The Bernhardt Doctrine: Dismissing Rules and Dodging Oversight
U.S. Secretary of the Interior David Bernhardt is hard to put a finger on. Attempts to understand what he’s doing or who he’s meeting with through Freedom of Information Act requests have yielded surprisingly few documents and sparse calendars. Bernhardt has granted relatively few—or brief, if at all—on-the-record interviews with reporters. He has also largely avoided testifying in front of Congress before May of this year.
Despite this opaqueness, a picture of Bernhardt’s approach to governance is starting to emerge—one of a former oil and gas lobbyist pushing a destructive anti-conservation agenda with a flagrant disregard for the coequal branches of U.S. government. The U.S. Department of the Interior’s (DOI) Bernhardt era—his time as deputy secretary and now secretary—is marked by actions that consistently ignore Congress and the rule of law. While the courts have begun to provide a check on Bernhardt’s approach, he continues to both circumvent public input and accountability and undermine Congress’ oversight role.
In many ways, Bernhardt’s approach to leadership resembles that of his boss, President Donald Trump, who regularly dismisses opposition from the legislative and judicial branches and, ultimately, diminishes the oversight role that the public expects the government to serve. This column examines how Bernhardt has used his executive authority at the expense of the American public as well as to undermine Congress and the law of the land.
Disdain for Congress
The U.S. Constitution’s Article I vested in Congress the power of not only writing the laws that govern the executive branch, but also providing it with the important tool of investigating the federal government. Under Bernhardt’s leadership, the DOI has taken myriad actions that are at odds with congressional-mandated law and has resisted the legislative branch’s attempts to rein it in.
- Bypassing Congress and putting parks in jeopardy: Earlier this year, Bernhardt made a controversial decision to keep national parks open during the government shutdown. To do so, he diverted entrance fees that were intended for repair and maintenance projects, putting even more strain on the already underfunded National Park Service (NPS). In response, Betty McCollum (DFL-MN) and other congressional members accused Bernhardt of violating the Federal Lands Recreation Enhancement Act that clearly prohibits these funds from being taken away from their intended purpose. Bernhardt has since said that it was squarely within his purview to make that move.
- Ignoring Congress to promote drilling near protected sites: Since 2002, every Interior appropriations act has included a provision that prohibits federal funds from being used for oil, gas, and coal development activities within the historic boundaries of Utah’s Grand Staircase-Escalante National Monument. Bernhardt’s department’s decision to actively prepare for leasing in this monument—which President Trump illegally revoked in 2017—violates this 17-year-old restriction. The Government Accountability Office is now investigating whether or not the action puts Bernhardt in violation of the Antideficiency Act, which prohibits agencies from spending funds in advance or in excess of a congressional appropriation. Under Bernhardt’s watch, the DOI also has repeatedly limited the public’s opportunity to comment on the management of public lands and mineral extraction, including by adopting a sweeping policy that slashed the time that the public has to comment on proposed oil and gas leases.
- Dismissing the U.S. Senate’s advise-and-consent role: More than two years into the Trump administration, many of the Senate-confirmed political positions at the DOI remain unfilled. Instead, a series of acting officials tapped by the Trump administration have held key positions such as the directors of the NPS and Bureau of Land Management. These extended acting role circumvent the Senate, whose role is to approve or disapprove key administration personnel. For his part, Bernhardt has issued an unprecedented number of secretarial orders that effectively skirt the Federal Vacancies Reform Act, a 20-year-old law that limits how many days individuals can serve in an acting capacity and carry out decisions reserved for Senate-confirmed posts. For example, no fewer than three complaints that have been filed this year alleged that the DOI has violated the law.
- Shrugging off federal ethics law requirements: In April, Bernhardt was confirmed by the smallest margin ever for an interior secretary. Within days, news outlets reported that he was also the first interior secretary to be under investigation by the department’s inspector general on his first day on the job. The ongoing investigation concerns whether or not Bernhardt violated his ethics recusals pledge in relation to his extensive work as a lobbyist prior to joining the DOI. As previous CAP research has found, Bernhardt’s clientelistic system for dispensing political favors puts him at risk of violating the congressional ethics guideposts. Bernhardt has publicly denied any wrongdoing.
