In August 2024, Sierra Club, its partners, the critically endangered Rice’s whale, and numerous other protected species experienced a sweet victory when a federal district court in Maryland vacated a National Marine Fisheries Service Biological Opinion (BiOp), a document meant to address potential harm to protected species caused by oil and gas drilling activities in the Gulf of Mexico. The court held that the BiOp, issued in 2020, violates the Endangered Species Act (ESA) and Administrative Procedure Act, highlighting the agency’s failure to sufficiently protect several Gulf species including the critically endangered Rice’s whale. With population estimates of less than 50 individuals exclusively inhabiting Gulf waters, the Rice’s whale is considered one of the planet’s most endangered marine mammals. Offshore drilling poses the most significant threat to the species’ existence, and scientists have concluded that the loss of even one whale could lead to the species’ extinction.
The court ruled that the BiOP was unlawful on several grounds. First, the BiOp underestimated the risk and harms of oil spills on protected species. Specifically, the agency failed to evaluate the risk and impacts from a very large oil spill greater than one-million barrels despite evidence that drilling activities could cause spills of that size. Second, in assessing whether oil and gas drilling activities in the Gulf of Mexico would jeopardize the continued existence of two ESA listed species – the Rice’s whale and the Gulf sturgeon – the agency assumed baseline population levels that ignored the catastrophic impacts of the 2010 Deepwater Horizon spill. The Rice’s whale population experienced a 17% decline as a result of the disaster, but the agency failed to account for this by assuming the species’ 2020 population was the same as it was in 2009. The court held that the agency was required to analyze impacts of the proposed oil and gas drilling against the cumulative harms that have led to the species’ current critically endangered status. The agency may not take action that deepens species’ jeopardy by causing additional harm: “If a species is already speeding toward the extinction cliff” as a result of “baseline conditions or cumulative effects,” “an agency may not press on the gas.”
Third, the court held that the agency violated the ESA by prescribing incomplete mitigation to protect the Rice’s whale that only addressed two of the several stressors the agency identified as contributing to the species’ peril. The agency failed to explain how those measures alone were sufficient to prevent species’ jeopardy. Similarly, the agency erred by failing to explain how the estimated loss of 12 whales that would occur with prescribed mitigation (nearly one-third the total population), as opposed to 17 whales without protective measures, would prevent jeopardy in light of evidence that the loss of even one reproductive female could result in population-level destructive effects.
Finally, the court held that the Biological Opinion’s Incidental Take Statement, providing operators liability coverage for “take” – harm or mortality – of whales, occurring incidental to approved oil and gas development activities, was flawed. First, the court found the agency’s failure to recognize oil spills as a source of take was irrational. Second, the agency’s method for calculating the number of whales injured or killed as a result of vessel strikes ignored the geographic locations in which vessels travel as a key factor in assessing the number of whales harmed. Vessels inevitably travel in areas dense with protected species, elevating the risk of vessel strike. By ignoring this critical factor, true harm to whales would never be accurately assessed, thus allowing operators to avoid having to take legally required steps to ensure against species harm beyond an acceptable level.
The court’s order both invalidates and sends back the 2020 Biological Opinion to the agency for further analysis and correction. The court held that vacating the Opinion is the only permissible remedy given the BiOPs significant flaws. Weighing the potential disruption that invalidating the Opinion would have on permitted oil and gas activities, the court set December 20, 2024 as the cancellation date, allowing the agency several additional months to correct the BiOP’s flaws that it voluntarily began to revise back in 2022 and had projected it could complete by the end of this year.
Sierra Club senior attorney Devorah Ancel led the legal efforts for the organization, which was also represented by Earthjustice. Sierra Club was joined in this lawsuit by partner organizations Center for Biological Diversity, Earthjustice, Friends of the Earth, and Turtle Island Restoration Network.