To hear him tell it, William Perry Pendley’s ousting by a federal judge last month from acting with the authority of the director of the Bureau of Land Management was no big deal.
Pendley told a Wyoming newspaper last week that he continued working as he had been, leading a bureau that has been central to President Trump’s energy dominance agenda on federal lands (Greenwire, Oct. 9).
"I’m still here, I’m still running the bureau," the conservative lawyer and Trump administration official told the Powell Tribune, noting the judge’s ruling has had "no impact whatsoever."
But legal experts say the judge’s rebuke of Trump’s reliance on acting positions — instead of getting agency heads confirmed by the Senate — may leave some decisions made under Pendley vulnerable, including his approval of major oil and gas initiatives.
The Interior Department has vigorously defended Pendley’s time as de facto BLM chief and promised to appeal to the 9th U.S. Circuit Court of Appeals in San Francisco.
But advocacy groups are looking to see what can be unraveled now that Pendley’s tenure has been ruled illegitimate.
Some experts say that Chief Judge Brian Morris of the U.S. District Court for the District of Montana, who made the initial Sept. 25 order upending Pendley’s authority, probably will stick to ruling on Montana-specific issues despite making it clear he thinks the import is broader. Others say the 9th Circuit panel of judges will likely feel more comfortable directly overturning activities within their jurisdiction, which stretches from Southern California up to Alaska.
In the 424 days that Pendley acted with authorities delegated to him by Interior Secretary David Bernhardt, BLM approved the Arctic National Wildlife Refuge (ANWR) drilling program; cleared a 5,000-well oil and gas project in eastern Wyoming; and advanced several consequential resource management plans in Colorado, Utah and Wyoming.
That’s not to mention a controversial administrative overhaul, moving BLM headquarters from Washington, D.C., to Grand Junction, Colo.
The case is extraordinary, experts say, and it’s far from over, even if it’s unclear whether Trump administration critics will be able to topple any of Pendley’s achievements.
"I guess I’d be surprised if it went so far as to invalidate the ANWR [record of decision] or any specific oil and gas leases," said Pat Parenteau, a professor at the Vermont Law School and former regional counsel for EPA. "But I confess I’ve never seen anything quite like this before."
‘No force and effect’
The federal judge pulled no punches in his original ruling against Pendley.
On Sept. 25, Morris, an Obama appointee, found that "any function or duty" that Pendley performed since last July should "have no force and effect and must be set aside as arbitrary and capricious."
July 2019 marks when Pendley was hired as BLM deputy director of policy and programs. Shortly after, Bernhardt added "exercising the authority of director" to Pendley’s title and repeatedly extended his tenure.
The president briefly advanced Pendley for Senate confirmation earlier this year, but the White House withdrew the nomination within weeks following blowback.
Pendley signed his own succession memorandum without public notice on May 22, aimed at allowing him to helm BLM indefinitely.
But Montana Gov. Steve Bullock, a Democrat running for Senate, then asked the Montana district court to consider Pendley’s authority a violation of the Constitution and of the Federal Vacancies Reform Act of 1998.
Bullock’s action this summer followed sustained criticism of Pendley as acting BLM chief, due to Pendley’s history as a conservative lawyer at the Mountain States Legal Foundation and his controversial views featured in books and columns for the Washington Examiner and other publications.
It’s not yet clear which of Pendley’s actions may be "set aside as arbitrary and capricious" as outlined by the judge, experts say.
The question, said University of Richmond School of Law constitutional law professor Carl Tobias, is what has Pendley’s thumbprint been during the 424 days covered by Morris’ ruling?
"The potential is huge, but nobody knows what the scope is except the Interior people, and they are just disputing the whole thing," he said.
‘The answer is simple’
Advocacy groups are hoping for extensive fallout from the Pendley case, affecting both high- and low-profile energy decisions.
Taking Morris’ original decision at its word, the National Audubon Society, the Natural Resources Defense Council and more than a dozen other organizations sent a letter to Bernhardt on Oct. 6 arguing that a host of BLM decisions should be voided.
