Case 8:20-cv-03060-PX Document 1 Filed 10/21/20 Page 1 of 40
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MARYLAND
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`No. _______________________
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`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF
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`SIERRA CLUB
`2101 Webster Street, Suite 1300
`Oakland, CA 94612,
`CENTER FOR BIOLOGICAL DIVERSITY
`378 N Main Avenue
`Tucson, AZ 85701,
`FRIENDS OF THE EARTH
`1101 15th Street, NW
`11th Floor
`Washington, DC 20005,
`and
`TURTLE ISLAND RESTORATION
`NETWORK
`9255 Sir Francis Drake Boulevard,
`Olema, CA 94950,
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`
`v.
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`NATIONAL MARINE FISHERIES SERVICE
`1315 East-West Highway
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`
`
`Silver Spring, Montgomery County, MD 20910,
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`and
`CHRIS OLIVER, in his official capacity as
`ASSISTANT ADMINISTRATOR for
`NATIONAL OCEANIC AND ATMOSPHERIC
`ADMINISTRATION
`1315 East-West Highway
`Silver Spring, Montgomery County, MD 20910,
`
`
`
`Defendants.
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`
`
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`Plaintiffs,
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`INTRODUCTION
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`1.
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`This case challenges the National Marine Fisheries Service’s (NMFS) issuance of
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`an arbitrary and capricious programmatic biological opinion governing federally authorized oil
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`and gas activities in the Gulf of Mexico, projected over 50 years, in violation of the Endangered
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`Case 8:20-cv-03060-PX Document 1 Filed 10/21/20 Page 2 of 40
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`Species Act (ESA) and Administrative Procedure Act (APA).
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`2.
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`More than two dozen species listed as either threatened or endangered under the
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`ESA inhabit the Gulf of Mexico. They include the critically imperiled Gulf of Mexico Bryde’s
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`whale, with less than 50 individuals remaining, and the Kemp’s ridley sea turtle, the most
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`endangered sea turtle in the world.
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`3.
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`The Gulf is also the epicenter of the nation’s offshore oil and gas industry, with
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`tens of thousands of active wells, thousands of production platforms, tens of thousands of miles
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`of underwater pipelines, and hundreds of thousands of vessel trips taking place annually.
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`4.
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`The oil and gas operations harm threatened and endangered species, as well as the
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`broader Gulf of Mexico ecosystem, in a variety of ways, on a daily basis. The harms sometimes
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`become catastrophic, as when the Deepwater Horizon oil drilling rig exploded in 2010. The
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`disaster killed 11 crew members and caused 4.9 million barrels (more than 200 million gallons)
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`of oil to spew underwater for 87 days, spreading throughout the Gulf of Mexico and coating
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`wildlife and ecosystems. The spill killed countless marine mammals, sea turtles, fish, birds, and
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`other wildlife. Scientists continue to discover new, long-term harms from the spill to this day.
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`5.
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`The ESA requires each federal agency, in consultation with the relevant federal
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`wildlife service, to ensure that its actions are not likely to jeopardize the continued existence of
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`any threatened or endangered species or destroy or adversely modify the critical habitat of any
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`such species. This consultation process is a central feature of the ESA’s framework for
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`protecting endangered and threatened species.
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`6.
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`The Department of the Interior (Interior) implements an oil and gas leasing and
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`development program in federal waters of the Gulf of Mexico pursuant to the Outer Continental
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`Shelf Lands Act (OCSLA). Because the program has numerous effects on threatened and
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`endangered species, Interior has engaged in ESA consultation with NMFS at various points in
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`recent decades—completing the most recent previous biological opinion in 2007.
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`7.
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`In the immediate wake of the Deepwater Horizon disaster, Interior and NMFS
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`recognized that the spill called into question the previous analyses of oil spill risks in the 2007
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`biological opinion and significantly altered the statuses of ESA-listed species and critical habitats
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`in the Gulf of Mexico. The agencies reinitiated ESA consultation later in 2010.
