Pendley's precedent

By KELSEY TAMBORRINO  08/28/2020 10:00 AM EDT

PENDLEY'S PRECEDENT: Despite the expected withdraw of William Perry Pendley's official nomination to run the Bureau of Land Management, he's staying atop the agency, and it's drawing legal challenges. Now, legal experts and environmental groups warn those lawsuits and the succession order he signed himself may open BLM up to further challenges, your ME host and Ben Lefebvre report for Pros.

The Interior Department has dismissed the challenges, and said Pendley was on strong legal footing to hold the job and was well-qualified for the role. Pendley "brings a wealth of knowledge and experience to the Department and is committed to carrying out the Administration's priorities and achieving the BLM's multiple-use mission for the betterment of the American people," Interior spokesperson Ben Goldey said in a statement.

But Brian Frazelle, appellate counsel for the Constitutional Accountability Center, a group that has previously challenged Trump administration actions in court, said Interior's stance on the 1998 Federal Vacancies Reform Act gives it "a license for manipulation." He also said that while some of the circumstances are different, much of the reasoning in a March ruling against Ken Cuccinelli, who headed the U.S. Citizenship and Immigration Services, also applies to Pendley's designation.

Pendley hasn't signed anything tied to major agency rulemakings, which would leave few targets for lawsuits, said Kathleen Sgamma, head of the Western Energy Alliance, a trade association of oil and gas companies in Western states. "The BLM director doesn't sign documents like Records of Decision, so that's not likely to be a fruitful line of argument in litigation anyway," Sgamma said.

Still, Rebecca Jones, a policy counsel at Project on Government Oversight, said Pendley's position represents a larger pattern playing out during the Trump years. "This is continuing a pattern that we're seeing, not only under this administration, but I think dialed up to 11 under this administration, [with] the gamesmanship that's being played out with these vacant roles and the very creative reading of the law," she said.

By the way: PEER and Western Watersheds Project amended their federal suit this week that seeks Pendley's ouster to also challenge the recently announced designation of Margaret Everson "to exercise the delegable authority" of the National Parks Service director, following the exit of David Vela. The suit had challenged Vela's role atop NPS and the updated complaint argues that Everson also violated the Federal Vacancies Reform Act. A District Court judge ordered the defendants to answer by Sept. 14.

From Politico's Morning Energy