Tag: ESA

“God Squad” Exempts Oil and Gas Drilling in the Gulf of Mexico from the Endangered Species Act

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On March 31, 2026, the Endangered Species Committee (informally nicknamed the “God Squad” for its power to determine species’ future) voted unanimously to grant an exemption for certain oil and gas drilling activities in the Gulf of Mexico from the Endangered Species Act (ESA). (91 Fed.Reg. 16966 (Apr. 3, 2026).) In its nearly 50-year existence, this is the fourth time the Committee has convened, the third time it has issued an exemption, and, reportedly, the first time it has issued one on “national security” grounds.

Amid disruptions in global oil supply caused by the geopolitical tensions involving Iran, Defense Secretary Hegseth requested that the Secretary of the Interior convene the Committee based on Hegseth’s determination that the energy industry is under threat from ongoing litigation challenging oil and gas drilling in the Gulf, and an exemption is necessary “for reasons of national security.” (16 U.S.C. § 1536(j); see Declaration from Douglas Burgum, Secretary of the Interior.)

Pursuant to the exemption, certain oil and gas drilling activities in the Gulf are exempt from ESA section 7 consultation requirements for the covered activity, and any incidental taking of a listed species resulting from such activities will not be considered a prohibited “take” in violation of the ESA. (16 U.S.C. § 1536(o)(1).)

The Gulf of Mexico—the site of the 2010 BP Deepwater Horizon oil spill disaster—produces nearly 2 million barrels of oil each day and accounts for approximately 15% of crude oil pumped annually in the U.S. The Trump administration recently approved BP’s new ultra-deepwater drilling project in the Gulf, following a 2025 National Marine Fisheries Service Biological Opinion determining that the activity was likely to harm several species.

Environmental groups opposing the exemption warn that it will accelerate the extinction of several threatened and endangered species—including the rare Rice’s whale. Only around 50 Rice’s whales still exist in the world—all of which are found exclusively in the Gulf of Mexico. The oil and gas drilling exemption will streamline approvals for oil and gas projects in the Gulf and limit environmental advocates’ ability to litigate against such projects.

—Veronika S. Morrison

NINTH CIRCUIT HOLDS EPA VIOLATED ENDANGERED SPECIES ACT IN FAILING TO CONSULT OVER CADMIUM WATER QUALITY RECOMMENDATION

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In Center for Biological Diversity v. United States Environmental Protection Agency (9th Cir., Mar. 3, 2026, No. 23-2946) 2026 WL 587981, the Ninth Circuit held that the Environmental Protection Agency (EPA) violated section 7 of the Endangered Species Act (ESA) by failing to consult with the Fish and Wildlife Service or the National Marine Fisheries Service (together, the Services) before promulgating its Clean Water Act (CWA) section 304(a) water quality criteria recommendation for cadmium. The court also affirmed that the Center for Biological Diversity (CBD) had standing to challenge the EPA’s failure to consult, reinforcing precedent recognizing a relatively low threshold for establishing standing in such cases.

Key Takeaways

  • An ESA consultation may be required even for nonbinding federal guidance that predictably influences downstream regulatory decisions. The Ninth Circuit held that EPA’s CWA section 304(a) water quality recommendations constituted an “agency action” that “may affect” listed species because states frequently rely on them when establishing water quality standards.
  • Plaintiffs alleging procedural violations of ESA section 7 can often establish standing with relatively modest showings of causation and redressability. The court found CBD had standing because it was reasonably foreseeable that states would adopt EPA’s recommended criteria and that consultation could lead to more protective standards benefiting listed species.

Background

Under the CWA, states establish water quality standards for waters within their jurisdiction, while EPA publishes national recommended criteria under CWA section 304(a) reflecting the latest scientific knowledge about the effects of pollutants. Although these criteria are not binding, states often rely on them when adopting or revising their own standards, and EPA may apply them when promulgating federal standards for noncompliant states.

In 2016, EPA issued updated section 304(a) recommended water quality criteria for cadmium. EPA did not consult with the Services before issuing the recommendations. EPA took the position that consultation under ESA section 7 was required only when it later approved or disapproved individual state water quality standards under CWA section 303.

CBD filed suit challenging EPA’s failure to consult and sought to invalidate the 2016 cadmium recommendations and compel ESA consultation. The district court granted summary judgment in CBD’s favor. EPA appealed.

Appellate Decision

Standing

The Ninth Circuit first addressed EPA’s argument that CBD lacked standing. To establish Article III standing, a plaintiff must show a concrete injury that is traceable to the challenged action and likely to be redressed by a favorable court decision. The court noted that because CBD alleged a procedural ESA violation, the usual causation and redressability requirements were relaxed.