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`8.
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`Nearly ten years later, NMFS finally completed consultation and issued a new
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`programmatic biological opinion (the BiOp)—the subject of this suit. The BiOp, however,
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`completely fails to address the two primary reasons the agencies reinitiated consultation. NMFS
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`did not account for post-Deepwater Horizon population or habitat changes when assessing the
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`effects of the program on ESA-listed species and habitats. And the agency once again arbitrarily
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`assumed—as it did in 2007—that an extremely large oil spill will not result from Interior’s oil
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`and gas program. The BiOp is riddled with other inadequate analyses and flaws that violate the
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`ESA. For example, NMFS ignored sublethal harms from the program and the increasing effects
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`of climate change when assessing jeopardy, and failed to consider how the program will impede
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`the recovery of species (as opposed to threatening their survival). And the BiOp’s incidental
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`take statement and reasonable and prudent alternatives fail to meet what the ESA legally
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`requires.
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`9.
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`Plaintiffs therefore ask this Court to declare that the BiOp is arbitrary and
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`capricious and contrary to law, in violation of the APA and ESA, and to vacate and remand the
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`BiOp to NMFS with an order to prepare a sufficiently protective biological opinion within six
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`months.
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`JURISDICTION AND VENUE
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`10.
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`This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1333 (federal
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`question) and 5 U.S.C. § 704 (APA).
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`11.
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`Venue properly vests in this District pursuant to 28 U.S.C. § 1391(b) and (e)(i)
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`because NMFS’s headquarters are located in this District and a substantial part of the events and
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`omissions which gave rise to this action occurred in this District.
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`12.
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`This Court has authority to grant Plaintiffs’ requested relief pursuant to the APA,
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`5 U.S.C. § 706(2), and the Declaratory Judgment Act, 28 U.S.C. §§ 2201–2202.
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`PARTIES
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`Plaintiff SIERRA CLUB is a not-for-profit organization dedicated to exploring,
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`13.
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`enjoying, and protecting the wild places of the earth; to practicing and promoting the responsible
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`use of the earth’s ecosystems and resources; to educating and enlisting humanity to protect and
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`restore the quality of the natural and human environment; and to using all lawful means to carry
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`out these objectives. Sierra Club is one of the oldest and largest conservation groups in the
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`country, with about 800,000 members nationally in 67 chapters in all 50 states, the District of
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`Columbia, and Puerto Rico; including over 17,000 members in Sierra Club’s Maryland Chapter.
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`Sierra Club members use the public lands and waters throughout the Gulf of Mexico, including
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`those that would be affected by oil and gas activities, for quiet recreation, aesthetic pursuits, and
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`spiritual renewal. Sierra Club members further observe and enjoy wildlife found in the Gulf that
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`may be harmed by oil and gas activities, including threatened and endangered species such as
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`sperm whales and green sea turtles. Sierra Club brings this action for itself and as representative
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`of its members.
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`14.
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`Plaintiff CENTER FOR BIOLOGICAL DIVERSITY (the Center) is a nonprofit
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`corporation that maintains offices across the United States and in Baja California Sur, Mexico.
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`The Center advocates for the protection of threatened and endangered species and their habitats
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`through science, policy, and environmental law. The Center’s mission also includes protecting
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`air quality, water quality, and public health. The Center’s Oceans Program focuses specifically
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`on conserving marine ecosystems, and seeks to ensure that imperiled species such as marine
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`mammals, corals, and sea turtles are properly protected from destructive practices in our oceans.
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`The Oceans Program also works to protect coastal communities from the air pollution, water
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`pollution, and other impacts that result from such practices. In pursuit of this mission, the Center
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`has been actively involved in protecting the Atlantic, Gulf of Mexico, California, and Alaska
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`coasts from the harmful impacts of offshore oil and gas drilling. The Center has more than
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`81,800 members, including members who live and recreate throughout the Gulf of Mexico and
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`Atlantic coast. The Center brings this action on behalf of itself and as representative of its
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`members.
