The United States District Court for the District of Maryland yesterday struck down a flawed federal agency assessment that governs how endangered and threatened marine species should be protected from Gulf of Mexico offshore oil and gas drilling.

The National Marine Fisheries Service prepared the required assessment, known as a biological opinion, under the Endangered Species Act. The opinion is required to ensure that Gulf fossil fuel exploration and drilling will not jeopardize endangered and threatened species. The biological opinion was issued in April 2020.

“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 the 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.”

Earthjustice filed suit in 2020 challenging the Gulf biological opinion on behalf of Sierra Club, the Center for Biological Diversity, Friends of the Earth, and Turtle Island Restoration Network. The groups argued the biological opinion did not adequately evaluate 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 court found the biological opinion violated the law in multiple ways. Among other flaws, the opinion wrongly assumed a catastrophic oil spill like the 2010 BP Deepwater Horizon will not occur despite the Service’s own analysis finding such a spill can be expected. It assumed Gulf wildlife populations were unaffected by the BP spill despite the evidence to the contrary. It failed to protect the Gulf of Mexico Rice’s whale — one of the world’s rarest whales — from extinction as a result of oil and gas activity. And it lacked legally required mechanisms to monitor harm to species.

The continued existence of the Gulf of Mexico Rice’s whale, in particular, was at stake in this case. The species is the only large whale species that lives year-round in North American waters. Fewer than 100 of these whales exist. The primary cause of the whales’ current plight is oil and gas development. The Gulf of Mexico Rice’s whale lost an estimated 20% of its population as a result of the BP Deepwater Horizon oil spill disaster. Pressure by the oil industry to drill deeper and farther from the coastline makes the chances of a catastrophic spill worse.

“The court’s ruling requires the National Marine Fisheries Service to fix its flawed analysis of the effects of offshore fossil fuel development on endangered whales, rare turtles, and vital Gulf of Mexico ecosystems upon which these species’ survival depends,” said Sierra Club Senior Attorney Devorah Ancel. “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. These species, including the critically endangered Rice’s whale, need protection from the daily costs and catastrophic risks associated with offshore oil drilling.”

Because the whales bask close to the surface, they are especially at risk of ship strikes. 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.

“What a relief that the court recognized the brutality of allowing thousands of endangered animals to be sacrificed to the oil and gas industry,” said Kristen Monsell, oceans legal director at the Center for Biological Diversity. “The federal government has a duty and legal obligation to protect struggling wildlife like the Gulf of Mexico Rice’s whale, not greenlight their demise. I’m looking forward to a new analysis that accounts for all threats from offshore drilling, not just the cherry-picked ones, and truly defends wildlife and the Gulf ecosystem.”

“Simply put, this biological opinion would have condemned the Gulf of Mexico Rice’s whales to extinction,” said Joanie Steinhaus, Ocean Director for Turtle Island Restoration Network. “The court did the right thing in telling the agency to do better. The recovery of these whales and other species is possible as long as we improve the conditions, and the responsibility lies in our collective actions.”

The biological opinion’s allowances for harm to Gulf species were stunning in scope. In addition to Gulf of Mexico Rice’s whale deaths, the Fisheries Service said 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 harassment. 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.

Even these staggering numbers underestimated the harm that oil and gas activities pose to the Gulf’s imperiled species. The biological opinion completely disregarded the possibility of another catastrophic oil spill like the 2010 BP Deepwater Horizon spill, which killed or seriously harmed more than 100,000 animals protected under the Endangered Species Act.

“The court’s decision is a win for the Rice’s whale and the entire Gulf of Mexico ecosystem,” said Hallie Templeton, Legal Director for Friends of the Earth.  “With fewer than 100 individuals remaining, the species’ very existence hangs in the balance. Our coalition will continue to watchdog federal officials as they rework their analysis to fully comply with federal mandates and protections for wildlife.”

What’s next

The court is allowing the current biological opinion to remain operative until December 20, 2024, to give the federal agencies time to prepare a new biological opinion that would offer the necessary protections for imperiled species.

“The Fisheries Service has an opportunity over the next four months to fix the biological opinion’s flaws and provide the Rice’s whale and other species the protections they need to survive and thrive. If the Service does its job right, the end result will be better for Gulf communities and species,” said Chris Eaton of Earthjustice.