In August of 2024, the United States District Court for the District of Maryland issued a vacatur order in response to a lawsuit brought against the National Marine Fisheries Service (NMFS) by several environmental advocacy organizations. Those plaintiffs sought an order vacating a 2020 biological opinion issued by NMFS pursuant to the Endangered Species Act of 1973 (ESA) over certain whales in the Gulf. The vacatur order was amended to take effect on May 21, 2025.
This biological opinion (2020 BiOp) was issued by the NMFS pursuant to an interagency consultation process designed to ensure that the actions of federal agencies are in accordance with the substance and purpose of the ESA.
The 2020 BiOp was comprehensive, covering “all activities associated with the OCS oil and gas program in the Gulf…” including all proposed actions associated with existing leases as well as all new leases to be issued “through approximately 2029.”
The day before the court mandated May 21, 2025, deadline, in accordance with the Court’s 2024 ruling, NMFS produced and submitted a new biological opinion—the 2025 BiOp. But later that same day, the same environmental organizations that sued NMFS in 2020 again filed suit alleging that NMFS’s new opinion failed to cure the flaws that the court had identified in the 2020 BiOp. Specifically, the Plaintiffs claim that (1) the Incidental Take Statement produced in tandem with the 2025 BiOp covers only incidental take of protected species (including the Rice’s whale) resulting from geological and physical surveys, without addressing take that could result from other factors, such as oil spills; (2) NMFS again irrationally determined in the 2025 BiOp—as it did in the 2007 and 2020 BiOps—that an oil spill of more than one million barrels “is not reasonably foreseeable over the next 45 years;” (3) the 2025 BiOp’s species jeopardy analysis failed to account for how climate change will exacerbate the effects of the proposed oil and gas activity on Gulf marine life; and (4) the 2025 BiOp’s Reasonable and Prudent Alternative (RPA) on mitigating the proposed activity’s jeopardizing effects on the Rice’s whale is irrational, based on speculation, and not supported by any reasoned analysis.
Considering the Court’s 2024 decision, the outcome of the current litigation is fairly predictable. Fortunately, in its reasoning, the Court demonstrated its aversion to vacating biological opinions without allowing sufficient time for the expert agency to cure its mistakes on remand. If the Court finds the Plaintiffs latest claims to be without merit, the 2025 BiOp will likely be upheld and remain in effect—meaning that oil and gas activity in the Gulf can carry on as long it is within the parameters specified in the opinion’s Incidental Take Statement. On the other hand, if the Court sides with the Plaintiffs—finding that the 2025 BiOp is unlawful—it will likely remand the matter to NMFS for revisions and perhaps also issue a delayed vacatur order as it did in its decision on the 2020 BiOp. In this scenario, oil and gas activity would likely be able to carry on while NMFS revises the 2025 BiOp. However, this outcome is not certain. Although the Court delayed the effective date of its vacatur order of the 2020 BiOp, this does not preclude the possibility that it could vacate the 2025 BiOp immediately if it finds that the opinion is unlawful. If that case, there will likely be significant adverse effects on oil and gas operations in the Gulf, and on the energy industry generally.