Overnight Energy & Environment

OVERNIGHT ENERGY: Watchdog report raises new questions for top Interior lawyer | Senate Democrats ask Trump to withdraw controversial public lands nominee | Border wall water use threatens endangered species, environmentalists say

Greg Nash

HAPPY TUESDAY! Welcome to Overnight Energy, The Hill’s roundup of the latest energy and environment news. Please send tips and comments to Rebecca Beitsch at rbeitsch@thehill.com. Follow her on Twitter: @rebeccabeitsch. Reach Rachel Frazin at rfrazin@thehill.com or follow her on Twitter: @RachelFrazin.

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FOR YOUR AWARENESS REVIEW: A new report from the Interior Department’s watchdog reignites questions over the involvement of the agency’s top lawyer in withholding hundreds of pages of public documents.

The report gives ammunition to Democrats who have accused Interior Solicitor Daniel Jorjani of perjuring himself before lawmakers and are now calling for a criminal investigation into the matter.

The report from Interior’s Office of Inspector General (OIG) centers around the “awareness review” process at the department, which allowed political appointees to review Freedom of Information Act (FOIA) requests — something critics say gave Trump appointees undue influence over what records were released.

Though Jorjani told lawmakers he did not typically review FOIA requests, the report found that both political appointees and career officials withheld documents ahead of then-Deputy Secretary David Bernhardt’s confirmation hearing.

“Officials at Interior are now on the record admitting what we suspected all along: they orchestrated a coverup to protect Secretary Bernhardt during his confirmation, and all but lied to Congress about it. We call on the Department of Justice to open a criminal investigation into whether or not Jorjani perjured himself before Congress when he assured the Senate Energy and Natural Resources Committee that there was no ‘heightened’ FOIA review process,” Sen. Ron Wyden (D-Ore.), a senior member of the Senate Energy and Natural Resources Committee, and House Natural Resources Committee Chairman Raúl Grijalva (D-Ariz.) said in a join statement.

Wyden has already accused Jorjani of having “lied to the committee and perjured himself” when asked about his role in the process during his May confirmation hearing.

Though Jorjani told lawmakers at the time that he “typically did not review records prior to their release under the FOIA,” he takes more responsibility for withholding the documents in the report.

The investigation stemmed from FOIA litigation in early 2019. Interior withheld 253 pages of records it was required to produce under a court order in the suit shortly after Bernhardt was nominated to his post.

“Hubbel Relat (who is now the DOI deputy solicitor but at the time was the DOI’s counselor to the Secretary) directed Office of the Solicitor (SOL) attorney-advisors supporting the FOIA litigation to withhold any documents that were sent to or from Bernhardt, or that referenced him in any way, from upcoming FOIA releases related to the litigation,” the report states.

The documents were released several months after Bernhardt was confirmed. Critics see that as a violation of the court order in the litigation, which required the department to review 1,500 pages each month. Both Interior and the Department of Justice have argued that so long as they review all the documents, it’s legal to withhold some provided the agency does not withhold them indefinitely, giving the agencies discretion over when to release them.

However, that did not satisfy lawmakers, who argued both the awareness review and Jorjani’s responses to questions about it don’t withstand scrutiny.

According to the report, Rachel Spector, chief of Interior’s FOIA office, said she told employees “it was a ‘legitimate activity to scrutinize’ documents before release to ‘understand what might hit the press or [what] Congress might ask David [Bernhardt] about … during the pendency of his nomination,’” adding that “choosing the order of document production was not a ‘violation of the law.’” 

Jorjani told OIG investigators that as the DOI’s top attorney, he owned the decision for withholding the documents, not Relat.

“Knowing Hubbel [Relat] and his absolute focus on compliance and squaring every corner, he probably wanted to make sure that everything he was doing was fully compliant.” Jorjani told OIG, adding, “Either I came up with the idea — and I would like to think I’m smart enough to do that — or Hubbel [Relat], being proactive, said, ‘Oh, can we do this compliantly and consistent with the court’s direction,’ and then ran it past me. … It would be one of those two, I would think.” 

