U.S. Senate Commerce Committee Ranking Member Ted Cruz (R-Texas) and Energy and Natural Resources Chairman Joe Manchin (D-W.Va.) led a group of senators in urging the National Oceanic and Atmospheric Administration (NOAA) and the National Marine Fisheries Service (NMFS) to withdraw a proposed rule designating more than 28,270 square miles of the Gulf of Mexico, an area larger than West Virginia, as a “critical habitat” for the newly discovered Rice’s whale – a clear attempt to shut down oil and gas operations in the area over a single sighting of a whale in 2017. In a letter to NOAA and NMFS, the senators argue that the proposed rule lacks sufficient evidence, relies on an incomplete study, and vastly underestimates the economic and national security impacts of such a designation.
In their letter to NOAA and to NMFS, the senators wrote:
“The proposed rule as written fails to comply with important elements of the Endangered Species Act (ESA) and would jeopardize domestic energy production, national security, and other important interests.”
“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.”
“For one, the proposed rule claims, without adequate evidence, ‘that at the time of listing Rice’s whales occupied the Gulf of Mexico.’ NFMS claims this based on only a single sighting of a Rice’s whale off the central Texas coast in 2017 and de minimis possible acoustic detections in the western and northern Gulf of Mexico. 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. Instead, the rule would designate more than 28,270 square miles of the Gulf of Mexico as a critical habitat, an area larger than West Virginia.”
“NMFS inappropriately cites an unpublished, still in peer-review study for the modeling that serves as the basis for including vast suitable areas of habitat of the Rice’s whale outside of the smaller core distribution area.”
“The Central and Western Gulf of Mexico serves as an energy hub for the nation. Federal offshore oil production accounts for 15 percent of total U.S. crude oil production. Together, there are over 345,00012 workers servicing the offshore energy industry at any single moment in time. These businesses operate on a continuous 24 hour, 7 days a week rotation. To illustrate the potential costs of a critical habitat designation, on April 7, 2023, NMFS published a ‘Petition to Establish a Vessel Speed Restriction and Other Vessel-Related Measures to Protect Rice’s Whales.’ On July 21, 2023, in litigation between NMFS and the Sierra Club and others, attorneys representing NMFS filed a stipulated agreement for Rice’s whale protections through the not-yet determined Rice’s whale critical habitat area. These stipulations included removing significant acreage from offshore oil and gas Lease Sale 261, placing a mandatory 10-knot speed limit for oil and gas related vessels, and forbidding travel through the area at night or in other low visibility conditions. Yet the proposed rule for designation of critical habitat estimates consultations under the ESA will only cost the oil and gas industry $8,100 per year.”
“The proposed rule may also jeopardize the nation’s military readiness and national security by imposing additional restrictions on training activities at the Eglin Gulf Test and Training Range (‘Eglin Gulf Range’). The U.S. Air Force uses the Eglin Gulf Range to train fighter pilots, maintain operational readiness, and test other military capabilities. NMFS’s proposed critical habitat area significantly overlaps with the test range of the Eglin Gulf Range, potentially placing restrictions on the Air Force’s use of the area for that purpose and hurting military readiness. Again, NMFS largely disregards this potential impact, estimating a cost to the military of $5,500 per year.”
The senators concluded by reminding NMFS that if it insists on moving forward with a critical habitat designation, then the proposed rule must comply with the Endangered Species Act, be based on the best available science, designate a reduced critical habitat area within the total occupied area, and contain proper analysis of the economic costs and national security implications.
Joining Sens. Cruz and Manchin in urging NOAA to withdraw the proposed rule include: Committee on Armed Services Ranking Member Roger Wicker (R-Miss.), Committee on Energy and Natural Resources Ranking Member John Barrasso (R-Wyo.), Committee on Environment and Public Works Ranking Member Shelley Moore Capito (R-W.Va.), Committee on Health, Education, Labor and Pensions Ranking Member Bill Cassidy (R-La.), Committee on Foreign Relations Ranking Member Jim Risch (R-Idaho), Committee on Finance Ranking Member Mike Crapo (R-Idaho), and Sens. John Kennedy (R-La.), Tommy Tuberville (R-Ala.), Mike Lee (R-Utah), Cynthia Lummis (R-Wyo.), Pete Ricketts (R-Neb.), Cindy Hyde-Smith (R-Miss.), Katie Boyd Britt (R-Ala.), and Rick Scott (R-Fl.).
To read the full text of the letter, click HERE.
- In July, the Biden administration entered into a closed-door de facto settlement agreement with the Sierra Club, Center for Biological Diversity, Friends of the Earth, and Turtle Island Restoration Network. As part of that agreement, the administration voluntarily removed six million acres in the Gulf of Mexico from offshore oil and gas leasing as well as imposed a 10-knot speed limit and restricted nighttime transit for certain oil and gas vessels, significantly disrupting companies’ ability to explore for and produce oil and gas under the basis of protecting the Rice’s whale. However, previous analysis performed by NOAA has stated that additional mitigations for the Rice’s whale were not warranted and federal statutes and regulations require much more evidence and opportunity for public comment before such a sweeping decision could be implemented.
- In September, Sen. Cruz and his colleagues filed an amicus briefasserting that the settlement agreement undermined the faithful execution of the laws, since the lease sale was required by the Inflation Reduction Act of 2022. Subsequently, the district court ordered the administration to restore the removed acreage and other restrictions on oil and gas vessels. The Fifth Circuit issued a separate ordering moving the sale date to November 8, 2023.
- On September 29, 2023, the Biden administration announced its long-awaited 2024-2029 National Outer Continental Shelf Oil and Gas Leasing Program as required by the Outer Continental Shelf Lands Act, which called for an unprecedented few number of offshore lease sales: three over a five-year period, with no lease sales scheduled for the Atlantic and Pacific Oceans, or offshore Alaska, and no lease sales held in 2024.