This week, a Maryland federal district court amended its prior Biological Opinion (“BiOp”) vacatur judgment, extending the timeline for vacatur from December 20, 2024, to May 21, 2025, which averts for now a potential shutdown of Gulf of Mexico (“GOM”) oil and gas operations. The revised vacatur date aligns with the National Marine Fisheries Service’s (“NMFS”) modified (anticipated) issuance date for its replacement BiOp and corresponding Incidental Take Statement (“ITS”). If NMFS stays on track with the development of its new BiOp and ITS, the extension would prevent any lapse between effective BiOps, and the Endangered Species Act (“ESA”) coverage afforded by compliance with NMFS’s 2020 BiOp on the Federally Regulated Oil and Gas Program Activities in the GOM (the “2020 BiOp”), now in effect through mid-May, or the new BiOp, once issued. To that end, the court is also requiring NMFS provide it with status reports every 60 days, starting December 15, 2024. Without this extension, a lapse between programmatic BiOps and ESA coverage was likely to occur.
In August, the same court entered a judgment vacating the 2020 BiOp and ITS, as legally insufficient to protect endangered species like the Rice’s whale and Gulf sturgeon. As previously reported on Liskow’s Energy Blog, the court prospectively vacated the 2020 BiOp effective December 20, 2024. In response, federal defendants and oil and gas intervenors made clear through two Motions to Alter or Amend the Judgment, supported by 35 total declarations (3 governmental and 32 industry), that vacating the 2020 BiOp effective December 20th did not afford NMFS the minimum time it needed to produce a new BiOp responsive to the vacatur opinion and all issues raised during the proceedings. Failing to meet the December 20th deadline would result in disruptive consequences to both new and existing GOM oil and gas operations, including an extended permitting gap. “Based on the new information in declarations supporting the defendants’ motion,” the court ruled in favor of NMFS and the oil and gas intervenors, granted their reconsideration motions, and amended its judgment to extend the vacatur’s effective date to May 21, 2025.
If a lapse were to occur, NMFS’s most recent pleading indicates that federal offshore oil and gas operations must be shut-in prior to the expiration of the BiOp and its ITS, actions which themselves require time and permitting. It remains an open question whether operators could elect to continue operations and assume the risk of violating the ESA and being assessed with civil and criminal penalties for any incidental “takes” of protected species during continued operations, as well as exposure to ESA citizen suits (which can be brought by private parties like environmental groups against companies or governmental agencies to enforce the ESA). The incidental take issue also extends to an operator’s or their authorized contractor’s transportation of personnel, materials, and equipment from shore to the project site. Additionally, the Bureau of Safety and Environmental Enforcement (“BSEE”) and the Bureau of Ocean Energy Management (“BOEM”) would be required to conduct individual ESA § 7 consultations for all new permits and approvals (and possibly even some or all existing permits and approvals which incorporate the terms of the BiOp). BOEM Deputy Director Walter Cruickshank attested that reverting to a “case-by-case consultation” approach “would create an unworkable situation for the Bureaus” “[d]ue to the sheer number of approval requests the Bureaus review in a given year,” with BOEM receiving “hundreds of requests” annually, and BSEE in the “thousands.” Permitting delays would cost the industry time and money and would implicate not only the exploration and development stages of project development, but also decommissioning.
Contact Liskow attorneys Jana Grauberger, Greg Johnson, and Kyrie Buffa for more information on this topic and visit the Federal Offshore Regulatory and Environmental Compliance and Enforcement Defense practice pages on our website.
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