More than 10 years after the Deepwater Horizon drilling rig explosion on the Gulf of Mexico, conservation groups continue to sound the alarm regarding its lasting effects.[i]
The BP-operated rig spilled an estimated 4.9 million barrels of oil, killing marine life and damaging the Gulf coast from Louisiana to Florida.[ii] A complaint filed on October 21 by conservation groups alleges that the federal government has violated the Endangered Species Act (ESA) and Administrative Procedure Act (APA).[iii] The National Marine Fisheries Service (NMFS), a federal agency tasked with protecting marine resources, is accused of issuing “an arbitrary and capricious programmatic biological opinion governing federally authorized oil and gas activities.”[iv]
The biological opinion itself was completed after a different federal lawsuit settlement required the federal government to complete new assessments of its oil and gas leasing and development program in the Gulf.[v] Prior to the new opinion, the government had been relying on outdated 2007 investigations.[vi]
Groups Allege Government Ignored 2010 Oil Spill Impacts on Marine Wildlife and Danger of Future Disasters
The Trump administration has sought to change the ESA in a way environmental groups say weaken the federal government’s ability to prevent extinctions, including attempts to narrow the definition of protected habitats.[vii]
As of 2018, BP paid around $63.4 billion, which included legal fees and clean-up costs encompassing marine life mitigation measures.[viii] The 2020 complaint alleges that despite massive costs and lasting damage, the new biological report doesn’t include Deepwater Horizon damage and mitigation.[ix] As federal oil and gas leasing continues in the region, the government allowed a 10 year delay in issuing the biological opinion.
The opinion fails to account for “post-Deepwater Horizon population or habitat changes when assessing the effects of the program on ESA-listed species and habitats,” according to the complaint.[x] Groups emphasize continued threats to endangered Bryde’s whales, sea turtles, and coral species in the region.[xi] The Bryde’s whale population in particular has fallen below 50.[xii] The complaint seeks declaratory and injunctive relief, requesting a “sufficiently protective biological opinion” be completed within six months.[xiii]
[i] Morgan Conley, Groups Say Gulf Of Mexico Analysis Ignored Deepwater Spill, Law360, (Oct. 21, 2020), https://www.law360.com/environmental/articles/1321657/groups-say-gulf-of-mexico-analysis-ignored-deepwater-spill?nl_pk=dcab58a6-2235-4173-be1d-4ca85d6e9f8e&utm_source=newsletter&utm_medium=email&utm_campaign=environmental
[ii] On Scene Coordinator Report Deepwater Horizon Oil Spill, (Sept. 2011), https://homeport.uscg.mil/Lists/Content/Attachments/119/DeepwaterHorizonReport%20-31Aug2011%20-CD_2.pdf
[iii] Complaint, Sierra Club et al. v. National Marine Fisheries Service et al., No. 8:20-cv-03060, (D.Md. Oct. 21, 2020), https://s3-us-west-2.amazonaws.com/s3-wagtail.biolgicaldiversity.org/documents/1_Complaint_for_Declaratory_and_Injunctive_Relief_10.21.20.pdf
[iv] Id. at 2.
[vi] Id. at 5.
[vii] Press Release, The Natural Resources Defense Council (NRDC), Trump Administration Proposes Expanding Extinction Plan: Regulations Will Weaken Endangered Species Act and Worsen Biodiversity Crisis, (July 21, 2020), https://www.nrdc.org/media/2020/200731#:~:text=WASHINGTON%20%E2%80%93%20The%20Trump%20Administration%20announced,protecting%20imperiled%20wildlife%20from%20extinction.&text=%E2%80%9CThis%20weakening%20of%20the%20ESA,wildlife%20already%20struggling%20to%20survive
[viii] Ron Russo, BP Deepwater Horizon costs balloon to $65 billion, Reuters, (Jan. 16, 2018), https://uk.reuters.com/article/uk-bp-deepwaterhorizon/bp-deepwater-horizon-costs-balloon-to-65-billion-idUKKBN1F50O6
[ix] Id. at 3.
[x] Id. at 3; see Biological Opinion on the Federally Regulated Oil and Gas Program Activities in the Gulf of Mexico, NOAA Fisheries, (Mar. 12, 2020), https://www.fisheries.noaa.gov/resource/document/biological-opinion-federally-regulated-oil-and-gas-program-activities-gulf-mexico
[xi] Id. at 1.
[xii] Id. at 1.
[xiii] Id. at 3.