CBD’s members submitted declarations stating that they regularly observe and study ESA-listed species in waters that are potentially affected by cadmium pollution. The court held this was sufficient to establish a concrete injury because elevated cadmium concentrations could harm those species and diminish members’ ability to enjoy those activities.

The court also rejected EPA’s argument that any harm was too attenuated. Although EPA’s section 304(a) recommendations are not binding, the court found it reasonably foreseeable that states would rely on them when establishing water quality criteria. Because states frequently adopt EPA’s recommended criteria—and EPA may impose federal standards where states fail to do so—the court concluded that CBD’s alleged injuries were traceable to EPA’s recommendations.

Finally, the court held the injuries were redressable. If EPA completed ESA consultation, the process could result in more protective recommended criteria, which in turn could lead states to adopt stricter water quality standards, benefiting the listed species CBD members seek to observe and enjoy.

ESA Section 7

The Ninth Circuit held that EPA’s issuance of the 2016 section 304(a) cadmium recommendations constituted an “agency action” that triggered ESA section 7 consultation. Under the ESA, federal agencies must consult with the Services when an action “may affect” listed species or their critical habitat—a threshold the court described as relatively low.

The court concluded that EPA’s publication of the section 304(a) recommendations qualified as agency action because it is a congressionally mandated activity carried out by the agency and has meaningful regulatory effects. Although the recommendations are not binding, the EPA uses them to establish federal standards for noncompliant states and tribal waters, and states frequently rely on them when setting their own water quality criteria.

Given that widespread reliance, the court found it reasonably foreseeable that at least one state would adopt the cadmium criteria in waters inhabited by listed species. Because the recommendations, therefore, “may affect” listed species, EPA was required to consult with the Services before issuing them. Its failure to do so violated ESA section 7.

Dissent

Justice Miller dissented, concluding the case should have been dismissed for lack of Article III standing. In his view, EPA’s section 304(a) water-quality criteria are nonbinding recommendations, and any resulting harm to listed species depends on independent decisions by states about whether to adopt those criteria. Because that discretionary state action breaks the causal chain, he concluded the alleged injuries were not fairly traceable to EPA’s conduct, and therefore, the court should not have reached the ESA consultation issue.

–Adam Nir & Nina Berglund

Petition for Writ of Certiorari Submitted to the U.S. Supreme Court Contesting the Ninth Circuit’s Decision Upholding USFWS’s Biological Opinion on Delta Smelt

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Under the Endangered Species Act (ESA), if the Secretary of the Interior concludes that a federal agency action will jeopardize a species listed as threatened or endangered, then the Secretary must use the best scientific and commercial data available to identify reasonable and prudent alternatives that are economically and technologically feasible. Petitioners in State Water Contractors v. Jewell presented the U.S. Supreme Court with the following questions related to the Act’s directive: 1) Must the Secretary address in the administrative record the economic and technical feasibility of proposed “reasonable and prudent alternative,” including the effects of the proposed alternatives on third parties? 2) May the Secretary disregard the “best scientific data” on the ground that considering the data would lead to a less “conservative” result, because scientific certainty is impossible, or because the Secretary has considered a range of data in reaching a conclusion?

This case arose after the U.S. Fish and Wildlife Service (FWS) issued a Biological Opinion (BiOp) in 2005 which found that operation of the state’s two largest water projects, the State Water Project and the Central Valley Project, threatened the delta smelt, and thereby curtailed those projects’ operations. The district court found major flaws with the BiOp and ordered FWS to reconsider it, but the Ninth Circuit reversed. The appellate court held that FWS was precluded as a matter of law from considering the economic effects of its proposed restrictions on project operations on Californians. The court also excused FWS’s failure to use the best available scientific data in formulating its opinion. Petitioners argued that the Ninth Circuit’s decision exacerbated the harmful effects of California’s drought, created circuit splits, and contravened the Supreme Court’s precedents.

The BiOp, which the appellate court described as “a big bit of a mess,” concluded that unless the quality and quantity of the delta smelt habitat improved, the smelt would not recover from their downward population trend. The BiOp specified various actions as reasonable and prudent alternatives (RPAs) to the status quo, including limiting the amount of water the projects could pump for certain uses. Petitioners claimed that the amount of water sacrificed to implement the RPAs could have met the needs of over one million households for a year, or irrigated two hundred thousand acres of farmland.

