Interior Department ordered to remove whale protection measures from oil lease sale | Courthouse News Service
Thursday, November 30, 2023
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Interior Department ordered to remove whale protection measures from oil lease sale

There are likely fewer than 100 Rice’s whales left in the Gulf of Mexico, the species’ only habitat. But the federal government unlawfully changed the terms of a lease sale to protect them, a judge said.

(CN) — The Biden administration cannot include new provisions meant to safeguard endangered Rice’s whales in a Gulf of Mexico oil lease sale set for Wednesday, a federal judge ruled, agreeing with Louisiana and two major oil companies that the eleventh-hour changes are not allowed.

U.S. District Judge James Cain, a Donald Trump appointee, granted Louisiana, Chevron U.S.A. Inc., Shell Offshore Inc. and the American Petroleum Institute a preliminary injunction late Thursday, ordering the Bureau of Ocean Energy Management, or BOEM, part of the Interior Department, to conduct Lease Sale 261 based on a preliminary proposal it issued in March.

At the time, the bureau had concluded that not enough information was known about the baleen whale species’ distribution in the Gulf or seasonal movements to justify protecting them outside a “biologically important area” designated off the coast of Florida.

There are likely fewer than 100 Rice’s whales left in the Gulf, the species’ only habitat, according to the National Oceanic and Atmospheric Administration. They can grow to 41 feet long and around 30 tons.

Their core zone was already off-limits for drilling and subjected vessel operators to several restrictions, including no traveling at night or in low visibility conditions, traveling no faster than 10 knots during daylight hours and staying at least 500 meters from any whale that could be a Rice’s whale.

But the bureau decided to provide more protection for the whales in a final notice for Lease Sale 261 it issued on Aug. 23.

The agency withdrew 6 million acres from the 73 million offered in the draft proposal and extended the “Rice’s Whale Area,” in which vessels have to abide by speed limits and other restrictions, from the coast of Florida across the northern Gulf to the Mexico border with Texas.  

To justify the switch up, the feds cited a July 2022 study led by a NOAA fishery biologist that posited the species' range was larger than previously believed based on analysis of whale song recordings.

The next day, Louisiana and the other plaintiffs sued the Interior Department, its Secretary Deb Haaland, the bureau and other Interior officials in the Western District of Louisiana.

They claim the move violated the Administrative Procedure Act, the Outer Continental Shelf Lands Act and the Inflation Reduction Act, which had mandated Lease Sale 261 be carried out by Sept. 30.

In its complaint, Louisiana noted that under the Gulf of Mexico Energy Security Act the federal government must share 37.5% of its revenue from offshore Gulf oil leases with itself, Alabama, Mississippi and Texas to aid in coastal restoration projects.

Louisiana says it received $112 million from this revenue sharing in 2022 alone.

Cain agreed with the challengers that the lease sale changes would cause them irreparable injury.

He credited Louisiana’s assertion that the acreage the feds removed from the sale and additional stipulations to protect Rice’s whales could cost it $2.2 million.

He also cited an affidavit from Shell’s commercial manager stating the restriction on vessel traffic applied to an area of the northern Gulf that separates Shell’s offshore leases from onshore infrastructure that supports them.

The Shell manager said the restrictions, which barred vessel traffic at night, would be costly for the company because they would reduce the available hours it could make supply ship runs to offshore platforms, and force it to increase the number of supply ships it used.

Cain also sided with Louisiana and the other plaintiffs on their contention that the last-minute lease sale changes had deprived states and the public of the chance to examine and comment on the modifications, a review period required by the Administrative Procedure Act.

“Accordingly, the insertion of the challenged provisions in the FNOS [final notice of sale] for Lease Sale 261 was procedurally invalid,” Cain wrote in a 30-page order.

The Center for Biological Diversity, Friends of the Earth, Sierra Club, and Turtle Island Restoration Network intervened as defendants in the lawsuit.

Kristen Monsell, a senior attorney for the center, denounced Cain’s order and Shell and Chevron for suing over the lease sale changes.

“I’m heartbroken that oil executives won’t make even minor accommodations to protect a whale from going extinct," she said in a statement. "The Gulf doesn’t belong to the industry. It belongs to the people and wildlife living there, and it’s time to start saying no to harmful drilling activities."

The environmental groups filed an appeal and emergency motion to stay Cain's order with the Fifth Circuit on Friday.

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Categories / Energy, Environment, Government

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