The U.S. District Court for the District of Maryland has ruled that the National Marine Fisheries Service (NMFS) biological opinion on oil and gas exploration in the Gulf of Mexico does not ensure the protection of an endangered whale and sturgeon species.
The ruling could jeopardize federal offshore oil and gas drilling in the Gulf, said several energy industry defendants in Sierra Club v. NMFS.
The court said it would dismiss the biological opinion on December 20, 2024, if NMFS fails to submit a new opinion.
NMFS has begun work on a revised biological opinion. The regulator told the court that it hopes to complete the review by year’s end, but that it could be delayed until spring 2025.
Nearly four years ago, the Sierra Club, the Center for Biological Diversity, Friends of the Earth and the Turtle Island Restoration Network filed a lawsuit challenging the legality of the NMFS biological opinion.
The court ruled in favor of environmental groups on August 19, saying that it had “underestimated the risks and harms of oil spills to protected species.” Its threat analysis for two protected species, Rice’s whale and Gulf sturgeon, assumed that the populations of those species would remain as large as before the catastrophic Deepwater Horizon oil spill, even though the available evidence and NMFS’s own findings indicated that their populations had been significantly decimated.”
It added that the agency had only addressed two of the five stressors identified that likely pose a threat to the endangered Rice’s whale and had never explained how remedial action would protect the species.
“For these reasons, the (biological report) is unlawful and must be annulled,” the court said.
Oil and gas companies expressed their disappointment in particular at the court’s decision to annul the ruling, although the authorities are currently working on an appeal. They also expressed concerns about the possible impact of the ruling on the offshore industry.
“The disruptive consequences for Gulf of Mexico states and the U.S. economy cannot be understated if federal agencies fail to issue a new biological opinion in a timely manner,” the American Petroleum Institute, National Ocean Industries Association and EnerGeo Alliance, all defendants in the case, said in a joint statement. “Timely completion of the revised biological opinion should be their highest priority. Any disruptions would not only affect hundreds of thousands of energy workers in the region, but could also increase energy insecurity by jeopardizing a significant portion of oil production from the Gulf of Mexico, nearly 15% of total U.S. production.”
The compatibility of oil and gas production in the Gulf of Mexico with the future of the Rice Whale has been the subject of several legal disputes in recent years.
Last year, the Biden administration agreed to exclude Rice’s whale habitat from any leases and to require oil and gas ships to reduce their speed to 10 knots when traveling through the whales’ habitat.
The Bureau of Ocean Energy Management (BOEM) included these terms in its Lease Sale 261, scheduled for September 2023, but the oil and gas industry successfully fought to remove these protections. The litigation delayed the sale until December 2023 (OGJ Online, December 4, 2023).
The next federal sale of oil and gas leases in the Gulf of Mexico is scheduled for 2025.