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`15.
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`Plaintiff FRIENDS OF THE EARTH is a nonprofit organization with offices in
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`Berkeley, California, and Washington, D.C. For more than 50 years, it has championed the
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`causes of a clean and sustainable environment, protection of the nation’s public lands and
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`waterways, and the exposure of political malfeasance and corporate greed. Friends of the Earth’s
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`Oceans and Vessels Program works to fight industrialization of the ocean in all its forms, and has
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`won regional, national, and international limits on air, water, and oil pollution from cruise ships,
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`cargo ships, oil tankers, ferries, and recreational watercraft. Friends of the Earth has more than
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`127,000 members, including members who live and recreate along the coastlines of the Gulf of
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`Mexico and the Atlantic seaboard. Friends of the Earth brings this action for itself and as
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`representative of its members.
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`16.
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`Plaintiff TURTLE ISLAND RESTORATION NETWORK (TIRN) is a nonprofit
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`organization based in California. TIRN has been a leading advocate for the world’s oceans and
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`marine wildlife for more than 30 years. TIRN and its members work to protect and restore
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`populations of endangered sea turtles and other vulnerable marine creatures—such as whales and
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`dolphins—as well as marine biodiversity and ecosystems throughout the Gulf of Mexico and
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`along the Atlantic Coast. TIRN has over 200,000 members and supporters, including members
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`who live and recreate along the Atlantic and Gulf coasts. TIRN brings this action for itself and
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`as representative of its members.
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`17.
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`Plaintiffs and Plaintiffs’ members and constituents regularly use, enjoy, and
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`benefit from the marine environment of the Gulf of Mexico. Plaintiffs and Plaintiffs’ members
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`and constituents also regularly use, enjoy, and benefit from the presence of healthy marine life—
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`including threatened and endangered species—within the Gulf of Mexico for recreational,
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`aesthetic, commercial, scientific, and environmental purposes, such as whale watching, scientific
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`study, boat touring, underwater diving, fishing, and photography. In addition, Plaintiffs and
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`Plaintiffs’ members and constituents regularly use, enjoy, and benefit from the presence of
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`wildlife that migrate from the Gulf of Mexico to the Chesapeake Bay and marine environments
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`along the Atlantic Coast—including ESA-listed whales and sea turtles—for recreational,
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`aesthetic, commercial, scientific, and environmental purposes, such as whale watching, scientific
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`study, boat touring, underwater diving, fishing, and photography. The ability of Plaintiffs and
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`Plaintiffs’ members to pursue these interests hinges not only on the well-being of threatened and
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`endangered species that live, migrate, feed, and breed in areas affected by oil and gas activities in
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`the Gulf, but also on the health of the marine ecosystems on which these species depend.
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`18.
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`NMFS’s failure to comply with the ESA and APA has caused and is causing
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`Plaintiffs’ members and staff procedural harms connected to their substantive conservation,
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`recreational, scientific, and aesthetic interests. Plaintiffs’ members and staff rely on NMFS to
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`comply with the requirements of the ESA to guide federal authorizations of Gulf oil and gas
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`activities so as to protect endangered and threatened species from harmful effects of those
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`activities. Interior continues to authorize Gulf oil and gas activities in reliance on the BiOp.
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`19.
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`The interests of Plaintiffs and Plaintiffs’ members have been, are being, and will
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`be adversely affected by NMFS’s violations of federal law, as described herein. These harms
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`can only be remedied if the Court orders NMFS to comply with the ESA and APA. Plaintiffs
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`have no other adequate remedy at law.
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`20.
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`Defendant NATIONAL MARINE FISHERIES SERVICE is the federal agency
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`within the U.S. Department of Commerce’s National Oceanic and Atmospheric Administration
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`with responsibility for administering and implementing the ESA with respect to marine species.
