Court orders US regulators to better protect Rice's whales from oil, gas drilling

A US district court has sided with environmental groups and tossed aside federal regulators' biological opinion for oil and natural gas drilling in the Gulf of Mexico, saying the opinion did not do enough to protect an endangered species of whale found only there.

The decision could impact future oil and gas leases in the region, slated to take place in 2025, if the revised biological opinion by the National Marine Fisheries Service results in more protected habitat for the Rice's whale.

Environmental groups hailed the decision, issued Aug. 19 by the US District Court for the District of Maryland.

"Simply put, this biological opinion would have condemned the Gulf of Mexico Rice's whales to extinction," Joanie Steinhaus, ocean director for Turtle Island Restoration Network, said in an Aug. 20 statement. "The court did the right thing in telling the agency to do better," she said.

But oil and gas groups were disappointed and raised concerns that any delay in issuing a new biological opinion would hurt energy production and the economy.

"Any disruptions would not only impact the hundreds of thousands of energy workers in the region, but could increase energy insecurity by jeopardizing a significant amount of oil production coming from the Gulf of Mexico, nearly 15% of the US total," the American Petroleum Institute, the National Ocean Industries Association and EnerGeo Alliance, said in an Aug. 20 statement.

The US District Court for the District of Maryland vacated and remanded the Fisheries Service's 2020 biological opinion on the impact that oil and gas extraction in the Gulf of Mexico will have on protected marine life, including the Rice's whale (Sierra Club et al. v NMFS, 8:20-cv-03060).

But the court delayed the effective date of the vacatur until Dec. 20 to give the Fisheries Service time to complete a new biological opinion.

Flawed biological opinion

The court said the biological opinion was flawed because it underestimated the risk and harms of oil spills to protected species. The Fisheries Service also incorrectly assumed the population of the Rice's whale remained as large as it was before the catastrophic Deepwater Horizon oil spill, when there were only an estimated 33 to 44 Rice's whales in the world, the court said.

In addition, the Fisheries Service only proposed to mitigate two of the five stressors that were likely to jeopardize the Rice's whale, and it used an irrational approach to determine how many listed species would be taken, or killed, by vessels strikes, the court said. The biological opinion also failed to recognize oil spill take as an incidental take, the court said.

The court's decision will not have an immediate impact on oil and gas leasing because the next lease sale is not scheduled until 2025, Chris Eaton, a senior attorney with Earthjustice's oceans program, said in an email.

"That sale will have to comply with the conditions of the next biological opinion, which the Fisheries Service will issue to fix the flaws identified in the court decision," Eaton said. "We expect that opinion to include necessary and long overdue protections for the Gulf's imperiled species," he said.

The Biden administration's 2024-2029 National Outer Continental Shelf Oil and Gas Leasing Program issued in December includes the fewest oil and gas lease sales in history, with just three auctions in the Gulf of Mexico planned over the next five years.

Lease impacts

Legal disputes over the Rice's whale have impacted Gulf of Mexico lease sales in the past.

In 2023, the Biden administration reached a voluntary settlement agreement with the environmental groups involved in the case to exclude Rice's whale habitat from any lease sales and require oil and gas-related vessels to reduce speed to 10 knots when traveling through the whale's defined habitat.

The Bureau of Ocean Energy Management initially incorporated those measures in Lease Sale 261, but the oil and gas industry successfully fought to remove the protections from the sale. The legal wrangling delayed the sale from September 2023 to December 2023.

The National Oceanic and Atmospheric Administration, which houses the Fisheries Service, declined to comment on the court decision or discuss the timeline for a new biological opinion.

The Fisheries Service has started working on a revised biological opinion, but it told the court that completion has slipped to the end of 2024, if not late winter or early spring 2025.