The United States District Court for the District of Maryland has tossed a flawed environmental assessment that grossly underestimated harms to endangered and threatened marine species from oil and gas drilling and exploration in the Gulf of Mexico.  

The National Marine Fisheries Service (NMFS) prepared the assessment known as a biological opinion—BiOp for short— in 2020 under the Endangered Species Act (ESA). NMFS is a federal agency within the National Oceanic and Atmospheric Administration (NOAA). 

The biological opinion is required to ensure that drilling and exploration for fossil fuels in the Gulf does not jeopardize endangered and threatened species, and is a prerequisite for oil and gas drilling permits auctioned by the U.S. Department of the Interior. 

That same year, Earthjustice, a national nonprofit, filed a suit challenging the biological opinion on behalf of Sierra Club, the Center for Biological Diversity, Friends of the Earth and the Turtle Island Restoration Network. The American Petroleum Institute, Chevron and several other groups representing the oil and gas industry intervened as defendants in the case. 

The environmental groups argued the biological opinion underestimated the potential for future oil spills in the Gulf of Mexico and did not require sufficient safeguards for imperiled whales, sea turtles and other endangered and threatened marine species from industrial offshore drilling operations.

The Gulf of Mexico is home to a range of threatened marine species protected under the ESA, including the endangered Rice’s whale, which exists nowhere else on the planet. 

It also caters to much of the nation’s oil and gas extraction under federal waters known as the Outer Continental Shelf (OCS). This includes a region known as the Gulf OCS that experiences a high volume of ship traffic to production platforms, tens of thousands of active wells and thousands of miles of underwater pipelines. 

In its Aug. 19 ruling, the district court agreed with the environmental groups that the biological opinion violated the law in multiple ways. Among other deficiencies, it found the opinion wrongly assumed that a catastrophic oil spill like the 2010 BP Deepwater Horizon will not occur despite NMFS’ own finding that such a spill can be expected. 

The 2010 Deepwater Horizon 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,” the ruling states. The catastrophic event contaminated more than 43,000 square miles of surface waters and more than 1,300 miles of shoreline, and killed or seriously harmed more than 100,000 individual species listed as threatened or endangered.

“NMFS unlawfully deferred to [the Bureau of Ocean Energy Management’s] conclusion that an oil spill larger than one million barrels was unlikely to occur, rather than make an independent determination of its own,” the ruling said. 

The ruling further said the “NMFS knew there were significant reasons not to defer to BOEM” because in its 2007 opinion prepared for a separate proposed drilling action, the Service estimated that an “extremely large oil spill would occur about every 40 years.” 

“To this day, the affected species and habitats have yet to recover” the court said. 

Also, contrary to the evidence, the ruling said that the 2020 biological opinion assumed Gulf wildlife populations were unaffected by the BP spill and failed to protect the Rice’s whale—one of the world’s rarest whales—from oil and gas activity. And it lacked legally required mechanisms to monitor harm to species.

The Rice’s whale lost an estimated 20 percent of its population as a result of the Deepwater Horizon disaster. Fewer than 100 of these whales, the only large whale species that lives year-round in North American waters, exist. 

The primary cause of the whales’ current plight is oil and gas development. Pressure by the oil industry for the U.S. to allow drilling deeper and farther from the coastline makes the chances of a catastrophic spill worse, the advocacy groups said. 

Rice’s whales are especially at risk of ship strikes because they bask close to the surface, and deafening underwater blasting from fossil fuel exploration’s seismic air guns interferes with the sonar that the whales and other marine creatures use to communicate, care for their young and find mates.

The court declared the 2020 BiOp unlawful and ordered NFMS to produce a new biological opinion by December 2024.

“The new opinion should come along with more protections for the Gulf’s threatened and endangered species that are already struggling to survive in the face of an onslaught of threats, including existing oil and gas activity, climate change and others,” said Kristen Monsell, oceans program litigation director for the Center for Biological Diversity. 

She said that despite clear legal obligations, NMFS and the Interior Department have continually fallen down on the job when it comes to protecting Gulf wildlife from oil and gas activity. “That’s why we’re continually having to turn to the courts. Hopefully they’ll finally get the message that they can’t keep bowing to the oil and gas industry at the expense of endangered wildlife.” 

The federal government has a legal obligation to protect struggling wildlife like the Rice’s whale and Kemp’s ridley sea turtles, not greenlight their demise, Monsell said. 

“Hopefully they’ll finally get the message that they can’t keep bowing to the oil and gas industry at the expense of endangered wildlife.” 

In a brief statement, Katherine Silverstein, director of public affairs for NOAA Fisheries, said: “NOAA is aware of the court’s ruling and we are reviewing the decision.” 

“The court’s ruling affirms that the government cannot continue to turn a blind eye to the widespread, persistent harms that offshore oil and gas development inflicts on wildlife,” said Chris Eaton, senior attorney with Earthjustice’s Oceans Program. “This decision means the Fisheries Service must comply with the law to put in place meaningful safeguards for the Gulf’s rarest marine species.”

Devorah Ancel, senior attorney for the Sierra Club, said the court’s ruling requires NMFS to fix its flawed analysis of the effects of offshore fossil fuel development on species. “Now the agency has a chance to get the biological opinion right and properly evaluate the devastating impact offshore drilling and exploration has on the Gulf’s protected endangered and threatened marine species.”

The Interior Department has held four offshore oil and gas lease sales in federal waters in the Gulf of Mexico since the 2020 biological opinion. Those sales resulted in the leasing of more than 1 million acres of the Gulf to oil companies in addition to the thousands of drilling permits approved in those leased acres since the BiOp was issued. The next offshore oil and gas lease sale in the Gulf is scheduled for 2025. 

A flawed biological opinion can deliver a stunning blow to Gulf species. In addition to the whale deaths, EarthJustice estimates drillers could kill about 13,000 rare sea turtles every year and harm tens of thousands more with underwater air gun blasting, ship strikes and other threats. 

An additional 21,500 sea turtles would be killed or harmed by oil spills, the opinion predicted. Authorized oil and gas activities could also kill or harm dozens of imperiled sperm whales, giant manta rays, Gulf sturgeon and oceanic whitetip sharks.