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`Specifically, NMFS has responsibility under the ESA for sea turtles (while they are in the water),
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`whales, sharks, rays, corals, and marine fish (including grouper, sawfish, and Gulf sturgeon).
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`The principal offices of NMFS and the National Oceanic and Atmospheric Administration are
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`located in Silver Spring, Montgomery County, Maryland.
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`21.
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`Defendant CHRIS OLIVER is sued in his official capacity as the Assistant
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`Administrator for National Oceanic and Atmospheric Administration’s National Marine
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`Fisheries Service (known as NMFS). The Assistant Administrator is responsible for
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`implementing and fulfilling NMFS’s duties under the ESA. The office of the Assistant
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`Administrator is located in Silver Spring, Montgomery County, Maryland.
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`STATUTORY BACKGROUND
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`I.
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`ENDANGERED SPECIES ACT
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`22.
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`Congress enacted the ESA in 1973 in response to the extinction crisis to “provide
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`a means whereby the ecosystems upon which endangered species and threatened species depend
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`may be conserved, [and] to provide a program for the conservation of such endangered species
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`and threatened species.” 16 U.S.C. § 1531(b). Congress defined “conservation” under the ESA
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`as “the use of all methods and procedures which are necessary to bring any endangered species
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`or threatened species to the point at which the measures provided pursuant to this chapter are no
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`longer necessary”; that is, when the species has recovered and no longer needs the protection of
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`the ESA. Id. § 1532(3).
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`23.
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`In broad strokes, the ESA seeks to protect and recover imperiled species and
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`populations by first listing them as threatened or endangered based on enumerated statutory
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`factors. Id. § 1533(a)(1)(A)–(E); see id. § 1532(6), (20). The Act further provides for the
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`designation of protected critical habitat for threatened and endangered species. Id.
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`§ 1533(a)(3)(A)(i).
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`24.
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`Section 7(a)(2) of the ESA requires each federal agency to “insure that any action
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`authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued
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`existence of any endangered species or threatened species or result in the destruction or adverse
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`modification of [critical] habitat of such species.” Id. § 1536(a)(2).
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`25.
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`The ESA and its implementing regulations establish an interagency consultation
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`process to assist federal agencies in complying with this duty. An agency must consult with the
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`appropriate wildlife service—the U.S. Fish and Wildlife Service or, as here, NMFS—under
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`Section 7 whenever it takes an action that “may affect” a threatened or endangered species or
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`critical habitat. Id.; 50 C.F.R. § 402.14(a). In fulfilling the requirements of Section 7, agencies
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`must “use the best scientific and commercial data available.” 16 U.S.C. § 1536(a)(2).
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`26.
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`If the agency taking the action (the action agency) concludes the action may affect
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`listed species or their critical habitats, it must initiate formal consultation with NMFS, unless the
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`action agency determines and NMFS concurs in writing that the action is “not likely to adversely
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`affect” any listed species or critical habitat. 50 C.F.R. §§ 402.13(c), 402.14(a), (b)(1).
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`27.
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`Formal consultation requires NMFS to 1) evaluate the current status and
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`environmental baseline of affected species and critical habitats, 2) assess the effects of the action
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`and cumulative effects on those species and habitats, and 3) analyze whether the effects of the
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`action, when added to the environmental baseline together with any cumulative effects, is likely
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`to jeopardize the continued existence of the species or adversely modify their critical habitats.
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`Id. § 402.14(g). At the conclusion of formal consultation, NMFS issues a biological opinion
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`assessing the effects of the action and making a formal determination regarding whether the
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`action is likely to jeopardize the continued existence of the species or adversely modify their
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`critical habitats. 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.14(e), (h).
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`28.