Read more about the OIG report here

DEMOCRATS, UNITED: All 47 members of the Senate’s Democratic caucus signed a letter opposing President Trump’s nominee to lead the Bureau of Land Management (BLM), citing William Perry Pendley’s history of controversial comments and opposition to federal ownership of public lands.

In a letter to Trump, lawmakers ask the president to nominate a “new, qualified candidate” to lead the agency responsible for nearly 250 million acres of public lands.

“Mr. Pendley’s public record, including his advocacy for reducing public lands and access to them, routine attempts to undermine tribes, and climate change denial makes him unfit for the position,” they wrote in a letter led by Sen. Martin Heinrich (D-N.M.).

“[BLM] needs a leader who reflects the values of the American people and their support for access to public lands. Mr. Pendley’s record lays bare his decades of opposition to those values.”

Pendley, already the de facto director of BLM, has been serving in that role for over a year through a series of temporary orders, and more recently a supposed change in the Department of the Interior’s succession orders. His authority through those moves is currently being questioned by a lawsuit.

Pendley has a long history of advocating for selling off public lands, penning books with titles such as “War on the West: Government Tyranny on America’s Great Frontier” and “Warriors for the West: Fighting Bureaucrats, Radical Groups, and Liberal Judges on America’s Frontier.” 

Lawmakers also see his comments denying climate change and arguments against the legal precedent that views tribal members as members of sovereign political entities, rather than as a racial group, as disqualifying.

“Mr. Pendley has on many prior occasions mischaracterized, mocked, or undermined tribes’ experiences, rights, and religion,” they write.

“Mr. Pendley’s problematic history is particularly concerning given the Bureau’s statutory and treaty responsibilities regarding consultations with tribes.”

In 2017, Pendley tweeted that climate change is like unicorns in that “neither exists.”

The White House defended its choice.

“William Perry Pendley is a true son of the West, an outdoorsman, a Marine, and an accomplished public servant. His careful acting stewardship of the bureau to its new home in Grand Junction, Colorado, has helped transfer jobs outside the swamp, while maintaining smooth operations throughout. The White House fully supports his expeditious confirmation by the Senate,” spokesman Judd Deere said by email.

The Department of the Interior said Democrats’ letter “is just another sad attempt to smear the reputation of a dedicated public servant and former Marine who is one of the most highly qualified individuals ever to be considered for the position of Bureau of Land Management Director.”

Read more about the Democrats’ opposition to Pendley here.

ENDANGERING THE ENDANGERED? A government assessment recently obtained by an environmental group appears to link a well the group says is used in U.S.-Mexico border wall construction to low water levels in wildlife habitats at an Arizona refuge with endangered species. 

Defenders of Wildlife on Monday published the June government assessment that found the Glenn Ranch Well “is significantly impacting wells located at San Bernardino National Wildlife Refuge.”

“This correlates with why some ponds at the Refuge are void of water, and why it is so difficult to maintain water levels at other ponds that currently have threatened and endangered fish species,” it says. 

According to Jacob Malcom, director of the Defenders of Wildlife’s Center for Conservation Innovation, the well is used by the federal government to make concrete for the wall. The Department of Homeland Security did not respond to The Hill’s email seeking comment and confirmation on what the well is used for. 

According to Defenders, this puts the endangered Yaqui catfish, beautiful shiner, Yaqui chub and Yaqui topminnow fish species at risk. Also facing threats are the Chiricahua leopard frog, Mexican garter snake and Huachuca water umbel plant, the group said in a statement. 

Malcom, who is also a former biologist at the refuge, told The Hill that for some species, less water means a loss of habitat and an inability to survive. 

“One of the big threats to the water umbel is the loss of wetlands. If it dries out too much, the species just cannot grow,” he said. “When the water is lost, the wetlands are lost they lose their habitat and they simply can’t exist there anymore.”

Read more about the refuge here

EFFICIENT OR DEFICIENT? Attorneys general from 16 states have threatened to sue the Department of Energy (DOE) over its failure to update efficiency standards for 25 products. 

In 60 days, the states are expected to sue the department for not updating standards for how efficient items like dishwashers, refrigerators and microwaves are. 

