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Top Interior official’s ‘modern vision of conservation’ poses threat to Endangered Species Act

Ex-industry lobbyist David Bernhardt describes law as "unnecessary regulatory burden."

Deputy Interior Secretary David Bernhardt (center) listens as President Trump speaks during a cabinet meeting at the White House on November 1, 2017. CREDIT: Jabin Botsford/The Washington Post via Getty Images
Deputy Interior Secretary David Bernhardt (center) listens as President Trump speaks during a cabinet meeting at the White House on November 1, 2017. CREDIT: Jabin Botsford/The Washington Post via Getty Images

The No. 2 official at the Department of the Interior wants to ease provisions of the Endangered Species Act that the Trump administration sees as obstacles to its goal of expanding resource extraction and making land management policies more industry friendly.

In an op-ed published Friday in the Washington Post, David Bernhardt, a former lobbyist for energy companies and large agribusiness, presented the Trump administration’s case for weakening the Endangered Species Act. He claimed the way the nation protects species has become an “unnecessary regulatory burden” on industry and U.S. taxpayers.

“We are proposing to clarify that the standards for listing and delisting are identical. With limited resources, we cannot and should not keep recovered species on the list forever,” he wrote.

Many of Bernhardt’s former clients stand to benefit from his efforts to help the Trump administration weaken the Endangered Species Act.

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In July, the Trump administration released a proposal that would strip the act of key provisions. The changes would streamline consultations with other agencies and potentially shrink critical habitats. Threatened species would no longer automatically receive the same protections as endangered species under the proposal announced jointly by the Interior and Commerce departments.

Globally, human activity is putting 99 percent of threatened species are at risk, primarily from habitat loss due to development, introduction of exotic species, and climate change. In the United States alone, experts estimate that there are 14,000 to 35,000 endangered species. The federal government’s figures are far more conservative; it puts the number of endangered and threatened species at about 1,300.

President Donald Trump has made cutting regulations one of his top priorities. His administration has now set its sights on the Endangered Species Act as one more law at which it can chip away.

Bernhardt was installed as deputy Interior secretary to serve as the day-to-day manager of the department, but also to carry out Trump’s anti-regulatory agenda. When Trump nominated Bernhardt in April 2017 to be Ryan Zinke’s top deputy at the Interior Department, it drew immediate criticism from Democrats and environmental groups who expressed concerns about potential conflicts of interest.

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Prior to joining the Trump transition team in late 2016, Bernhardt led the natural resources law division at the Washington law and lobbying firm Brownstein Hyatt Farber Schreck LLP. Many of his former clients conduct business in areas of the country where various types of species are under threat.

According to financial disclosures, the Independent Petroleum Association of America (IPAA) hired Bernhardt for “legal services” while he worked at the law firm. Bernhardt’s other clients included Noble Energy, NRG Energy, Sempra Energy, Statoil, and Cobalt International Energy.

Bernhardt also worked as a lobbyist for the Westlands Water District, an irrigation agency that has long battled the federal government on behalf of big agribusinesses in California’s Central Valley.

IPAA, one of Bernhardt’s former clients, has been vocal about its concerns with the Endangered Species Act, especially with how it would impact oil and gas drilling in the U.S. Southwest.

“Over the past few years, there have been numerous efforts in Texas, New Mexico, Colorado, Oklahoma, and elsewhere to list hundreds of species as endangered and place hundreds of thousands of acres of land off-limits to economic development,” IPAA says on its website. “And a new, stronger wave of threats is expected in the coming years, putting America’s independent producers at risk.”

In Bernhardt’s recent op-ed, he writes that it’s incumbent to collect data on the economic impacts — its impact on the bottom lines of extractive industry companies, for example — of listing a species as either threatened or endangered.

On Monday, the Los Angeles Times published an article that questioned why Bernhardt would be so interested in rolling back the Endangered Species Act.

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“One would think that as an official of the Interior Department, his duties would involve true stewardship of the nation’s fish, wildlife, and wilderness, not so much the search for ‘public-private partnerships and market-based solutions’ — what he calls in his [Washington Post] op-ed ‘a modern vision of conservation,'” reporter Michael Hiltzik wrote in the Los Angeles Times piece..

Conservationists and policymakers believe the Endangered Species Act is as important today as the law was when it was passed in 1973. In response to the Trump administration’s proposal to weaken it, Sen. Tom Carper (D-DE) said the law “continues to be one of our country’s most popular and successful environmental protection laws.”

The proposed changes to the Endangered Species Act “may harm imperiled species and are yet more examples of the Trump administration catering to industry instead of the interests of the American people,” Carper said.

Environmental groups also have highlighted Bernhardt’s many potential conflicts of interest and their potential impact on how he approaches Environmental Species Act reform. Earthjustice, a nonprofit environmental law firm, tweeted Tuesday that Bernhardt is a former lobbyist for the farm industry that “would profit most from environmental protection rollbacks,” including the administration’s proposal to weaken the Endangered Species Act.

The Endangered Species Act currently prohibits the “take” of species designated as endangered, while a section of the law allows the agency to establish special regulations for threatened species. In 1978, the U.S. Fish and Wildlife Service, a division of the Interior Department, used this authority to extend the prohibition of take to all threatened species. Under the Trump proposal, this extension of the rule would be eliminated for future threatened species.

The Trump administration’s proposal also would change how the Fish and Wildlife Service and the National Marine Fisheries Service, a division of the National Oceanic and Atmospheric Administration (NOAA), consider “foreseeable future” when determining whether a species should be listed as threatened. This change could severely limit protections for endangered species most affected by climate change.

Currently, the law defines a threatened species as one that “is likely to become an endangered species within the foreseeable future throughout a significant portion of its range.” The proposed regulations would provide a framework for determining “foreseeable future” on a case-by-case basis based on life history and threat projections.