On March 31, 2026, the Endangered Species Committee (Committee) voted unanimously to exempt from the requirements of the Endangered Species Act (ESA) all Gulf of America (f/k/a Gulf of Mexico) oil and gas exploration, development, and production activities associated with the Bureau of Ocean Energy Management’s (BOEM’s) and the Bureau of Safety and Environmental Enforcement’s (BSEE’s) Outer Continental Shelf Oil and Gas Program. The decision, published in the Federal Register on April 3, 2026 (FR Doc. 2026-06458), is effective immediately.
Background
Section 7(j) of the ESA provides that if the Secretary of War (f/k/a Secretary of the Army) determines that an exemption is “necessary for reasons of national security,” the Committee is required to grant one “notwithstanding any other provision” of the Act. On March 13, 2026, Secretary Dan Driscoll transmitted national security findings invoking this provision for all oil and gas activities under the BOEM and BSEE Outer Continental Shelf Oil and Gas Program, collectively defined in the order as “Gulf of America Oil and Gas Activities.”
Secretary of the Interior Doug Burgum chairs the committee; other committee members are Dan Driscoll (Secretary of the Army), Lee Zeldin (Administrator of the Environmental Protection Agency), Brooke Rollins (Secretary of Agriculture), Pierre Yared (Acting Chairman of the Council of Economic Advisors), and Neil Jacobs (Under Secretary of Commerce for Oceans and Atmosphere and National Oceanic and Atmospheric Administration Administrator). The six-member Committee convened a public meeting and voted unanimously to grant the exemption that same day.
Scope and Effect
The exemption covers the “Gulf of America Oil and Gas Activities,” defined as oil and gas exploration, development, and production activities associated with BOEM’s and BSEE’s Outer Continental Shelf Oil and Gas Program and reviewed in National Marine Fisheries Service’s (NMFS’s) 2025 biological opinion and U.S. Fish and Wildlife Service’s (USFWS’s) 2018 and 2025 consultation decisions. In practical terms:
- Federal agencies implementing these covered activities are no longer required to complete the Section 7(a)(2) interagency consultation process before authorizing, funding, or carrying out covered activities.
- The substantive “jeopardy” and “adverse modification” standards no longer apply to covered activities for the duration of the program.
- Actions that would ordinarily constitute a “take” of a listed species are not prohibited under the ESA.
- Avoidance and minimization measures described in the NMFS and USFWS consultation documents remain in effect.
Procedural Implications and Judicial Review
The ESA ordinarily requires a formal application, notice-and-comment procedures, and specific statutory standards before the Committee may grant an exemption. The Committee concluded that these provisions do not apply when Section 7(j) is invoked, and that the usual requirement to specify mitigation and enhancement measures tied to an exemption application does not apply in this context. The Committee further noted that, even if such requirements were applicable, they would be satisfied by the avoidance and minimization measures already incorporated in the underlying biological opinions and consultation decisions.
Challenges to this decision—which seem likely—must be brought in the U.S. Courts of Appeals for the Fifth or Eleventh Circuits because the covered activities are carried out in the federal and state waters, coastal areas, and waterways of the Gulf of America. Integral Consulting Inc. provides technical support for litigation, as well as for permitting and compliance on matters related to threatened and endangered species listings and critical habitat designations. For more information, please contact the authors.