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`Longstanding ESA regulations define “jeopardize the continued existence of” as,
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`“to engage in an action that reasonably would be expected, directly or indirectly, to reduce
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`appreciably the likelihood of both the survival and recovery of a listed species in the wild by
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`reducing the reproduction, numbers, or distribution of that species.” 50 C.F.R. § 402.02; see also
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`Defs. of Wildlife v. U.S. Dep’t of the Interior, 931 F.3d 339, 354 (4th Cir. 2019) (confirming that
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`“the plain language” of the regulation requires the Services “to assess ‘both the survival and
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`recovery of a listed species’” (quoting 50 C.F.R. § 402.02)).
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`29.
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`These regulations also define “destruction or adverse modification of critical
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`habitat” as “a direct or indirect alteration that appreciably diminishes the value of critical habitat
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`as a whole for the conservation of a listed species.” 50 C.F.R. § 402.02.
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`30.
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`If NMFS concludes that the proposed action is likely to jeopardize a listed species
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`or result in adverse modification of its critical habitat, it must propose reasonable and prudent
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`alternatives (RPAs), if available, that will mitigate the proposed action to avoid jeopardy and
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`adverse modification of critical habitat. 16 U.S.C. § 1536(b)(3); 50 C.F.R. §§ 402.02,
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`402.14(h)(2). RPAs must 1) be capable of being implemented in a manner consistent with the
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`intended purpose of the action, 2) be within the scope and authority of agency’s jurisdiction,
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`3) be economically and technologically feasible, and 4) avoid the likelihood of jeopardizing the
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`continued existence of the species. 50 C.F.R. § 402.02.
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`31.
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`Section 9 of the ESA prohibits “take” of endangered species by any person, which
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`includes federal agencies. 16 U.S.C. § 1538(a)(1). “Take” means to “harass, harm, pursue, hunt,
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`shoot, wound, kill, trap, capture, or collect.” Id. § 1532(19).
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`32.
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`If NMFS concludes that the proposed action (or an RPA) will not jeopardize a
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`listed species or adversely modify its critical habitat, but will incidentally take members of a
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`listed species, it must include with the biological opinion an “incidental take statement” that
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`specifies the amount of take that may occur without causing jeopardy or adverse modification of
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`critical habitat, as well as the measures required to limit take. 50 C.F.R. § 402.14(i)(1). For
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`ESA-listed marine mammals, the incidental take statement must also include mitigation
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`measures to comply with section 101(a)(5) of the Marine Mammal Protection Act, which
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`requires that there be no more than a negligible impact on the species, among other restrictions.
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`Id.
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`33.
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`An incidental take statement serves as a check on the biological opinion’s
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`assumptions and conclusions, and provides for monitoring. Id. § 402.14(i)(3). The amount of
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`take set out in the incidental take statement acts as a trigger that, if exceeded, invalidates the safe
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`harbor and requires the agencies to immediately reinitiate consultation. Id. § 402.14(i)(4); see
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`Sierra Club v. U.S. Dep’t of the Interior, 899 F.3d 260, 269 (4th Cir. 2018) (stating incidental
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`take statement sets a “‘trigger’ that, when reached, results in an unacceptable level of incidental
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`take” (citation omitted)).
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`II.
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`OUTER CONTINENTAL SHELF LANDS ACT
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`34.
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`OCSLA governs the leasing, exploration, and development of oil and gas deposits
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`on the Outer Continental Shelf. 43 U.S.C. § 1331 et seq. The Outer Continental Shelf extends
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`from the outer boundary of state waters—typically three miles from shore—to the outer
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`boundary of the United States’ Exclusive Economic Zone, 200 nautical miles from shore. Id.
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`§§ 1301(a)(2), 1331(a); 48 Fed. Reg. 10,605 (Mar 14, 1983).
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`35.
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`The Bureau of Ocean Energy Management (BOEM) is the federal agency within
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`the Department of the Interior that manages these activities under OCSLA. 30 C.F.R. § 550.101.
