agricultural water district in the United States, in
central California. Public reporting indicates Mr. Bernhardt ran his
former lobby firm's natural resources department.
That lobby firm filed its 2016 fourth quarter report on November 18,
2016--1 week after the 2016 Presidential election--terminating Mr.
Bernhardt's lobbying status as of that day.
Public reporting at the time indicates Mr. Bernhardt ``delisted
himself as a lobbyist in November after Trump won the election to avoid
running afoul of the new President's ban on lobbyists joining his
administration.''
Public reporting and documents obtained via public records show that
Mr. Bernhardt maintained his relationship with Westlands after his
lobbyist deregistration on November 18, 2016. Furthermore, he may have
repeatedly engaged in activity that would require him to continue
registering as a Federal lobbyist. So he claimed he was no longer a
lobbyist, but it sure looks as though he went right on lobbying.
The Lobbying Disclosure Act is pretty clear. I will read from public
guidance provided by the U.S. House of Representatives. A lobbyist can
terminate their registration ``only when the individual's lobbying
activities on behalf of that client did not constitute at the end of
the quarter . . . 20 percent of the time that such employee is engaged
in total activities for that client; or that individual doesn't
reasonably expect to make further lobbying contacts.''
What does the law mean by ``lobbying contacts?'' That is pretty clear
too. The same guidance says it is ``any oral, written, or electronic
communication to a covered Federal official that is made on behalf of a
client'' with regard to Federal legislation, rulemaking, executive
orders and the like. ``Covered Federal officials'' include all Members
of Congress and their staff.
The evidence I included in my request to the U.S. Attorney for the
District of Columbia included several emails showing Mr. Bernhardt may
have engaged in repeated, regulated lobbying contacts with covered
Federal legislative branch officials.
The first time, according to the information that is already public,
appears to be on November 22, 2016, just a few days after he
deregistered as a lobbyist. Mr. Bernhardt agreed to join a conference
call with Westlands and the offices of Representative Devin Nunes and
former Representative Valadao to discuss upcoming legislation.
The second and third times are covered in a complaint filed with the
U.S.
[[Page S2371]]
attorney's office in 2017. That complaint included copies of emails
documenting Mr. Bernhardt's role in 2016 and 2017 as an intermediary
for congressional staff and Westlands. It also appeared to include a
trip to California for Mr. Bernhardt, paid for by Westlands.
So here is what it appears happened: Mr. Bernhardt provided his
client, Westlands, with information about legislative efforts in 2016
and 2017. His old lobbying firm also disclosed lobbying on behalf of
Westlands on those same legislative efforts over the same timeframe.
Another new report shows that Mr. Bernhardt was also in contact in
December 2016 with a Senate employee covered by lobbying regulations.
On March 8, 2017, his old lobby firm sent Westlands an invoice for
more than $27,000 for ``Federal lobbying.'' It included an itemized
list of expenses related to Mr. Bernhardt's January 2017 travel to
California for a ``Westlands'' trip.
On April 20, 2017, the lobbying firm filed its 2017 first quarter
disclosure that is required by the Lobbying Disclosure Act. It showed
Westlands paid the firm $70,000 for lobbying services related to H.R.
1769, a bill involving the San Luis unit drainage district, among other
measures. It was a longstanding priority for Westlands--a moneymaking
opportunity. It was sponsored by then-Representative Valadao, one of
the Congressmen Mr. Bernhardt appears to have been in contact with on
November 22, 2016, and January 2, 2017.
The lobby firm's 2017 first quarter disclosure was filed shortly
after the firm sent Westlands the March invoice for Mr. Bernhardt's
February 2017 ``Federal lobbying'' activity.
According to a media report in July of 2017, a Westlands
representative claimed Bernhardt ceased all lobbying activity ``the
moment he deregistered as a lobbyist.'' In May of 2017, during his
confirmation process to be Deputy Secretary, Mr. Bernhardt also claimed
in writing to the committee he had ``not engaged in regulated lobbying
on behalf of Westlands Water District after November 18, 2016.''
These Bernhardt claims simply do not line up with the documents.