“DOE’s delay in strengthening national standards results in missed opportunities to conserve energy and avoid the economic and environmental costs of energy production and use,” they wrote to the department. 

“Without the benefit of updated standards, electricity and natural gas consumption will increase, as will energy bills for states, municipalities, and their residents and businesses. Additionally, increases in fossil fuel consumption resulting from reduced efficiency lead to increased emissions of air pollutants that negatively impact public health and the environment, including emissions of carbon dioxide and other gases that contribute to climate change,” they added. 

A coalition of environmental groups and others made a similar threat on Monday. 

GREENS (MOSTLY) EMBRACE HARRIS: The big news of Tuesday afternoon was presumptive Democratic nominee Joe Biden’s selection of Sen. Kamala Harris (D-Calif.) to be his running mate. Shortly after, environmental groups released statements praising the vice presidential candidate. 

“There is so much at stake this November, and we could not be more excited to help elect the Biden-Harris ticket,” said Tiernan Sittenfeld, senior vice president for government affairs at the League of Conservation Voters Action Fund. 

“Together, Joe Biden and Kamala Harris will fight for the health of communities most impacted by the climate crisis and environmental injustice and work to build a more just and equitable clean energy future for all.”

Environmental Defense Fund Action President Joe Bonfiglio similarly praised Harris as “an incredibly strong climate advocate and will make a great Vice President.”

“This ticket shows just how committed Joe Biden is to making real and lasting climate progress and stands in stark contrast to Donald Trump and Mike Pence’s efforts to implement a polluter first agenda,” he said. 

Varshini Prakash, the co-founder of the progressive Sunrise Movement also praised Harris’s environmental stances, but raised questions about her tenure as a prosecutor in California. 

“She took our No Fossil Fuel Money Pledge, ran on the Green New Deal as a core part of her platform, and mentioned it more in the Presidential debates than almost any other candidate,” Prakash said. “I’m also deeply aware of Senator Harris’ record as a prosecutor and the ways in which a number of her decisions harmed communities of color…We hope that she has learned from her past mistakes and continues listening to the activists who have taken to the streets as she has joined alongside them. Our movement remains committed to defeating Trump and Pence this November and hope to hold her accountable in office — just like we will with Joe Biden.” 

Washington Governor Jay Inslee (D), a fellow former candidate for the presidential nomination who ran a climate-focused campaign, praised Harris as a “true fighter for environmental justice.”

Read The Hill’s coverage of the vice presidential selection here.


Marathon Poised for $1.1 Billion Tax Refund From Coronavirus Aid, Bloomberg reports

‘We Had To Get Out’: Despite The Risks, Business Is Booming At National Parks, NPR reports

Federal Workers Ready to Retire If Government Forces Reopening, Bloomberg Law reports

NC Dept. of Environmental Quality denies permit for Mountain Valley Pipeline, The Mebane Enterprise reports

ICYMI: Stories from Tuesday…

Phoenix breaks its record for most 110-degree days in a year

Watchdog report raises new questions for top Interior lawyer

Border wall water use threatens endangered species, environmentalists say

Senate Democrats ask Trump to withdraw controversial public lands nominee


Biden has an ambitious climate plan, but it needs to do much more to decarbonize the transport sector, write Margo T. Oge, who directed the EPA’s Office of Transportation Air Quality from 1994 to 2012 and Drew Kodjak,  the executive director of the International Council on Clean Transportation.


On Thursday, August 13, The Hill Virtually Live hosts a virtual event, Breaking Through: U.S. Businesses Powered By Global Exports. Global trade is messier today than years ago — a pandemic is creating unforeseen challenges, sanctions are back, and the WTO is wobbly. But global trade is still thriving in many sectors. While nations may be squabbling, businesses are finding ways to deliver their products to consumers. Rep. Rick Larsen, former Commerce Secretary Carlos Gutierrez and more join The Hill’s Steve Clemons. RSVP here today.

Tags Donald Trump Jay Inslee Joe Biden Martin Heinrich Mike Pence Rick Larsen Ron Wyden

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