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`The Bureau of Safety and Environmental Enforcement (BSEE), also within the Department of
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`the Interior, is the federal agency responsible for enforcing safety and environmental standards
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`for offshore oil and gas activities and approving some activities. Id. § 250.101.
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`36.
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`OCSLA prescribes four stages for BOEM to lease and allow development of oil
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`and gas deposits in the Outer Continental Shelf: 1) five-year leasing programs; 2) lease sales;
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`3) exploration plans; and 4) development and production plans. 43 U.S.C. §§ 1337, 1340, 1344,
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`1351.
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`37.
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`At the five-year program stage, BOEM proposes a schedule of lease sales over an
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`upcoming five-year period. Id. § 1344(a).
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`38.
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`At the lease sale stage, BOEM offers for sale leases that “entitle the lessee to
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`explore, develop, and produce the oil and gas contained within the lease area,” subject to certain
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`additional approvals. Id. § 1337.
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`39.
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`Lessees must obtain BOEM’s approval of an Exploration Plan or Development
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`Operations Coordination Document before they may commence exploration or production,
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`respectively, on a lease. Id. §§ 1340, 1351; 30 C.F.R. § 550.201.
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`40.
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`Lessees also must obtain approval from BSEE before they may drill or install
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`certain structures. 30 C.F.R. § 550.281.
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`III.
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`ADMINISTRATIVE PROCEDURE ACT
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`41.
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`The APA confers a right of judicial review on any person who is adversely
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`affected by agency action. 5 U.S.C. § 702.
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`42.
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`The APA provides that the reviewing court “shall . . . hold unlawful and set aside
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`agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of
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`discretion, or otherwise not in accordance with law.” Id. § 706(2)(A).
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`STATEMENT OF FACTS
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`I.
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`THREATENED AND ENDANGERED WILDLIFE IN THE GULF OF MEXICO
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`43.
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`The Gulf of Mexico is home to some of the most productive and biodiverse
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`tropical and temperate habitats in the United States, including coral reefs, wetlands, seagrass
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`beds, mangroves, Sargassum, and hard- and soft-bottom marine communities. These ecosystems
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`support thousands of species of fish, whales and dolphins, sea turtles, corals, and other animals.
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`Many of the populations found in the Gulf of Mexico are listed as endangered or threatened
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`under the ESA.
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`44.
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`The Gulf of Mexico Bryde’s whale, sperm whale, blue whale, sei whale, and
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`North Atlantic right whale are found in the Gulf and listed as endangered. The Gulf of Mexico
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`Bryde’s whale is one of the most endangered populations of whales in the world, due primarily
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`to oil and gas activity in its habitat.
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`45.
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`All five sea turtle species found in the Gulf are listed as endangered or threatened:
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`the Kemp’s ridley sea turtle (the most endangered sea turtle in the world), hawksbill sea turtle,
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`and leatherback sea turtle are listed as endangered, while the loggerhead sea turtle (Northwest
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`Atlantic Distinct Population Segment [DPS])1 and green sea turtle (North Atlantic DPS and
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`South Atlantic DPS) populations in the Gulf are listed as threatened.
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`46.
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`Among the Gulf’s fish species, the oceanic whitetip shark, giant manta ray, Gulf
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`sturgeon, and Nassau grouper are listed as threatened, and the smalltooth sawfish is listed as
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`endangered.
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`47.
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`Seven species of coral in the Gulf of Mexico are listed as threatened: boulder star
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`coral, lobed star coral, mountainous star coral, elkhorn coral, staghorn coral, rough cactus coral,
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`and pillar coral.
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`48.
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`Additionally, critical habitat is designated in or along the Gulf of Mexico for the
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`loggerhead sea turtle, Gulf sturgeon, smalltooth sawfish, elkhorn coral, and staghorn coral.
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`II.
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`PREVIOUS ESA CONSULTATIONS ON GULF OF MEXICO OIL AND GAS
`ACTIVITIES
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`49.
