In a case brought by the Sierra Club and other environmental groups, a federal court in Maryland has seriously unsettled oil and gas operations in the Gulf of Mexico, ruling that a 2020 decision by the National Marine Fisheries Service violates the Endangered Species Act. The U.S. District Court for the District of Maryland Aug.19 found that NMFS, an agency under the Commerce Department’s National Oceanic and Atmospheric Administration, issued a flawed “biological opinion” (BiOp) for exploration and production in the Gulf “which underestimated the risks of harm to protected species and took inadequate measures to mitigate those risks.”
NMFS, the court concluded, violated both the Endangered Species Act and the Administrative Procedures. Its BiOp was consequently “arbitrary and capricious.” Oil and gas activities cannot go forward easily without a favorable biological opinion. A valid BiOp is required for the U.S. Interior Department to issue permits for new drilling.
District Court Judge Deborah L Boardman ruled, “The Court finds that the BiOp should be vacated effective December 20, 2024. The plaintiffs brought this challenge to the BiOp nearly four years ago. They moved for summary judgment more than two years ago. The BiOp is, as they have claimed, unlawful.” Boardman did not immediately vacate the BiOp but remanded it, giving NMFS some four months to come up with an acceptable replacement. She said she did this to avoid chaos in the Gulf of Mexico’s important oil and gas operations.
NMFS must come up with a new, lawful assessment of the risks of oil and gas operations to vulnerable wildlife, citing in particular the “critically endangered” Rice’s whale, which exists only in the Gulf of Mexico and is on the brink of extinction. Among other flaws, the court noted that NMFS assumed in the BiOp that a catastrophic oil spill of the size of the 2010 Deepwater Horizon could not occur, despite the agency’s separate analysis that such a spill could happen.
Boardman’s ruling noted that the 2010 oil rig blowout and explosion released millions of barrels of oil into the Gulf “several hundred times more than the amount NMFS anticipated for a worst-case scenario oil spill.” She added, “NMFS unlawfully deferred to [the Interior Department’s Bureau of Ocean Energy Management] conclusion that an oil spill larger than one million barrels was unlikely to occur, rather than make an independent determination of its own.”
The oil and gas industry supported NMFS in the case, with the American Petroleum Institute appearing as an amicus. Over the four years of the litigation, the industry sought to change the venue to a court more likely to view its case favorably.
The opponents of the NMFS BiOp filed their case in October 2020. The judge noted, “On January 19, 2021—the final full day of the departing presidential administration—the defendants moved to transfer the case to the U.S. District Court for the Southern District of Texas or the U.S. District Court for the Eastern District of Louisiana.” The court denied the change of venue petition in May 2021.
The implications of the decision are potentially enormous, as the Gulf of Mexico produces about 14% of the nation’s crude oil and 5% of the nation’s dry gas, according to the Energy Information Administration. If the Gulf were a country it would be among the top 12 oil producers in the world.
Dustin Meyer, a senior vice president at the American Petroleum Institute, told Bloomberg, “The ramifications could be potentially enormous for operations in what we and many others recognize is such a vital, producing region. The level of concern is very high.”
Can NMFS meet the looming late December deadline? Boardman noted that the relevant Interior Department offshore bureaus asked NMFS to reconsider the BiOp in October 2022. Boardman said that “NMFS originally agreed to conclude that consultation by September 1, 2024. NMFS later represented that it would issue a new or revised biological opinion in December 2024. Now NMFS says completion has slipped to ‘at least until the end of 2024,’ if not ‘until late winter or early spring 2025.’”
Boardman, 49, has been a Maryland district court judge since June 2021, a Biden appointee.
–Kennedy Maize