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Conservation groups go into mediation with NOAA Fisheries over endangered Gulf species protections

Aerial shot of a Rice's whale from above showing its whole body against bright blue water.
National Oceanic and Atmospheric Administration
Gulf of Mexico whale, also known as Rice's whale.

"These agencies are basically pretending that another catastrophic oil spill cannot possibly occur, cannot possibly be a risk for the Gulf of Mexico. And we know that that risk is real, and they need to be paying attention to that," said Chris Eaton, Earthjustice attorney.

A lawsuit against the federal government over oil and gas development's impact to endangered species in the Gulf of Mexico is headed to mediation.

Earthjustice filed the federal lawsuit on behalf of Sierra Club, the Center for Biological Diversity, Friends of the Earth, and the Turtle Island Restoration Network in 2020, claiming the National Marine Fisheries Service violated the Endangered Species Act by underestimating the damage from the industry to animals like the Gulf of Mexico whale, also known as Rice's whalein its most recent biological opinion. There are only about 50 of the whales left. The 2010 BP oil spill is believed to have wiped out 20% of their population.

WUSF's Jessica Meszaros spoke with Chris Eaton, an attorney for Earthjustice, about the latest hearing on Jan. 6 in U.S. District Court in Maryland, and the pending mediation, which will determine how the Fisheries Service will protect endangered species while updating its biological opinion.

Is there anything in particular in the Trump administration's biological opinion — was there any terminology, any words that you necessarily disagreed with, or was it just a lack of information?

The Department of the Interior, which runs the oil and gas program, basically said that there is no chance that there will be another catastrophic oil spill, like the BP disaster in the Gulf of Mexico. And the evidence in there shows that the risk is not negligible. It's certainly a real possibility and so one of the problems there is that these agencies are basically pretending that another catastrophic oil spill cannot possibly occur, cannot possibly be a risk for the Gulf of Mexico. And we know that that risk is real, and they need to be paying attention to that.

What was the main takeaway from the January 6 court hearing?

The case was filed in 2020 and there have been a number of procedural issues that we've been working through and right as we were ... in the middle of briefing the merits, the Fisheries Service, asked the court to what's known as a voluntarily remand the case to the agencies, so ... which effectively would end the litigation and send the case back to the agency to take a do-over. And the problem here is that the agency is saying ... we're not going to produce a new biological opinion for a few years, and we're not going to make any commitment as to what that is going to contain.

And the conservation groups' main concern here is that over the next two years or more, while the Fisheries Service were to get its remand, there'd just be inadequate mitigation. And so it's really imperative to have additional protections for species in the meantime. And during this January 6 hearing that was raised and the parties raised the prospect of entering mediation to discuss whether we could come to some mutually agreed upon mitigation measures and protections that could be in place. The court thought that was a good idea and referred the parties to mediation and the judge is going to defer ruling on their remand request while we go to mediation.

Let's say you got you guys come to some terms during mediation that get implemented within the next couple years of them creating a new biological opinion, is the court case finished then until the new opinion comes out? Like would it would it be considered settled at that point?

You know, there are a couple of ways it could turn out. I think effectively what would happen is this court case would be put on pause, pending the new biological opinion in the meantime. And you know, once that opinion comes out, then ... what happens with the current case kind of would depend on on that new opinion.

It could take a couple of years, right, for the new opinion to come out?

Yeah, the Fisheries Service is estimating right now that they would issue a new opinion, no sooner than September of 2024. It could take longer. The current biological opinion, the one that we challenged, the Fisheries Service, began working on it in 2010, and didn't actually complete it until 2020. So, it took 10 years last time around, so sometimes these things can take a lot longer than the Fisheries Service anticipates.

Is there anything else that we haven't talked about that you wanted to mention before we conclude?

This case is about endangered species, and we talk about protection for Rice's whale, and protection for sea turtles, but it's not just about the those species. The same measures that are going to protect threatened wildlife are going to protect fish, and corals and invertebrates in the Gulf. The same measures are going to protect just an overall healthy Gulf ecosystem and the people and the communities along the Gulf, that rely on that ecosystem.

My main role for WUSF is to report on climate change and the environment, while taking part in NPR’s High-Impact Climate Change Team. I’m also a participant of the Florida Climate Change Reporting Network.