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`Federally approved oil and gas exploration, development, and production
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`activities in the Gulf of Mexico are extensive. Each year, oil and gas operators conduct hundreds
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`of thousands of activities that adversely affect threatened and endangered species and their
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`habitats in the Gulf, including but not limited to, drilling wells, constructing pipelines, installing
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`entire subsea production systems, pumping oil and gas, and loading and transporting oil, gas, and
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`cargo on ships. See Figure 1. These activities inflict harms to wildlife and the environment that
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`include oil spills, vessel strikes, noise (from vessels, construction, and general operations),
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`marine debris and other water pollution, and underwater explosions.
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`1 The ESA allows NMFS to separately list individual DPSs of species as threatened or
`endangered. See 16 U.S.C. § 1532(16) (defining “species” to include “any distinct population
`segment of any species of vertebrate fish or wildlife which interbreeds when mature”). NMFS
`identifies DPSs based on the population’s “discreteness,” “significance,” and “conservation
`status.” 61 Fed. Reg. 4722, 4725 (Feb. 7, 1996).
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`Case 8:20-cv-03060-PX Document 1 Filed 10/21/20 Page 14 of 40
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`50.
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`Due to these effects, federal lease sales and authorizations pursuant to OCSLA are
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`subject to the ESA’s section 7 consultation requirements. Vill. of False Pass v. Clark, 733 F.2d
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`605, 609 (9th Cir. 1984).
`
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`Figure 1 – Drilling platforms (orange), leases (green), and pipelines (black) in federal waters in
`the Gulf of Mexico as of February 2020 (source: BOEM ARCGIS Online Interactive Map)
`
`51.
`
`NMFS and Interior completed ESA consultations on Gulf of Mexico oil and gas
`
`activities at several points in recent decades. Their most recent consultation (prior to the action
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`challenged in this suit) concluded in 2007 with NMFS’s issuance of a biological opinion.
`
`52.
`
`NMFS concluded in that 2007 biological opinion that oil and gas exploration,
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`development, and production in the Gulf would not jeopardize any listed species or adversely
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`modify critical habitat.
`
`53.
`
`Notably, NMFS predicted that oil spills from such activities would cause little
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`harm. NMFS and Interior believed the largest spill possible would be at most 15,000 barrels, but
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`that such a large spill was extremely unlikely.
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`Case 8:20-cv-03060-PX Document 1 Filed 10/21/20 Page 15 of 40
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`III.
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`THE DEEPWATER HORIZON EXPLOSION AND OIL SPILL
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`54.
`
`That prediction proved gravely wrong on April 20, 2010, when a series of human
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`and mechanical failures culminated in an explosion that tore through the Deepwater Horizon oil
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`drilling rig and caused the rig to sink and oil to gush from the seabed. Approximately 4.9 million
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`barrels of oil—more than 325 times more than the worst case scenario in the 2007 biological
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`opinion—flowed into the Gulf over the next 87 days.
`
`55.
`
`The spill contaminated over 43,000 square miles of surface waters and over 1,300
`
`miles of shoreline. Recent research indicates that toxic concentrations of invisible oil spread
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`through the water column across an even larger area, extending past the Florida Keys and along
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`the Atlantic Coast of Florida.
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`56.
`
`Scientists estimate the spill killed or seriously harmed billions, if not trillions, of
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`animals, including over 100,000 individuals of species listed as threatened or endangered.
`
`57.
`
`The spill’s harm to marine species and the environment continues to this day, with
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`long-term population declines, altered ecosystems, and persistent contamination.
`
`IV.
`
`REINITIATED CONSULTATION AND THE NEW PROGRAMMATIC
`BIOLOGICAL OPINION ON GULF OF MEXICO OIL AND GAS ACTIVITIES
`
`58.