- Avoiding transparency: Shortly after Bernhardt was confirmed as secretary, the National Archives and Records Administration confirmed that they were investigating whether or not Bernhardt had violated requirements under the Federal Records Act. At issue in the ongoing investigation are Bernhardt’s creation and deletion of multiple calendars as well as his practice of purposely leaving meetings off his schedule. Bernhardt has since admitted that his personal itinerary was regularly overwritten. Additionally, Bernhardt has attempted to use executive authority to dilute long-standing transparency laws that are essential to the public’s ability to make informed decisions. For example, in late 2018 and in the middle of a government shutdown, he released a proposal that would suppress public records requests and undermine the Freedom of Information Act. And in another ethically dubious move, he defended an internal policy that allows politically appointed officials to review and comment on public records requests that relate to them.
- Using fallacious legal interpretations to ignore climate change: In May, Bernhardt flippantly told members of the House Committee on Natural Resources that he hadn’t “lost any sleep” over the record-high amount of carbon dioxide in the Earth’s atmosphere, adding that he wasn’t obligated to address the pressing issue because Congress had not passed a law dictating so. Bernhardt’s statement reveals a selective interpretation of the law, given that Congress has passed numerous laws that provide his department the authority and flexibility to combat climate change, including the Federal Land Policy and Management Act and National Park Service Organic Act.
Sidestepping the judiciary
In a rush to undo protections for land, water, and wildlife, Bernhardt’s DOI has attempted to short circuit the regulatory process and ignore science in ways that have not held up to judicial scrutiny. Time and time again, the courts have reprimanded the DOI for ignoring the rule of law. With many decisions pending on the department’s final actions, the courts will continue to be an important check on Bernhardt’s executive overreach.
- Failing to justify actions under the law: Bernhardt has led efforts to weaken or repeal Obama-era rules that protect U.S. air, water, and public lands. In many cases, however, the DOI has attempted to do so without providing even the most basic legal reasoning or without following the Administrative Procedures Act, which governs internal procedures of administrative agencies, including how and why they must interact with the public. Federal courts have repeatedly struck down the department’s legally questionable rollbacks, including the reversal of a ban on offshore drilling in parts of the Atlantic and Arctic oceans; the approval of a road through a national wildlife refuge; and the repeal of a coal valuation rule that was meant to increase revenue for taxpayers.
- Declining to follow environmental review requirements: On at least eight separate occasions during the past two years, federal courts have reprimanded the DOI for failing to consider the effects of climate change in agency decisions. Despite repeated warnings, Bernhardt is leading an agency that willfully ignores the intent of the National Environmental Policy Act (NEPA) in its analyses of major projects, including a proposal for oil drilling in the Arctic National Wildlife Refuge.
- Scorning federal courts’ final decisions: President Trump has repeatedly attacked judges and the courts for rulings that he disagrees with—and Bernhardt appears to be following suit. For example, after a federal judge struck down the Trump administration’s rescission of the Obama-era coal moratorium rule on new leases, Bernhardt’s department issued a press release that backhandedly criticized the judge for requiring a NEPA analysis.
Bernhardt has spent his time at the DOI pushing forward policies that strip away public land protections, reverse progress on climate change, and undermine transparency laws. These policies have been implemented with a disregard for the federal government’s equal branches of government as well as the public’s right to know what is happening inside its government. The courts have begun to provide an important check on Bernhardt’s department, but Congress should continue its oversight role to expose Bernhardt’s executive overreach, disregard for the public, and disrespect for the law.
Marc Rehmann is the senior campaign manager for the Law of the Land Project at the Center for American Progress
The author would like to thank Nicole Gentile, Kate Kelly, Sung Chung, Ben Podnar, Anne Dechter, and Tricia Woodcome for their contributions to this column.
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Senior Campaign Manager, Law of the Land Project