Van Hollen Questions Bernhardt’s Efforts to Relax Migratory Bird Legal Opinion and Possible Conflict of Interest

WASHINGTON, March 28 -- The office of Sen. Chris Van Hollen, D-Maryland, issued the following news release:

Today, U.S. Senator Chris Van Hollen (D-Md.) sent a letter to Acting Secretary of the Interior David Bernhardt about his involvement in a recent Department of the Interior (DOI) legal opinion to roll back a longstanding interpretation of the Migratory Bird Treaty Act that holds companies responsible for oil spills that kill migratory birds. Under DOI's new legal opinion, companies responsible for non-intentional oil spills would no longer have to pay penalties for the massive loss of bird life under the Migratory Bird Treaty Act (MBTA).

Senator Van Hollen questioned former Secretary Zinke about this change in May 2018, and DOI confirmed the impact of the new legal opinion in their recent response to the Senator's December 2018 inquiry. With his letter today, Senator Van Hollen presses for more information into Bernhardt's involvement in this decision, given his work representing clients such as the Independent Petroleum Association of America, who had urged DOI to move forward with the new legal opinion on the Migratory Bird Treaty Act.

Senator Van Hollen writes, "As the Senate considers your nomination for Secretary of the Interior, there have been significant questions raised about your decisions and priorities in your position as Deputy Secretary that have directly benefitted your former clients, while harming our public lands and wildlife."

He continues, "I am particularly concerned about your role in the Solicitor's Opinion (M-37050) on the Migratory Bird Treaty Act (MBTA). I have serious questions about whether these actions fall within the ethical guidelines that you have signed, and moreover, whether the American public can be confident you will truly have its interests in mind if you will soon oversee the Department of the Interior (Department) and its considerable responsibilities."

He underlined the consequences of this ruling stating that, "the Department has therefore confirmed that you will no longer be able to secure fines or penalties for violations of the MBTA from companies responsible for an oil spill that non-intentionally kills migratory birds similar to the British Petroleum (BP) Deepwater Horizon disaster of 2010, which killed an estimated 1,000,000 migratory birds."

Senator Van Hollen closed the letter, saying, "Your role in delivering specific requests from former clients gives the appearance of acting on their behalf, rather than the American public. I ask that you clarify in writing your role in the M-Opinion and the relationship with IPAA, and explain why the American people should have confidence that you are not merely putting the interests of your former corporate clients first, and how you intend to ensure industry operators implement best practices so that migratory birds do not suffer unnecessary harm."

A copy of the letter is below.

Acting Secretary Bernhardt,

As the Senate considers your nomination for Secretary of the Interior, there have been significant questions raised about your decisions and priorities in your position as Deputy Secretary that have directly benefitted your former clients, while harming our public lands and wildlife.

I am particularly concerned about your role in the Solicitor's Opinion (M-37050) on the Migratory Bird Treaty Act (MBTA). I have serious questions about whether these actions fall within the ethical guidelines that you have signed, and moreover, whether the American public can be confident you will truly have its interests in mind if you will soon oversee the Department of the Interior (Department) and its considerable responsibilities.

The Solicitor's Opinion, or M-Opinion, on the MBTA was released on December 22, 2017 without any public or scientific input or environmental analysis, abruptly removing longstanding protections for birds from avoidable industrial harm. These protections have been implemented in a bipartisan manner by every administration since the early 1970s. It is likely that millions of birds have been saved thanks to this law and the leadership of the Department. The MBTA has significantly reduced the number of birds killed from oil waste pits and other threats, and it has provided accountability and recovery funds after oil spills such as Deepwater Horizon. This policy change has been opposed by 17 former Interior officials from every Republican and Democratic administration since the early 1970s, as well as Flyway Councils representing nearly every state wildlife agency in the country.

