Endangered Species Committee Issues Order Exempting Gulf Oil and Gas Activities from Endangered Species Act Requirements

On March 31, 2026, for the first time in the 53 years since the Endangered Species Act (“ESA”) became law, the Endangered Species Committee (the “ESC” or “Committee”) unanimously voted to exempt Gulf of America (“GOA”) Oil and Gas Activities from various ESA requirements. Effective immediately, the ESC Order provides that federal agencies tasked with implementing and regulating oil and gas activities in the GOA are no longer required to comply with the procedural consultation and substantive “jeopardy” and “adverse modification” mandates of section 7(a)(2) of the ESA. Further, any action that would ordinarily be considered a “take” are no longer prohibited under the ESA. The ESC Order aims to strengthen the national security of the United States by reducing ongoing and anticipated ESA litigation, with the hopes that the increased regulatory certainty will lead to an increase in offshore oil and gas exploration and development in the GOA.  

The ESA and the ESC. The ESA, which was enacted in 1973, provides protections for endangered and threatened species by prohibiting certain activities that result in “jeopardy” to endangered species. In 1978, the ESA was amended to provide a process for obtaining an exemption to the “jeopardy” prohibition. See 16 U.S.C. § 1536. The ESA, as amended, tasks the ESC with determining whether to grant an exemption. 16 U.S.C. § 1536(e)(1)-(2); 16 U.S.C. § 1536(h). The ESC consists of seven individuals: 1) the Secretary of the U.S. Department of the Interior, 2) the Secretary of the U.S. Department of Agriculture, 3) the Secretary of the U.S. Army, 4) the Chairman of the Council of Economic Advisors, 5) the Administrator of the U.S. Environmental Protection Agency, 6) the Administrator of the National Oceanic and Atmospheric Adminstration, and 7) representative(s) from the affected state(s) whom are appointed by the President. 16 U.S.C. § 1536(e)(3). Pursuant to section 7(j) of the ESA, the ESC has special authority and “shall grant an exemption for any agency action if the Secretary of Defense finds that such exemption is necessary for reasons of national security.” 16 U.S.C. § 1536(j).  

Committee Meeting Backdrop. The Rice’s whale and thousands of other marine species call the GOA home. Accordingly, during the federal offshore oil and gas leasing process, the ESA requires the Bureau of Ocean Energy Management (“BOEM”) and the Bureau of Safety and Environmental Enforcement (“BSEE”)—two U.S. Department of Interior sub-agencies charged with regulating offshore oil and gas—to formally consult with the National Marine Fishery Service (“NMFS”) and the Fish and Wildlife Service (“FWS”) and ask for guidance on how to comply with ESA substantive mandates while promoting offshore oil and gas development. This formal consultation process results in the issuance of consultation decisions, ESA guidance, and most importantly, a biological opinion that may include a “jeopardy” finding and reasonable and prudent alternatives to avoid jeopardy and allow the project to move forward. This aspect of the federal offshore leasing process has been consistently challenged by environmental non-governmental organizations (“NGOs”).

Regardless of whether the lawsuits challenge individual lease sales or entire National OCS Oil and Gas Programs, NGO attempts to block offshore oil and gas development routinely include challenges to the sufficiency and legality of the resulting biological opinions and consultation decisions. Sierra Club v. NMFS, Center for Biological Diversity v. Burgum and Healthy Gulf v. Burgum are recent examples of ESA-litigation initiated by environmental NGOs. These lawsuits specifically challenge the sufficiency and legality of the NMFS’s 2025 biological opinion, the FWS’s 2018 and 2025 Consultation Decisions, and other ESA consultation decisions that impose stringent conditions and mitigation measures to prevent impacts on several species, including the Rice’s whale. 

On January 26, 2026, the U.S. Department of the Interior (“DOI”), currently led by Secretary Doug Burgum, notified the U.S. Department of Defense (also known as the U.S. Department of War) of the ongoing ESA litigation and DOI’s view of the impacts on offshore oil and gas exploration, development, and production in the GOA. Several months later, by letter dated March 13, 2026, Secretary of Defense Pete Hegseth responded and shared his national security findings, which included, but were not limited to the following: 

1. 15% of U.S. crude oil and about 1.7% of U.S. dry natural gas comes from the GOA;
2. Application of the ESA and recent litigation over its application threaten oil and gas development throughout the GOA;
3. The biological opinions and incidental take statements, prepared respectively by the NMFS and the FWS, have been repeatedly challenged in litigation over the past several years and continue to be challenged in multiple ongoing cases;
4. The ESA litigation is diverting federal resources away from approving, managing, and regulating oil and gas activities in the GOA and creating uncertainty and instability, which is chilling the development of oil and gas resources in the GOA;
5. The United States’s ability to extract oil from the GOA is a matter of national security; and
6. Given the critical role that oil and gas from the GOA play in the United States’s national security, an exemption from ESA requirements is necessary.  

Based on these national security findings, Defense Secretary Hegseth concluded that, pursuant to section 7(h) of the ESA, the national security of the United States requires the ESC to exempt the proposed actions reviewed in the 2025 biological opinion and the FWS consultation decisions from the ESA.

March 31, 2026 Committee Meeting and ESC Order. At Defense Secretary Hegseth’s request, Interior Secretary Burgum, as Chairman of the ESC, convened the ESC on March 31, 2026, for a Committee Meeting. The Committee Meeting, which was made publicly available, marked the fourthever meeting of the ESC and the first time the ESC convened due to matters of national security. During the meeting, the ESC addressed the Secretary of Defense’s national security findings, unanimously voted to exempt “Gulf of America Oil and Gas Activities” from the ESA requirements, and issued an order effectuating said exemption effective immediately. Pursuant to the ESC Order, the term “Gulf of America Oil and Gas Activities” includes “both the oil and gas exploration, development, and production activities, as well as the avoidance or minimization measures described in the agency action analyzed in NMFS’s 2025 biological opinion and in FWS’s 2018 and 2025 consultation decisions.” Additionally, the ESC Order provides that any action that would be considered a “take” under the ESA shall not be prohibited. 

Impact of the ESC Order. Effective immediately, BOEM and BSEE will no longer be required to consult other federal agencies, such as the NMFS and FWS, about ESA compliance when undertaking oil and gas activities in the GOA. Several notable uncertainties remain following the ESC Order. For example, it is uncertain whether the ESC Order will stand. Shortly after the ESC Order was issued, several NGOs, including Earthjustice, the Center for Biological Diversity, Oceana, Turtle Island Restoration Network, and the Natural Resources Defense Council, filed suit arguing that the ESC Order sidesteps environmental protections put in place by Congress and concentrates power within the executive branch.  Additionally, it is not clear whether the ESA exemption will have any effect on the Marine Mammal Protection Act (“MMPA”), which is a separate but related statute that includes prohibitions like those included in the ESA. Unlike the ESA, the MMPA does not include an exemption process.  

This meeting made clear that energy streams in the Gulf of America must not be disrupted or held hostage by ongoing litigation

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