Perhaps that is why he refused when one of my colleagues requested he
provide complete records relating to any communications he had with
covered legislative branch officials after the date of his
deregistration.
Let me repeat that.
When one of the Senators on the Energy and Natural Resources
Committee asked Mr. Bernhardt to provide documents that would help the
committee get to the bottom of this issue, he just stonewalled. He just
refused.
The Lobbying Disclosure Act isn't that burdensome. The firm and Mr.
Bernhardt could have chosen to disclose his lobbying activity on behalf
of Westlands. They chose not to do so, so everybody is going to ask
why.
The U.S. attorney's office is responsible for enforcement of the
Lobbying Disclosure Act of 1995. So this week I wrote to the U.S.
attorney, requesting a thorough investigation.
I have spent this time highlighting some of the major reasons that
make me feel strongly that Mr. Bernhardt's nomination should not move
forward at this time. Chief among them are that I have two pending
requests for investigations at this time, neither of which have been
responded to because it has been a short time and the majority leader
is interested in steamrolling this flawed nominee by the American
people.
I am just going to conclude my remarks by summarizing a couple of Mr.
Bernhardt's greatest hits with respect to why he is thoroughly
unqualified to be Secretary of the Department of Interior.
The first is the matter of the conflicts. He is a former oil
lobbyist. In fact, at one point, I was going to say that he was the oil
industry's guy, but the oil industry lobbyists beat me to it. A secret
tape came out, and they were quoted as saying: We are glad he is our
guy. Dozens of his ex-clients have business before Interior. According
to his ethics pledge, he should be conflicted out of working on those
issues. If he remains involved, he will be flagrantly violating his
ethics pledge. So if he follows the rules and stays out of all of these
issues his clients have before the Department, I will tell you, for the
life of me, I can't figure out what he is going to do all day because
he is going to be conflicted out of all of these matters that are going
to be before the Department.
Just last week, Mr. Bernhardt's previously unrevealed calendars were
partially made public. To nobody's surprise, many of those secret
meetings have been with industry. This is yet another item that
Congress, including the other body, has asked for more information
about.
So the damage has been done. The conflicts are clear. He has already
taken actions that benefit his former clients and former employers.
He has taken steps specifically to weaken the Endangered Species
Act--worked to weaken wildlife protections for a California fish
species, according to another investigation. This weakening of
protections for the California fish species is a policy change that one
of Mr. Bernhardt's former clients--Westlands Water District--had been
pushing for for years.
Mr. Bernhardt's Interior announced that the Agency is basically going
to stop holding oil companies accountable for oilspills by ending
enforcement of the Migratory Bird Treaty Act. This move has been long
supported by yet another energy lobby, another one of Mr. Bernhardt's
former clients.
Mr. Bernhardt's Interior Department increased drilling and mining
access on millions of acres of sage-grouse habitat across five Western
States. That drilling will be conducted by companies, again, linked to
Mr. Bernhardt. It could make the sage-grouse an endangered species, and
it could endanger the livelihoods of ranching families on the rural
frontier who are just hoping to preserve their traditional way of life.
Mr. Bernhardt continues delivering for the oil and gas industry. A
CNN report found the Agency has advanced at least 15 policies supported
by his former clients during his time at Interior Department--
everything from the elimination of BLM's methane reduction rules and
gutting safety rules for natural gas drilling on public lands, to
risking the lives of workers by reducing safety standards for offshore
drilling. I don't think it is any big surprise why those oil executives
were cheering about Mr. Bernhardt's nomination and calling him,
literally, their guy.
During the longest government shutdown on record, when national parks
were unstaffed and overflowing with human waste, Mr. Bernhardt even
recalled Interior employees to specifically approve hundreds of
drilling permits. Certainly, the oil and gas giants are getting their
money's worth.
To cap off my list, Mr. Bernhardt's Interior Department even proposed
opening up the entire U.S. coastline for offshore oil drilling.
I am heading home. I am sure my colleague from North Dakota and other
Senators are also. I am having town meetings and listening to people.