I questioned then-Secretary Zinke about the MBTA M-Opinion at a hearing before the Senate Appropriations Subcommittee on Interior, Environment, and Related Agencies on May 10, 2018. At that hearing, Secretary Zinke told me that it was "not correct" that oil companies responsible for oil spills would no longer have to pay penalties for the massive loss of bird life under the MBTA. I sent Secretary Zinke a letter to clarify this matter on December 3, 2018.

On February 21, 2019, Margaret E. Everson, Principal Deputy Director of the U.S. Fish and Wildlife Service, responded to my letter and in her response admitted the following: "In Practice, the new M-Opinion means that if an oil or hazardous chemical release occurs and is not done with the intent of taking migratory birds, the MBTA does not apply."

So, the Department has therefore confirmed that you will no longer be able to secure fines or penalties for violations of the MBTA from companies responsible for an oil spill that non-intentionally kills migratory birds similar to the British Petroleum (BP) Deepwater Horizon disaster of 2010, which killed an estimated 1,000,000 migratory birds. As you are aware, in the aftermath of the BP Deepwater Horizon Oil Spill, BP pled guilty to one misdemeanor for violating the MBTA. As part of the settlement, BP agreed to pay $100 million to the North American Wetlands Conservation Fund (NAWCF) to support projects focused on wetlands in the United States, Canada, and Mexico. The MBTA penalties were separate from the 14 other criminal counts against BP.

I again reiterate my strong concern that going forward, the Department will no longer be able to collect penalties under the MBTA in the aftermath of an oil spill because of the changes made by the M-Opinion. It is cynical of the Department to assume that any major oil spill or chemical release would be considered "intentional". In effect, the Department is forgoing money from polluters that could go towards important programs like the NAWCF.

Which leads me to my second concern--what was the motivation behind the changes made by the M-Opinion? Despite the MBTA's strong record in saving birds through reasonable enforcement, one of your former clients - the Independent Petroleum Association of America (IPAA) - urged the Department of the Interior to gut the MBTA and remove protections for birds and any requirements to take actions to minimize impacts to birds from their activities. Recent reporting from Politico and Reveal has documented that within a few months of the beginning of the Trump administration, the IPAA circulated a memo with its priority regulatory requests, which included rolling back the MBTA. At this same meeting, IPAA leaders discussed the close relationship and access they had with you. On September 21, 2017, IPAA submitted a letter to DOI asking for "new orders ceasing enforcement and prosecution of [migratory bird] take that is incidental" under the MBTA. Three months later, DOI released the M-Opinion, which changed the liability rules for these migratory bird killings -- a change that was applauded that same day by IPAA.

In your recusal, you agreed to "not participate personally and substantially in any particular matter involving specific parties in which I know a former employer or client of mine is a party or represents a party for a period of one year after I last provided service to that employer or client, unless I am first authorized to participate, pursuant to 5 C.F.R. 2635.502(d)." According to reporting, it appears that you played a significant role in the M-Opinion. As documents received through FOIA by Reveal show, Acting Solicitor Daniel Jorjani wrote on October 2017, "Dep Sec's office has seen several iterations and has been plugged in since Day 1", and later he wrote, "Please make sure that the roll-out strategy has been explicitly reviewed and approved by the Dep Sec's office." In response to DOJ feedback, you wrote "Well, we have a bit of work to do...change is not easy." This email was sent the day after an IPAA "Regulator's Forum" in Washington, DC that included a senior DOI official. And on November 3, seven weeks before the M-Opinion was released, IPAA emailed this same official with the subject line "MBTA", asking if there's "any word on the solicitor's opinion yet."

The Department has a great responsibility in protecting our public lands, managing wildlife including migratory birds, and faithfully carrying out our environmental laws and international treaty obligations. Your role in delivering specific requests from former clients gives the appearance of acting on their behalf, rather than the American public. I ask that you clarify in writing your role in the M-Opinion and the relationship with IPAA, and explain why the American people should have confidence that you are not merely putting the interests of your former corporate clients first, and how you intend to ensure industry operators implement best practices so that migratory birds do not suffer unnecessary harm. I look forward to your timely response.

Sincerely,