After Losing Lawsuit Over Whale-Protection Rules, BOEM Delays Lease Sale

Rice's whale
A rare image of a Rice's whale in the Gulf of Mexico (NOAA)

Published Sep 26, 2023 2:58 PM by The Maritime Executive

A federal judge has ruled that the Bureau of Ocean Energy Management cannot use new whale-protection provisions when it holds its next lease sale, finding that the agency provided too little advance notice to bidders. In response, BOEM has delayed the sale while a federal appeal led by four environmental groups proceeds.

On Friday, Judge James Cain of the 5th District Court ruled in favor of plaintiffs Shell, Chevron, the American Petroleum Institute and the State of Louisiana, who sought an injunction to prohibit BOEM from implementing new rules to protect the critically-endangered Rice's whale. The Rice's whale is a relative of the Bryde's whale, and is found only in the Gulf of Mexico. It was first identified as a separate species in 2021. Estimates suggest that fewer than 50 individuals remain, and marine scientists and conservationists have petitioned the Biden administration to protect it and promote its recovery. Last year, more than 100 marine scientists called for «excluding leasing and other [oil and gas] activities from the whale's habitat,» noting that the Rice's whale may be on track to become the first large whale species to go extinct due to human activity.

In responsed, BOEM removed lease blocks in Rice's whale habitat areas from a federal lease auction scheduled for this Wednesday. It also asked offshore oil and gas operators to incorporate whale-protection measures when transiting specific water depths in a band spanning the perimeter of the entire Gulf Coast, including all areas between the 100-400 meter depth contours. This water depth range has been identified as likely habitat for the Rice's whale, given its known behavior and food sources. The proposed restrictions on OSV traffic include maintaining a 10-knot speed limit and a daylight-only policy for crossings of the 100-400 meter depth contour region, effectively stalling transits to and from platforms during half of every 24-hour period.

Political pushback and litigation against the proposal came swiftly, and the federal court's preliminary injunction followed soon after. The ruling comes in time to affect this week's planned lease auction – but in response, BOEM has delayed the proceeding indefinitely in order to give time for «a more orderly lease sale process.»

A consortium of four environmental groups have criticized Shell and Chevron for attempting to halt protections for the Rice's whale, and these organizations have been granted intervention in the case so that they can appeal the injunction on BOEM's behalf.

“The federal government, and the industry, have a fundamental legal duty to protect endangered species,” said Sierra Club senior attorney Devorah Ancel in a statement. “The oil and gas industry’s shameless quest to remove critical protections for a whale that is on the brink of extinction because of oil and gas development is quite simply, unconscionable.”

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