They claim that both the direct duties performed by Pendley and those carried out by others under his influence should trigger action, calling into question decisions like the ANWR drilling authorization, the Bears Ears National Monument Resource Management Plan, and Wyoming’s Moneta Divide Natural Gas and Oil Development Project and Casper RMP Amendment.
Several high-profile decisions involve planning that BLM has been doing for years but that only came to conclusion under Pendley’s tenure. But, collectively, these decisions represent a broadly pro-energy set of documents, guidelines and plans that affect the long-term management of public lands from New Mexico to Alaska. In particular, the impact could involve controversial actions like the congressionally mandated leasing of the Arctic refuge to oil and gas drillers.
The Congressional Western Caucus has derided the "irrational outcome" possible from the judge’s ruling. In defending BLM and Interior’s action, the lawmakers noted that the Morris decision would "spell doom" for the bureau’s operations if taken at face value.
But the court may not find that irrational, some experts said.
"It would not surprise me in the least if the courts try to impose some order on this disarray by setting aside some BLM decisions," said John Leshy, former Interior counsel and a professor at the University of California, Hastings.
"The record is clear that the Administration has been flouting the rules with an elaborate layering of memos and (somewhat inconsistent) rationales to justify Pendley’s running the BLM," he said in an email.
Interior has gone on the offensive against the judge’s decision, projecting confidence that Pendley’s case won’t derail BLM actions over the last year and a half.
After Morris requested that Montana officials and Interior each note what decisions should be affected by his order, Interior wrote, "The answer is simple: none."
Interior Solicitor Daniel Jorjani tweeted on Sept. 29 that the judge had ignored significant precedent.
The Bullock v. Bureau of Land Management ruling is erroneous, fundamentally misinterprets the law and unreasonably attempts to up-end decades of practice spanning multiple presidential administrations from both parties. pic.twitter.com/BZYL7CTPTB
— Solicitor Daniel Jorjani (@DOIJorjani)
September 30, 2020
Bernhardt, too, has defended Pendley, telling Colorado Politics on Oct. 2 that he is the one ultimately making the decisions. He added that he was familiar with what advocacy groups had "hypothesized" about the fallout of the Montana district court ruling.
"What I would say to them is their hopes and dreams are about to be crushed," he said.
Back to the drawing board?
Tom Sansonetti, former Interior solicitor during the George H.W. Bush administration, said the agency’s confidence may be warranted and the ultimate impact "minimal."
BLM’s legal team could dust off every decision document that Pendley signed to ensure each has the right authority and effective date, he said in an email, echoing other former Interior lawyers who spoke with E&E News.
"If the Department wants to make a decision stick, the Solicitor’s office will find a way for that to occur," said Sansonetti, now a partner at Holland & Hart LLP in Colorado.
But others see Interior’s public defense of Pendley as potentially boosting the chance that some decisions will be overturned.
Leshy, who served as solicitor for the Interior during the Clinton administration, said judges are likely to pull in some administration officials to identify who has been making what decisions and may be fed up with what they see as the administration’s scofflaw approach.
"Every administration is cut some slack on putting ‘acting’ people in charge when there is a vacancy in positions requiring Senate confirmation," he said in his email. "But there’s never been an extreme attempted stretching of the rules such as this administration is doing."
In Pendley’s interview with the Powell Tribune, he said the court cases against him represent an attempt to invalidate the Trump administration’s work. Public Employees for Environmental Responsibility and the Western Watersheds Project filed a lawsuit in May also challenging Pendley’s authority as well as that of Margaret Everson, the National Park Service’s acting chief.
Some opposition groups view their own fight in much the same way.
"There is this question of, how much authority do they really have?" said Jeremy Nichols, climate and energy program director for WildEarth Guardians.
With the Pendley ruling, that’s no longer just a theoretical question. If Pendley’s unlawful tenure gives groups an edge in their efforts to challenge the Trump administration’s energy dominance approach to public lands management — or even brings ammunition to the much larger battle against fossil fuel development and use — they’ll take it, he said.
"If we have a chance of undoing [the resource management plans], throwing BLM back to the drawing board, that presents an opportunity," he said. "From our perspective, we are trying to hold the line."