There isn't going to be anybody who comes to my town meetings starting
in the next couple of days who wants to see the Oregon coastline up for
offshore drilling or who wants to see the oil derricks at Haystack
Rock, and they don't want to be standing on our beaches holding oil-
soaked sponges.
The entire time Mr. Bernhardt has been at the Interior Department,
his former lobbying firm has just been raking in the cash. So the
question really becomes: Has he already broken the law? My bottom line
is that the Senate ought to take the time to actually look into that
issue. It isn't some trivial matter after the self-generated Zinke
ethical hurricane.
Shouldn't we say, after that ethics horror show, that it is the job
of every Member in the Senate--every Democrat and every Republican--to
work for policies that bring honor and credibility back to the Interior
Department? I just don't think that is going to be the case if this
body confirms David Bernhardt.
We will be voting, at least tonight, on the procedure, and depending
on how that goes, we may be voting on final passage.
I will just tell you that I don't want to be back on this floor in a
matter of months talking about yet another Interior leader, like Ryan
Zinke, forced from office as the result of a grotesque scandal. The
Senate doesn't have to leave the door of the Interior Department wide
open for more conflicted individuals to waltz into positions of
[[Page S2372]]
power where they can work against the interests of the American people.
I believe that is exactly what America will get from David Bernhardt.
I urge my colleagues to join me in opposing this nomination.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Cramer). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. UDALL. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. UDALL. Mr. President, I rise today to oppose this rush to confirm
David Bernhardt to serve as the 53rd Secretary of the Interior.
The Secretary of the Interior is the chief steward of nearly 500
million acres of public lands and 1.7 billion acres of the Outer
Continental Shelf. The Interior Secretary is charged with managing the
public's natural resources and protecting our Nation's most iconic
spaces for now and for generations to come, and the Secretary has the
duty of making sure that our trust and treaty responsibilities to
American Indians and Alaska Natives are met. It is essential to have
the right individual serving in this position--someone who has a record
of honoring these critical responsibilities and someone who will
approach the solemn duties with only the interests of the American
people at the top of his or her agenda.
After considering the whole of Mr. Bernhardt's record, especially the
open questions about his actions that have benefited his former
clients, I cannot vote to confirm this nominee. His policies are too
slanted toward private interests, and as a former lobbyist for many of
these interests, his conflicts are too many. Any discussion of this
nomination must begin there--by addressing the serious conflicts of
interest that Mr. Bernhardt brings to this role and by addressing the
ethical cloud that is plainly hanging over this nomination.
I am rising today to call on the Republican leadership to put a halt
to this nomination until that ethical cloud can be cleared, and if that
cloud cannot be cleared, then, Mr. Bernhardt should be withdrawn.
The concerns that have been raised are serious. Let's talk about a
few of them.
Much has been made of Mr. Bernhardt's ethics pledge and whether he
has complied with the letter of the law, but we all know that he
certainly has not complied with the spirit of the law. The Interior
Department has begun or completed at least 19 policy actions requested
or supported by at least 16 of Mr. Bernhardt's former clients since he
came to Interior, according to just 1 analysis.
Mr. Bernhardt's ethics pledge didn't stop him from trying to divert
water to his former client, Westlands Water District in California's
Central Valley, one of the largest agricultural water users in the
county. On their behalf, Mr. Bernhardt sought to weaken protections for
endangered fish species so that his client could pump more water. While
an Interior official ``verbally'' ruled that he could participate in
the matter, outside ethics experts disagreed. Mr. Bernhardt is clearly
making a decision that directly benefits one of his former clients.
Last month, I wrote to the DOI inspector general requesting an
investigation into this matter. The Senate should know the outcome of
such reviews before considering a Cabinet nominee. Otherwise, we are
flying blind when it comes to a nominee's fitness for office.
Just last week, it came to light that Mr. Bernhardt continued to work
with Westlands after he filed notice that he was no longer lobbying on
its behalf. He filed his notice on November 2016, but invoices from Mr.
Bernhardt's firm show that he worked with his client all the way up to
his nomination for Deputy Secretary.