District Court decision

Petitioners brought suit alleging the BiOp violated NEPA, the ESA, and the Administrative Procedure Act. The district court held the BiOp invalid. First, it found FWS had failed to establish that its RPAs met the requirements for a reasonable and prudent alternative under 50 C.F.R. section 402.02, including the requirement that the proposed restrictions be economically and technologically feasible. The court also held that the analyses supporting the specific flow prescriptions set forth in the RPA were fatally flawed and predominantly unsupported, given that 1) FWS failed to use the best available science in calculating flow rates to reduce the number of fish drawn into the pumping stations and 2) the BiOp adopted a flawed methodology to set limits on salinity in the Delta in the autumn of years categorized as above-normal or wet. The court found the agency’s decision “was arbitrary and capricious and ignored the best available science showing that a bias was present.”

Ninth Circuit decision

In a divided panel, the Ninth Circuit reversed. The majority agreed with FWS that the agency was not required to explain why its proposed RPAs met the feasibility standard set forth in the agency’s own regulations. The court also upheld FWS’s decision to use raw salvage data, concluding that normalized data was not tailored to protect the maximum absolute number of individual smelt, as the BiOp’s approach was. The court noted that although ideally FWS would have discussed its reasoning in using that data, the agency’s choice was entitled to deference. One judge sitting by designation from the Eighth Circuit dissented, arguing that because the concerns relating to the RPAs’ feasibility had been raised, FWS was required to at least address those concerns in the BiOp or in the administrative record. The dissent also argued that FWS had failed to use the best available science. The dissent also concluded that the agency’s means of determining where in the Delta the salinity reaches two parts per thousand was arbitrary and capricious, and disagreed with the majority’s decision to ignore the expert witnesses.

Argument for granting the writ

Petitioners described the issues presented as ones of “exceptional national importance.” They argued cert is warranted to resolve a circuit conflict over whether a consulting agency must consider the effects on third parties when proposing reasonable and prudent alternatives to agency action. Furthermore, petitioners noted, whether the ESA requires or precludes an agency from considering the economic impact of its proposed restrictions on agency activity on third parties is a question of recurring importance, given the fact that the federal government conducts thousands of ESA consultations every year. Petitioners argued, that, contrary to the Ninth Circuit’s interpretation, the presence of the feasibility requirement in the definition section of the regulations made the requirement more central to the agency’s obligation of reasoned explanation than it would if the requirement appeared elsewhere. By failing to consider feasibility, petitioners stated, FWS entirely failed to consider an important aspect of the problem, and therefore acted arbitrarily and capriciously. This would not mean that an RPA requirement authorizes FWS to balance the life of delta smelt against the impact of restrictions on project operations; but in choosing among possible alternatives that would avoid jeopardy, an agency would be required to consider the impact of the various effective alternatives on third parties, “in order to avoid unnecessary harm to humans in the course of protecting plants and animals.”

Ninth Circuit Issues Injunction for Oregon Logging Project

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League of Wilderness Defenders / Blue Mountains Biodiversity Project v. Connaughton (May 8, 2014) 14 C.D.O.S. 5102.

Plaintiffs League of Wilderness Defenders / Blue Mountain Biodiversity Project and the Hells Canyon Preservation Council sought to enjoin logging in the Snow Basin project area, which covers 29,000 acres of the Whitman-Wallowa National Forest in northeast Oregon, on the theory that the U.S. Fish and Wildlife Service had violated NEPA and the federal Endangered Species Act (ESA).  The district court denied the preliminary injunction, holding that plaintiffs were not likely to succeed on any of their claims and that the balance of harms did not tip sharply in their favor.  But, on May 8, 2014, the Ninth Circuit Court of Appeals reversed in part and remanded, holding that plaintiffs had satisfied the Winter v. Natural Resources Defense Council test for preliminary injunctions.

Likelihood of Success on the Merits

The first prong of the preliminary injunction test asks whether there is a likelihood of success on the merits.  The Ninth Circuit found that plaintiffs were likely to succeed on the merits of one of their claims. The project’s Environmental Impact Statement (EIS) had reviewed the logging project’s potential environmental impacts on elk and their habitat, assuming that the US Forest Service’s Travel Management Plan, which regulated off-road motorized travel and reduced the number of roads within the forest, would be in place.  The plan, however, was subsequently withdrawn.  The court found that plaintiffs would likely prevail on their claim that the Forest Service must prepare a supplemental EIS to analyze the project’s impact on elk independent of the plan.  An accurate analysis based on up-to-date information, the court said, was key to informed public participation and proper functioning of NEPA.