`
`In late 2010, NMFS and Interior reinitiated formal consultation on federally
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`authorized Gulf of Mexico oil and gas activities under OCSLA, in light of new information from
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`the Deepwater Horizon disaster. The agencies agreed that the spill had called into question the
`
`assumptions behind their analyses in previous consultations. Specifically, the agencies believed
`
`they had underestimated the size and likelihood of a catastrophic spill and needed to reassess
`
`how the Deepwater Horizon spill had altered the status of listed species and critical habitats.
`
`59.
`
`After nearly eight years had passed without completion of the consultation, some
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`of the Plaintiffs in this case filed a lawsuit against NMFS to compel the agency to complete the
`
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`Case 8:20-cv-03060-PX Document 1 Filed 10/21/20 Page 16 of 40
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`unreasonably delayed consultation. See Gulf Restoration Network v. Nat’l Marine Fisheries
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`Serv., No. 8:18-CV-1504-T-27AEP, 2020 WL 836516, at *1 (M.D. Fla. Feb. 20, 2020). As a
`
`result of a settlement in that case, NMFS finally completed the reinitiated consultation and issued
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`the corresponding programmatic biological opinion on March 13, 2020. See id. at *1–3.
`
`60.
`
`The Biological Opinion on the Federally Regulated Oil and Gas Program
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`Activities in the Gulf of Mexico (the BiOp) covers “all activities associated with the Outer
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`Continental Shelf (OCS) oil and gas program in the Gulf of Mexico” proposed to be taken by
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`BOEM, BSEE, and other federal agencies involved with the program.
`
`61.
`
`The covered actions include all those associated both with previously issued oil
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`and gas leases, and with all new leases issued “through approximately 2029.” Because leases
`
`have about a 40-year lifespan, “the proposed action is projected to cover 50 years.”
`
`62.
`
`NMFS concluded that the proposed action will jeopardize the continued existence
`
`of the Gulf of Mexico Bryde’s whale, but determined that the imposition of certain proposed
`
`mitigation measures through an RPA would prevent jeopardy. NMFS concluded the action will
`
`not jeopardize the continued existence of the sperm whale, Kemp’s ridley sea turtle, loggerhead
`
`sea turtle (Northwest Atlantic DPS), green sea turtle (North Atlantic DPS or South Atlantic
`
`DPS), hawksbill sea turtle, leatherback sea turtle, Gulf sturgeon, oceanic whitetip shark, or giant
`
`manta ray. NMFS further concluded the action will not adversely modify critical habitat for
`
`loggerhead sea turtles or Gulf sturgeon. NMFS also concluded that the proposed action is not
`
`likely to adversely affect the blue whale, sei whale, North Atlantic right whale, Nassau grouper,
`
`smalltooth sawfish, boulder star coral, elkhorn coral, lobed star coral, mountainous star coral, or
`
`critical habitat for the smalltooth sawfish. NMFS’s no-jeopardy and no-adverse modification
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`conclusions are arbitrary and capricious due to numerous flaws in the underlying analyses.
`
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`Case 8:20-cv-03060-PX Document 1 Filed 10/21/20 Page 17 of 40
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`63.
`
`Chief among NMFS’s errors are its failures to correct the admittedly flawed oil
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`spill analyses from the 2007 biological opinion and to incorporate post-Deepwater Horizon
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`population and habitat changes into the jeopardy and adverse modification analyses, as well as
`
`its failures to account for other important factors or use the best available science. NMFS also
`
`failed to issue a legally compliant incidental take statement, relied on legally and scientifically
`
`insufficient RPAs, and arbitrarily concluded that the action is not likely to adversely affect ESA-
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`listed corals.
`
`A.
`
`64.
`
`Flawed oil spill risk analysis
`
`In its oil spill analysis, NMFS estimated the number of oil spills anticipated to
`
`occur as a result of the proposed action. NMFS characterized the spills into different spill size
`
`categories (e.g., “extremely large” spills > 1 million barrels,2 “very large” spills ≥ 10,000 barrels,
`
`and “large” spills 1,000–9,999