A spokeswoman claims that the work was not technically ``lobbying,''
but the fact is that Mr. Bernhardt's actions are benefiting his former
clients. Westlands is getting the relief from the Endangered Species
Act that they have sought for years.
Once again, we need to know the full truth before we can vote on a
nominee of such consequence.
Americans deserve to have confidence in the impartiality of public
officials, but how can they when the Trump administration has become a
revolving door of lobbyists and industry advocates?
As an attorney and lobbyist, Mr. Bernhardt built a profitable career
trying to open public lands for development for his clients, and he
spent years attacking the foundation of the Endangered Species Act. The
problem is that since assuming his role as Deputy Secretary, he has
continued to advocate for policies that benefit these same special
interests.
He helped to open millions of acres of public lands to oil and gas
drilling, while looking to limit public input, and helped to gut
protections that would mitigate the environmental harm of such
development.
He has tried to manipulate and bury the science of toxic pesticides
that threaten endangered species. He has largely ignored the science of
climate change. None of this is a personal attack on the Deputy
Secretary, but we simply should not install private industry's
representatives to run the Department of the Interior, because when we
do, the American people pay the price.
Just look at the policy outcomes. Climate change, for instance, is an
existential issue--the most pressing issue facing our planet. The
Department of the Interior oversees 20 percent of the lands in our
Nation. These lands and their ecosystems and wildlife are threatened by
a changing climate: drought and wildfires in the Southwest, wildfires
and flooding in California, and hurricanes in the Southeast.
Mr. Bernhardt has been clear that climate science will take a
backseat to the President's politics. Under Mr. Bernhardt's guidance,
the Department is blatantly ignoring the science of climate change. The
Department took down its climate change web page, rescinded orders and
policies aimed at addressing the impacts of climate change, and gutted
the methane emission control rule at the behest of the worst performers
in the oil and gas industry.
Mr. Bernhardt now has the audacity to claim that there are no laws on
the books that require Interior to act on climate change, all because
his administration has attempted to dismantle every rule or regulation
that requires the Department to take action.
Very concerning is Mr. Bernhardt's role as the Trump administration's
architect of opening public lands for unfettered energy development. In
the last 2 years, Interior has auctioned off more than 16.8 million
acres of public land for oil and gas drilling. In the first quarter of
2019, nearly 2.3 million more acres were put on the auction block. That
includes potential lease sales within striking distance of the Chaco
Culture National Historical Park, a UNESCO world heritage site sacred
to the Tribes. That is why I just introduced legislation to permanently
establish a 10-mile buffer surrounding Chaco so that we can enjoy this
culturally significant area for generations to come without the
constant threat of development.
The Department has tried to open up nearly all coastal waters for
offshore drilling and is speeding toward selling leases to drill in the
coastal plain of the Arctic National Wildlife Refuge--home to Native
American Tribes and an area that supports a diversity of wildlife in a
wild and untamed setting unlike any other on this planet. There are
nearly 250 species, from caribou and grizzly bears to wolves and
migratory birds. Yet this administration, under Mr. Bernhardt, is
racing toward an outcome that could decimate this unique, grand, and
biologically rich place.
The Endangered Species Act stands as the Nation's commitment to
protect wildlife from extinction. Protecting biodiversity is more
important now than ever, as we see animal and plant species dying off
in record numbers due to the loss of habitat and climate change.
Mr. Bernhardt has had the ESA in his sights for a long time. Under
his leadership, Interior has now proposed allowing economic
considerations to override wildlife protections. Extinction is becoming
just another cost of doing business.
As I mentioned, on behalf of his former client Westlands, Mr.
Bernhardt
[[Page S2373]]
sought to weaken protections for endangered fish species, the delta
smelt, and the Chinook salmon so that Westlands could pump more water.
Mr. Bernhardt has looked to implement the very same policies he lobbied
for, from within the walls of the Department. As Deputy Secretary, Mr.
Bernhardt also dismantled a landmark agreement among bipartisan western
Governors to protect the greater sage-grouse, opening up millions of
acres of its habitat to oil and gas drilling without protections.
The Endangered Species Act should be classified as ``endangered''
under Mr. Bernhardt's client-friendly Interior Department.