Plaintiffs did not successfully show that they would be likely to prevail on their second claim that 130 acres of the project area warranted a cumulative impacts analysis.  The Ninth Circuit found that the Forest Service’s actions in that section were speculative and the environmental effects inchoate.  Nor did plaintiffs show any likelihood of success on their claim that the EIR should have analyzed the cumulative effects of stream temperatures on fish in the project region.  The court noted that the project would not impact stream temperatures, therefore any thermal stress on the fish was part of the project’s environmental baseline.  The court also rejected plaintiffs’ argument that the EIS’s reliance on aged studies was arbitrary and capricious, since no reliable evidence showed that the results of those studies were incorrect or that the status of bull trout in the project area had changed over time. Finally, the court upheld the agencies’ determination that bull trout were likely extirpated from the project area, finding that the agencies had conducted a reasonable reading of ambiguous evidence.

Likelihood of Irreparable Harm

The second prong of the preliminary injunction tests looks to the likelihood of irreparable harm absent issuance of the injunction.  The court noted that environmental harms can seldom be remedied by money damages and are often permanent or irreparable.  The logging of mature trees in particular cannot be remedied easily, if at all, as neither the planting of new seedlings nor the payment of money damages can fully repair such harm.  The court noted that it had upheld or granted injunctions in cases involving only smaller trees and in areas that had previously been logged.  There was sufficient likelihood of irreparable harm here, therefore, to support a preliminary injunction.

Balance of Equities

Having determined there was a likelihood of success on the merits and a likelihood of irreparable harm, the court then looked to whether the balance of equities tipped in plaintiffs’ favor.  The court took into account both economic and environmental interests, but concluded that the balance tipped in favor of the environmental harms since those would be permanent, whereas the economic setbacks would only be temporary.  The economic harm of the preliminary injunction would be the value of moving jobs and tax dollars to a future year — a harm the court considered “marginal.”

Interest to the Public

The final prong in the test for a preliminary injunction is whether the injunction is in the public interest.  The Forest Service argued that the public interest would be harmed by a preliminary injunction because the risk of local forest fires and insect infestation would not be reduced unless the logging occured as planned.  The court, however, cited evidence that fire suppression was expected to continue and be highly successful if no action were taken, with the possibility of periodic insect outbreaks.  Without evidence of an imminent threat, the agency could not say that the inability to mitigate such risks for a temporary period outweighed the public’s interest in maintaining elk habitat and mature trees in the forest.  The public’s economic interest, the court added, would not be completely foregone but merely delayed while the injunction was in place.

The Ninth Circuit remanded the case to the district court to issue the preliminary injunction.  The court expressly declined to comment on the appropriate scope of that injunction.

USFWS Extends Eagle Take Permits to 30 Years

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The U.S. Fish and Wildlife Service extended the maximum term for programmatic “take” permits under the Bald and Golden Eagle Protection Act to 30 years. This means that renewable energy project developers – particularly wind project developers – can apply for permits that authorize recurring “take” (i.e., disturbance or killing) of eagles that is unavoidable even with mitigation. The rule eclipses the five-year limit on programmatic take permits instituted in 2009.

The act prohibits the “take” of bald and golden eagles, their nests, or eggs, unless allowed by permit; specifically, one cannot “pursue, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb” the eagles without permission. Wind energy projects can result in accidental takes when eagles fly into the windmill blades. While most project developers implement measures to direct eagles away from the blades, such as by attracting the birds to reflective material above the blades and locating the projects in less-populated zones, some takes are unavoidable even with such mitigation.

Until now, many developers opted not to apply for programmatic take permits, given the inefficiency of the permit’s five-year duration compared to the decades-long timeframe of renewable energy project operations. Instead, developers would either apply for standard permits, which authorize individual takes, or not apply for any permits. The new regulations do not change the fact that project developers are not legally required to apply for take permits before proceeding with their projects. The downside to this approach, however, is that a developer faces civil and criminal penalties for unpermitted takes done “knowingly” or with “wanton disregard.”

Although the permits can now extend up to 30 years, the length of each permit will depend on the characteristics of the projects, such as the project’s duration and the projected impacts to eagles. Additionally, permits issued for longer than a five-year period will undergo evaluations every five years to assess fatality rates, conservation and mitigation effectiveness, and eagle population levels. Applicants for these longer permits are also required to commit to adaptive management, which involves system monitoring with the goal of continually understanding and improving a project’s effect on eagles.

The issuance of a take permit is a federal action requiring compliance with the National Environmental Policy Act, meaning applicants must prepare an environmental assessment or an environmental impact statement in order to obtain a permit. The rule went into effect on January 8, 2014.