Senate approval of William Perry Pendley, President Trump's nominee to lead the Bureau of Land Management, wouldn't affect the agency's daily operations in any significant manner, legal experts and former senior bureau officials say.
Confirmation would allow the conservative lawyer to take an active role in policy decisions. But technically, there's little Pendley would do as the permanent BLM director that he is not already doing as the de facto acting director and deputy director of policy and programs. An updated legal complaint filed this week against the Interior Department noted several examples where Pendley is already involved in hiring and managing the day-to-day activities of staff.
"My gut instinct is confirmation wouldn't allow him to do a lot more than he could do now," said John Leshy, Interior's top lawyer during the Clinton administration.
But Senate confirmation would grant the conservative lawyer the authority to be involved in policymaking and resource management decisions that he may not feel comfortable leading today under his current title of "exercising authority of the director" — a nebulous term that some legal sources say has little or no legal meaning.
A respected legal scholar who talked to E&E News on condition of anonymity said the president's motivation for the nomination appears to be geared toward giving Pendley more authority on policy issues, like controversial proposals to reduce the numbers of wild horses and burros on federal rangelands.
"They want to give him that seal of approval," the source said.
"An acting [director] does not enjoy the respect and the ability to make policy that a permanent leader does," said Carl Tobias, a University of Richmond law professor.
Bob Abbey, former BLM director during President Obama's first term, said there are "advantages to being confirmed by the Senate" related to "formal delegations of authority" at Interior.
"Additionally, one is held in higher regards when meeting with [the Office of Management and Budget] and congressional staffs, and with federal, state and tribal leaders" when confirmed by the Senate, Abbey said.
Senate confirmation would "provide Pendley some swagger, as it connotes some higher approval and removes the temporary sticker," said George Stone, director of the Public Lands Foundation, a BLM retirees' group.
And approval by the GOP-led Senate would be symbolic, sending a clear message to the public that Republican leaders approve of the Trump administration's policies that favor extracting natural resources over conservation, some say.
But at least in the short term, "I do not see anything changing, whether or not Pendley is confirmed by the Senate," Abbey said.
Long road to confirmation
Interior Secretary David Bernhardt hired Pendley as BLM's deputy director of policy and programs on July 15, 2019, just days before Interior announced it would relocate BLM's Washington-based headquarters to Grand Junction, Colo.
Two weeks later, Bernhardt added "exercising authority of the director" to his title — marking Pendley as the bureau's temporary leader.
Pendley, who served as Interior's deputy assistant secretary for energy and minerals during the Reagan administration, had never worked at BLM.
Pendley is President Trump's first nominee for BLM director in nearly four years in office.
The "exercising authority of the director" title that Pendley is operating under today has proved problematic.
Interior in recent weeks has begun issuing public statements disputing that Pendley is "acting" director — an apparent response to a federal lawsuit challenging Pendley's authority to perform the duties of BLM director filed in May by Public Employees for Environmental Responsibility and Western Watersheds Project (Greenwire, May 11).
That lawsuit says Bernhardt's appointment of Pendley to lead the bureau violates the Federal Vacancies Reform Act, which caps the time acting directors can serve. It also says Pendley does not qualify to lead the agency under criteria laid out by the Federal Land Policy and Management Act.
Still, Pendley in the past year has performed many of the duties of BLM director, according to a revised version of the legal complaint updated this week by the advocacy groups (E&E News PM, July 6).
- Directing the "mandatory relocation of senior BLM career employees" out of Washington to the new headquarters in Colorado. That relocation, which also includes the relocation of more than 200 other positions to state offices in the West, is now nearly complete.
- Supervising "the hiring, promoting and appointments of lower BLM officers and overseeing and directing the expenditures of tens of millions of appropriated dollars."
- Making "major policy and operational decisions," including a controversial move to "treat wild horses as the most important threat to BLM lands."
"Further, he has made major decisions on closing BLM lands to public access — or, in many cases, deciding not to close the lands — which impacted the infection risk of the public and BLM staff in those areas," the updated complaint says of the agency's response to the novel coronavirus.
It's clear Pendley is already in firm control of BLM, said Pat Parenteau, senior counsel for the Vermont Law School's Environmental Advocacy Clinic.
"He's been making all kinds of decisions and signing all kinds of documents — doing a 'great job,' according to his boss," said Parenteau, referring to Bernhardt's public praise of Pendley.
The Senate confirmation hearings before the Energy and Natural Resources Committee are expected to be extremely contentious.
Pendley is controversial, due mostly to his public statements and writings in the past 30 years opposing federal landownership, as well as for his work as a lawyer, including as the former president of the conservative Mountain States Legal Foundation.
His views on social justice issues will also be discussed during confirmation hearings.
West Virginia Sen. Joe Manchin, the Energy and Natural Resources Committee's ranking Democrat, has said these comments, as well as his past views on federal lands, are "disqualifying" (E&E Daily, July 1).
Former Vice President Joe Biden, the presumptive Democratic nominee for president, has also come out in opposition to Pendley's nomination.
Many don't see the Senate confirming him anyway.
It's a long shot, Parenteau said.
He said Senate leaders probably don't want "a big fight" over the Pendley nomination and all that approving him would signify.
"There are still ethical conflict of interest issues hanging over his head, not to mention the scurrilous comments about that other BLM — Black Lives Matter," Parenteau said.
He added, "It will take some time to get the stink out of the room."
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