BiOp Update: Staving Off the Worst in the Gulf

Mark Green
Posted October 25, 2024

Heads up: A federal judge this week extended the window of time for the government to complete a new Biological Opinion (“BiOp”) covering Gulf of Mexico oil and natural gas operations – to May 21, 2025, replacing a previous vacatur date of Dec. 20 for the existing BiOp. (See this post last month.) 

Significance: Without a BiOp in place, all Gulf oil and natural gas operations were at risk of being shut down in December, potentially resulting in hundreds of thousands of lost jobs, tens of billions in GDP decline and lost investment and the loss of millions of barrels of oil equivalent per day in energy production. 

Background: In August, U.S. District Judge Deborah Boardman in Maryland struck down the 2020 Gulf BiOp, ordering the analysis vacated as of Dec. 20. As Bloomberg reported, the BiOp provides a “legal foundation” for Gulf oil and natural gas operations, which U.S. offshore regulators rely upon instead of conducting case-by-case evaluations for permitting and other regulatory decisions. 

The Big Story: Judge Boardman’s extension gives the National Marine Fisheries Service (NMFS) five additional months to finish a new BiOp and avert a potential energy and economic crisis stemming from a shutdown of Gulf oil and natural gas activity. The Gulf accounts for about 15% of all U.S. oil production. 

In a legal filing supporting the extension from December to next May, Walter D. Cruickshank, deputy director of the U.S. Bureau of Ocean Energy Management (BOEM), said: 

“… no amount of planning can mitigate the potentially extreme and dangerous destabilization of the [Gulf of Mexico] oil and gas industry, and BOEM’s management of that industry, that will flow from vacatur on December 20.” 

What’s Next? NMFS officials working on a new BiOp were ordered to submit updates to the court every 60 days beginning Dec. 15 until May 21, 2025. API continues to work with the government to see that the process for a new BiOp moves forward. Ryan Meyers, API senior vice president and general counsel: 

“We welcome the court’s pragmatic decision to allow NMFS more time to complete a new biological opinion for oil and natural gas operations in the U.S. Gulf of Mexico. [The] ruling provides only temporary relief and work still must be done to avoid disruptions to the backbone of our nation’s energy supply. We stand ready to work with NMFS and offer our industry's expertise to complete a new biological opinion that balances environmental protection and the world’s growing need for affordable, reliable energy.” 

Bottom Line: It’s hard to overstate the size of the calamity that loomed in the Gulf – avoided, for now, with the judge’s order extending the current BiOp. Shutting down Gulf oil and natural gas production could have unleashed impacts in the region and far beyond: direct jobs, supply chain jobs, economic activity, investment, and future production.