As Energy In Depth has discussed extensively, the Biden administration has significantly reduced the number of lease sales and acreage available in the Gulf of Mexico, all under the guise of protecting the Rice’s whale. The administration’s proposal is facing significant criticism, including from bipartisan members of Congress.
On Friday, a group of sixteen senators led by Sens. Ted Cruz (R-TX) and Joe Manchin (D-WV) sent a letter to the National Marine Fisheries Service (NMFS) requesting that the agency withdraw its proposal to drastically increase the Rice’s whale’s critical habitat zone. The rule, proposed on July 24th, would unnecessarily designate more than 28,270 square miles of the GOM as critical habitat, significantly impeding offshore oil and natural gas development.
In the letter, the senators noted that the current proposal violates the Endangered Species Act (ESA) by failing to consider economic impacts, national security concerns, and comprehensive scientific studies:
“In designating any particular area as a critical habitat, NMFS is required to use the best available science to consider the economic impact, the impact on national security, and any other relevant impact. Unfortunately, NMFS failed to do so in this case, vastly underestimating the proposed rule’s economic and national security impacts. Moreover, the proposed rule denies the public the opportunity to comment on the studies used in the proposed rule’s analysis.” (emphasis added)
The economic impacts are clear – a slowdown in oil and natural gas production in the Gulf would have severe impacts on the 345,000 workers currently servicing the offshore industry. A decrease in offshore production could raise energy costs too, since the GOM produces 15 percent of America’s total crude oil annually.
Given that volatility in global oil and natural gas markets continues to rise due to global events such as the wars in Ukraine and the Middle East, along with OPEC+ production cuts and the threat of strengthened sanctions on Iranian oil exports, it’s hard to imagine a worse moment to intentionally limit America’s energy security. “
In addition to ignoring macroeconomic concerns, the proposed rule makes outlandish estimates about its local economic impacts. While the proposed critical habitat encompasses 28,270 square miles where essential oil and natural production, commercial fishing, and shipping activity take place, the NMFS estimates that costs of its proposal will only amount to $240,000 total over a ten year period. The senators rightly called this an “absurdly low assessment.”
Failure to Meet Key Requirements In The Endangered Species Act
The senators’ letter also pointed out that the NMFS failed to comply with three key elements of the ESA. Specifically, the proposal lacked rigorous evidence of Rice’s whales populating certain areas of the Gulf, relied on unsubstantiated studies, and did not fully consider potential economic impacts.
The proposed rule claims that the Rice’s whale occupies significant areas of the GOM, but fails to provide substantial evidence to back up this claim. In fact, the NMFS was only able to point to a single sighting of a Rice’s whale in 2017 and other potential acoustic detections outside of the whale’s known habitat. The senators argue that NMFS used these few data points to extend the Rice’s whale critical habitat zone much further than the Endangered Species Act permits:
“The reality is decades of surveys of the Gulf have made very few observations of Rice’s whales and only in limited geographic areas. This is both legally and scientifically insufficient to demonstrate the Rice’s whales occupied the habitat. The proposed designation also fails to meet the ESA’s requirement that a critical habitat be ‘specific areas within’ the broader geographical area occupied by the species.” (emphasis added)
In a joint statement from the IPAA, API, NOIA, and the EnerGeo Alliance, industry groups emphasized this very point:
“NMFS’s determination that the entire GOMx is “occupied” is not supported by the best available science or the record before the agency, and is contradicted by NMFS’s own statements that the Rice’s whale’s range is primarily restricted to the De Soto Canyon area of the northeastern GOMx and that Rice’s whales rely on that area for all of their life history stages.” (emphasis added)
U.S. District Court Judge James Cain also speculated that the Rice’s whale protections aren’t in line with ESA guidance. Last month, when Judge James barred the Department of Interior from limiting the amount of acreage available for leasing in the Gulf in the name of protecting the Rice’s whale, he pointed out that previous environmental impact statements from DOI had confirmed that the existing protections for the species were sufficient. Judge Cain argued that the “surprise switcheroo” from DOI appeared to be a “weaponization” of ESA to appease activists:
“The PNOS for Lease Sale 261 was issued in March 2023, soon after BOEM had publicly confirmed through its supplemental EIS that it did not believe additional measures were required to protect Rice’s whale.”
“The process followed here looks more like a weaponization of the Endangered Species Act than the collaborative, reasoned approach prescribed by the applicable laws and regulations.” (emphasis added)
To justify extreme measures to protect the Rice’s whale, the proposed rule also leans on unreliable and incomplete sources, without soliciting significant public comment. Noting that much of the data NMFS relied on has not been peer-reviewed, the senators argued that if the NMFS continues to rely on the study, it must wait for peer-review and public comment before moving forward.
Bottom line: At a time when the offshore American oil and natural gas industry is needed more than ever, the administration should not be relying on faulty data and assumptions to craft rules that negatively impact national security, the economy, and employment.
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