As the revolving door swings in Washington, D.C., David L. Bernhardt is an understandable choice to be second in command in the Trump administration’s Interior Department, a post with a direct hand in California water.
Bernhardt is, according to those who know him, highly intelligent and a skilled lawyer. Given his pedigree in and out of government, Bernhardt certainly understands the complexities of California water policy and politics. But because of his clients, Bernhardt is hardly the ideal choice for this state.
The Senate Energy & Natural Resources Committee is scheduled to convene a confirmation hearing for Bernhardt on Thursday. Senators ought to come armed with pointed questions. And though California Sens. Dianne Feinstein and Kamala Harris don’t sit on the committee, they need to make their presence known by urging that the committee delve into Bernhardt’s conflicts and elicit promises to avoid assisting past clients.
Berhardt worked as a Republican congressional staffer, later as a lawyer-lobbyist in the Clinton years and then as a high-ranking Interior official during George W. Bush’s administration, rising to the position of solicitor.
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During the Obama administration, Bernhardt returned to his old firm, Brownstein Hyatt Farber Schreck, a law-lobbying operation whose motto is: “Where business, law and politics converge.” Brownstein billed its Washington clients $25 million last year.
Bernhardt’s clients included Westlands Water District, the agricultural powerhouse made up of some of the nation’s richest farming operations. During Bernhardt’s time as Westland’s lobbyist, Westlands paid Brownstein Hyatt $1.43 million, the nonpartisan Center for Responsive Politics reports.
During those years, the Los Angeles Times reported, Brownstein Hyatt sued Interior four times on Westlands’ behalf. Bernhardt helped write legislation on behalf of Westlands, Stuart Leavenworth of the McClatchy D.C. Bureau has reported.
Brownstein Hyatt also represents Cadiz Inc., which has long sought approval of a controversial plan to tap into an aquifer beneath the Mojave Desert east of Los Angeles, and sell the water to urban users. The Obama administration blocked the plan, but the Trump administration has taken steps toward approving it.
In past administrations, the deputy secretary at Interior has been directly involved in virtually every aspect of California water, from the Colorado River agreement in the south to the Klamath River in the north, and, especially, the operations of the Central Valley Project.
Westlands has a major interest in deliveries of water from the Sacramento-San Joaquin Delta, via the Central Valley Project, and would have a stake in Gov. Jerry Brown’s proposal to build two 30-mile-long tunnels to divert water from the Sacramento River channel south and west to cities and farms.
Westlands leaders haven’t committed to the tunnels project, but decision time is fast approaching. The Interior Department is sure to have a hand in the decisions involving the tunnels and in the amount of water they deliver.
At the start of his tenure, President Donald Trump signed an executive order requiring appointees such as Bernhardt to recuse themselves from matters involving former clients. But any administration can issue waivers permitting officials to get involved.
The administration also could argue that the exclusion would not apply if Bernhardt gets involved in matters that affect water policy broadly, whether or not his actions would benefit Westlands, Cadiz or any other Brownstein client. That’s where the Senate must come in.
By now, four months into the Trump administration, voters no doubt are seeing that Trump’s claim that he would “drain the swamp” was a cheap applause line, and that he didn’t mean that he’d actually change how business gets done.
And so David L. Bernhardt, a smart and accomplished lawyer and a consummate insider, walks through the revolving door, back to the federal government. It’s the nature of Washington. Before they confirm him, as they almost certainly will, we can only hope that senators insist that he not help past clients and future clients.