Let's talk about another extinction risk: chlorpyrifos. Chlorpyrifos
is not yet a household name like DDT, but it will be. It is a dangerous
neurotoxin used in agriculture throughout the United States. It is
linked to brain damage in children and can cause serious harm to human
health and wildlife.
In 2016, scientists from the EPA recommended a ban on all uses of
this toxic pesticide. One of Scott Pruitt's first actions as EPA
Administrator was to rescind that proposed ban. One of Mr. Bernhardt's
early actions as Deputy Secretary was to bury a scientific study
concluding that chlorpyrifos and another pesticide could ``jeopardize
the continued existence'' of more than 1,200 endangered birds, fish,
and other animals and plants. Let me repeat. More than 1,200 birds,
fish, and other species are at risk of extinction from two toxic
pesticides. Mr. Bernhardt reportedly ordered the staff to go back to
the drawing board to block the release of this report.
I have been working to get chlorpyrifos off the market with
legislation, and the Federal courts have ordered EPA to move forward
with the ban. There is no good reason chlorpyrifos is still in use
except that it is manufactured by a powerful DowDuPont company. Mr.
Bernhardt's withdrawal of the scientific study serves Big Chemical's
interests, not the public's.
One of the most egregious anti-conservation actions of this
administration is the unprecedented attacks on the Antiquities Act,
which has stood since President Theodore Roosevelt. The President
reduced Bears Ears National Monument by 85 percent and Grand Staircase-
Escalante by over 45 percent--the largest rollback of protections for
our collective Federal lands in history and an unlawful Presidential
action, in my view.
Each of these monuments is home to ruggedly beautiful lands that are
at risk. The Bears Ears designation was the result of many years of
hard work and collaboration by five Tribes who trace their ancestry to
this remarkable area. Now the Department is pushing to open up the land
outside their boundaries for coal and mineral mining corporations.
Last month, I led 16 Democratic Senators in a letter to Mr. Bernhardt
seeking his commitment to leave existing boundaries of other national
monuments intact. So far, we have received no assurance from Mr.
Bernhardt that any other monuments won't meet the same fate as Bears
Ears and Grand Staircase.
The pattern is clear: From the Arctic Refuge to California's Central
Valley, from the Atlantic coast to Bears Ears, Mr. Bernhardt's Interior
Department places profits over people.
The American public deserves an Interior Secretary they can trust to
look out for their interests--protecting public land, species, the air,
and the water--but Mr. Bernhardt has not demonstrated that he has the
necessary independence from his former clients. He has made them very
happy. He has shut out scientists, Native Americans, conservationists,
and the American people. He is tangled with conflicts.
The Senate should stop the rush to confirm Deputy Secretary Bernhardt
while these fundamental ethics and conflicts of interest questions are
under review. If we move forward, I will vote no on this nomination.
Before I conclude, I would like to offer one final point. I made my
concerns with Mr. Bernhardt clear, but if Mr. Bernhardt is confirmed,
one of his most important duties will be honoring our trust
responsibility to Native Americans. On this count, I hope he will do
better than what the Trump Interior Department has shown us so far.
As the vice chair of the Senate Committee on Indian Affairs, I want
to ensure that the Department respects Tribes' sovereignty and self-
determination and engages in meaningful consultation with Tribes. The
Trump administration's record with Tribes and Native communities is, to
put it lightly, lacking. The Tribes in New Mexico do not believe they
are being properly consulted as leasing pushes ahead close to Chaco
Canyon.
For 3 years running, the administration has proposed budgets that
would significantly cut BIA and BIE funding. Those are education
budgets and budgets that help Native Americans on their reservations.
Congress has historically worked across party lines on Native issues.
Congress rejected the administration's proposed cuts for fiscal years
2018 and 2019, and I fully expect it to do so again for 2020.
If confirmed, I would like to see Mr. Bernhardt follow suit and
commit to do better on Tribal issues, commit to meet with Tribal
leaders to understand their priorities and demonstrate in action that
he respects Tribal sovereignty and that he commits the Agency to
consult with Tribes whenever their interests are affected.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. BROWN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.