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Lawsuits fault analyses of Gulf oil exploration impacts on protected species

By: Kristina Alexander / Published: Aug 05, 2021

A lawsuit filed July 22, 2021, claims that a permit to allow some marine mammals to be harmed by seismic testing for oil and gas development in the Gulf of Mexico violates federal law. It is one of two recently filed lawsuits challenging permits related to oil and gas development in the Gulf of Mexico.

According to the July 22 suit filed in a Maryland federal court by the Natural Resources Defense Council (NRDC) and other environmental organizations, the National Marine Fisheries Service (NOAA Fisheries) should not have authorized incidental harm to marine mammals, such as dolphins and whales, by companies conducting geophysical (seismic) testing for oil and gas exploration.

The incidental take authorization was issued under the Marine Mammal Protection Act (MMPA) (16 U.S.C. § 1371(a)(5)(A)) which allows parties to “take” small numbers of marine mammals incidental to a legal purpose. The term “take” means harassing (disrupting feeding or breeding), hunting, capturing, collecting or killing. Incidental take is when the harm occurs unintentionally as part of a lawful activity. At present, there are two other MMPA incidental take authorizations related to oil production activities in waters off Alaska.

Many species are protected under the Endangered Species Act 

There are 28 species of marine mammals in the Gulf, including whales, dolphins and manatees. Many of these species are also protected under the Endangered Species Act (ESA), including seven whale species. Most notable among those is the Bryde’s whale. Recent studies suggest the Gulf population of the Bryde’s whale is actually a distinct species called Rice’s whale and that there may be fewer than 50 left. According to NOAA Fisheries, “underwater noise pollution can interrupt Bryde’s whales’ normal behavior by hindering their ability to use sound, causing a disruption of their ability to communicate, choose mates, find food, avoid predators, and navigate.”

Byrde's whale (image by NOAA Fisheries)
Byrde's whale (image by NOAA Fisheries)

When doing seismic testing, oil companies shoot soundwaves into the ocean floor. The soundwaves indicate any obstacles to erecting an oil rig, including archeological sites. NOAA Fisheries says the testing will occur for 24 hours a day when needed. NRDC claims that the noise levels can reach 250 dB. To give an idea of what that means, a gunshot heard 100 feet away is 140 dB. And, of course, noise travels differently in water. According to NRDC, the noise levels in the Gulf of Mexico “are among the highest measured anywhere in the world.” The official notice for the 5-year MMPA permit for the Gulf states that the amount of seismic testing, including types and locations, is not known, but that the impacts on the protected animals cannot exceed certain levels.

NOAA Fisheries issues biological opinion

A separate lawsuit brought by other environmental groups was filed in November 2020 in the same Maryland court. It claims that the analysis under the ESA is legally flawed. The ESA prohibits harming listed species which, in the Gulf of Mexico, includes the endangered Bryde’s whale, Kemp’s ridley sea turtle and smalltooth sawfish, among others. As required under the ESA, NOAA Fisheries issued a biological opinion (BiOp) in March 2020 regarding whether oil and gas exploration and development planned for the next 50 years would jeopardize the continued existence of those species.

The 2020 BiOp found that oil and gas production was “likely to adversely affect" sperm whales, Bryde’s whales, oceanic whitetip sharks, giant manta rays, Gulf sturgeon, and Green, Kemp’s ridley, hawksbill, leatherback and loggerhead sea turtles. The actions likely to adversely affect those species include seismic testing, noise from production, vessel strikes, oil spills, and discharge of marine debris. For sea turtles, the list of harms also includes entrapment in moon pools, which are features on drilling rigs to allow equipment to be lowered into the water.

It seems the Bryde’s whale would bear the most impact. The number of Bryde’s whales in the Gulf is unknown but low. According to NOAA Fisheries, a 2016 study identified 33 Bryde’s whales. When issuing the BiOp, NOAA relied on a survey that ended in 2009 which found 40 whales. NOAA Fisheries acknowledged that the study may no longer be accurate as whales “are thought to have recently experienced a decline” due to the 2010 oil spill. NOAA Fisheries estimated that 17 whales could be killed by vessel strikes during the 50 years of planned oil production, although it thought the actual number would be lower as much of the production would be outside of the whale’s known area.

A so-called jeopardy finding was issued for the Bryde’s whale as part of the 2020 BiOp. A jeopardy finding is based on the ESA language in 16 U.S.C.§ 1536(a)(2) stating that federal agencies shall ensure an action (such as permitting oil and gas exploration and development) “is not likely to jeopardize the continued existence of any endangered species or threatened species.” It means NOAA Fisheries found that the planned oil and gas development could cause the whale’s extinction. Such a determination is rare. In making the finding, the agency did not count certain vessel strike hazards because they would occur “outside of the Bryde’s whale area,” but it included all harm from noise. NOAA Fisheries concluded:

…[O]ver the course of the 50-year proposed action, the entire small, isolated [sic] of Gulf of Mexico Bryde’s whales is expected to experience a reduction in fitness from combined stressors resulting from the proposed action.… Given these wide-ranging, combined multiple effects to the small and likely declining population of this species, we find that the proposed action is likely to jeopardize the continued existence of the Gulf of Mexico Bryde’s whale.

When NOAA Fisheries makes a jeopardy determination, the ESA requires the agency to develop and issue reasonable and prudent alternatives (RPAs) to the proposed action to minimize impacts to protected species. NOAA Fisheries issued one RPA to reduce vessel strikes, suggesting slower vessel speeds, no travel at night and use of an observer. No alternatives to the sound impacts were proposed despite finding that the whales could experience 12 injury-causing exposures a year for 50 years and also experience 451 sound impacts per year that would adversely affect their behavior.

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