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Environment & Energy Report

Land Bureau Mission May Turn on Election, More Than Confirmation

July 2, 2020, 10:01 AM

Whether the Senate confirms William Perry Pendley as Bureau of Land Management director may have little short-term effect on the agency’s agenda, but would send a message to the public about its priorities, officials and legal practitioners say.

And if President Donald Trump wins re-election, a Pendley-run Bureau of Land Management could cement a pro-development focus for an agency founded to protect public land, they told Bloomberg Law.

“This nomination is about reinforcing Trump’s status with the oil and gas and mining industries during an election year,” said Bob Abbey, who served as the bureau’s director during the Obama administration’s first term.

Interior Secretary David Bernhardt hired Pendley as the BLM’s deputy director of policy and programs a year ago and soon gave him the authority of the BLM director, a position left unfilled throughout the Trump administration. The White House on Tuesday formally nominated Pendley to the job.

But Bernhardt’s office in 2018 asserted the power to review and approve all land bureau environmental decisions.

“Bernhardt is making most of the decisions related to public land management anyway, so I do not see anything changing whether or not Pendley is confirmed as BLM director,” said Abbey.

The Trump Energy Agenda

But Pendley is a divisive figure for some in the West, where he spent decades as an attorney for the Colorado-based Mountain States Legal Foundation as an anti-public lands advocate representing the oil and livestock industries.

As Bureau of Land Management acting director, Pendley oversees an agency that is central to the administration’s fossil fuels-focused energy agenda. The bureau is in charge of about 246 million acres of federal land, mostly in the West, and all the federally owned onshore oil, natural gas, and coal nationwide.

Pendley is a “man of great integrity,” who believes in public lands management as Congress intended, and his confirmation won’t affect that long-standing agency focus, said Bob Comer, a former Interior associate solicitor in the George W. Bush administration who is now co-head of U.S. mining for Denver-based Norton Rose Fulbright US LLP.

“Perry has repeatedly expressed that he has no interest in selling off public lands,” Comer said. Senate confirmation would “recognize him with the honor and the position he’s been acting to serve in,” but there would be no change in the direction of the agency.

Confirmation Uncertain

Pendley’s confirmation prospects are uncertain in part because the November presidential election is only a few months away, and also because of fierce opposition from Senate Democrats, including Sen. Joe Manchin (D-W.Va.), who is influential as ranking member on the Senate Energy and Natural Resources Committee.

The committee, which must approve Pendley’s nomination before it reaches the Senate floor, includes three of the most endangered GOP senators up for re-election in November: Cory Gardner (R-Colo.), Steve Daines (R-Mont.), and Martha McSally (R-Ariz.).

Democrats say Pendley’s representation of oil interests, history of attempting to thwart environmental laws, and his long record of calling for the broad disposal of public lands is fundamentally antithetical to the bureau’s mission.

The Federal Land Policy and Management Act of 1976 requires the bureau to keep public lands public, and manage public land for multiple uses, including energy and conservation. The law requires the Bureau of Land Management to prioritize designating and protecting areas of critical environmental concern.

In a statement Wednesday, Manchin said Pendley’s “past comments calling the Endangered Species Act ‘a joke,’ comparing global warming to the existence of unicorns and arguing the federal government should sell off its public lands are disqualifying.”

Column Controversy

Manchin said Pendley is also unfit because he wrote a 2017 column saying that Black Lives Matter was built on a “terrible lie,” which “spread like cancer through inner cities endangering men and women in blue and citizens who look to them for protection.”

The land bureau declined to respond to specific questions about how it believes Pendley’s 2017 Black Lives Matter column will affect his confirmation chances. In a statement, Pendley said the killing of George Floyd should not have happened and he prays for Floyd’s family.

“I have never shied away from controversy, I spent the past 30 years of my legal career defending the constitutional rights of those whose liberties were infringed upon by the government. As an officer of the court, I took it as my solemn duty to seek liberty and justice for all. I remain steadfast in that pursuit,” Pendley said.

Rep. Rob Bishop (R-Utah), the ranking Republican on the House Natural Resources Committee, said Pendley “brings the perspective and experience that is needed to help BLM avoid bureaucratic inertia and overcome decades of chronic federal lands mismanagement. The arrows lodged at him by fringe left special interest groups tell us that we have the right man for the job.”

Energy and Natural Resources Committee staff haven’t specified a timeline for Pendley’s confirmation process.

“The Senate process allows for a thorough vetting of nominees, during which members can have in-depth conversations and question Presidential appointees. I am committed to ensuring a thorough but fair process for all nominees who come before the Energy and Natural Resources Committee—including Mr. Pendley,” Sen. Lisa Murkowski (R-Alaska), who chairs the committee, said in a statement.

Presidential Election

Even if confirmed, Pendley’s opportunity to put his stamp on the agency could await the outcome of the November presidential election, said Mark Squillace, a natural resources law professor at the University of Colorado-Boulder.

“A second Trump term with Pendley at the helm of the BLM would make it much harder to beat back all of the pro-development decisions that would likely result,” said Squillace.

With Pendley as acting director, the bureau has begun relaxing livestock grazing regulations, proposed to auction more than 110,000 acres of land near Utah national parks to oil drillers, and issued a final paln for a new road through an Alaska national preserve to help develop a new mining district in a remote and roadless Alaska mountain range.

Last month it issued a final plan to open the National Petroleum Reserve-Alaska to oil and gas leasing to the maximum extent possible.

A Senate vote putting Pendley officially in charge could be important because of what it would say about how the Senate views the bureau, said some environmental groups and attorneys.

“What happens if he’s confirmed is it sends a different message to both Pendley himself and the entire Bureau of Land Management that his positions are somehow O.K., and that what they’re doing, they should just double-down,” said Nada Culver, senior counsel for the National Audubon Society.

To contact the reporter on this story: Bobby Magill at bmagill@bloombergindustry.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergindustry.com; Chuck McCutcheon at cmccutcheon@bloombergenvironment.com

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