The state of Louisiana, Chevron Corp., and the American Petroleum Institute sued the Biden administration Aug. 24 over last-minute restrictions imposed on upcoming Lease Sale 261 for Gulf of Mexico oil and gas exploration.
The restrictions, stemming from a deal struck between the administration and environmental activists in another court case, will block new exploration in highly prospective areas stretching across the Gulf and impose operational restrictions for oil and gas industry ships passing through those areas.
Word of the plan first emerged in July from court documents on the deal (OGJ Online, July 25, 2023). The Interior Department, through the Bureau of Ocean Energy Management (BOEM), formalized the restrictions in an Aug. 21 notice to lessees and an Aug. 23 final notice of sale.
“These last-minute changes are unlawful several times over,” the joint lawsuit charges. The new stipulation and acreage withdrawal “contravene the letter and the spirit of Congress’ command in the Inflation Reduction Act (IRA), which explicitly directed BOEM to conduct Lease Sale 261 in accordance with BOEM’s previously adopted Five-Year Plan for oil and gas leasing—not to introduce substantial new conditions and complications, let alone withdraw millions of acres at the last minute.”
The Five-Year Plan is authorized by the Outer Continental Shelf Lands Act (OCSLA). The challenged new provisions “contravene OCSLA’s procedural requirements and implementing regulations,” the lawsuit says.
“And they contravene the Administrative Procedure Act (APA), as they are a wholly arbitrary and capricious departure from BOEM’s prior position without adequate explanation for the change, and otherwise exceed BOEM’s statutory and regulatory authority,” it continues.
The plaintiffs asked the court to vacate the challenged restrictions and allow the sale to go ahead as scheduled for Sept. 27, with a bid deadline of 10 a.m. Central Time Sept. 26.
The case, naming the Interior Secretary as lead defendant, is Louisiana v. Deb Haaland, in the US District Court for the Western District of Louisiana.
Rice’s whales in the middle
Lease sales typically come with a variety of restrictions known well in advance. In this case, the new additional restrictions are supposed to protect Rice’s whales, an endangered species only known to live in the northeastern Gulf of Mexico in an area where no oil and gas leasing occurs.
The new restrictions are based not on whale sightings but on one recent study, using passive acoustic data, that concluded Rice’s whales occur in at least part of an expanded area. The expanded area crosses the Gulf from the northeastern protected area to the Mexican border, along a band with water depths of 100-400 m, as delineated on isobath maps. That band, plus an extra 10 km around it, is where lease blocks have been withdrawn and new ship speed restrictions would apply.
The lawsuit notes that BOEM had reviewed the July 2022 study concerning that whales and had determined that even taking that study into account, “not enough information is available at this time to confirm [the Rice’s whale] distribution” outside the core area in the northeast.
In July of this year, the administration negotiated its deal with environmental plaintiffs to greatly expanded the protections “even though BOEM determined just a few months earlier that there was no basis to impose any additional protections for the Rice’s whale,” the lawsuit says.
By imposing new restrictions, the Biden administration “has announced a ‘lease sale in name only’ that removes approximately 6 million acres in the Gulf of Mexico from the sale and adds new and unjustified restrictions on oil and natural gas vessels operating in this area, ignoring all other vessel traffic,” said Ryan Meyers, general counsel of the American Petroleum Institute, in an announcement of the joint lawsuit.