Lawsuit Challenges Seismic Oil, Gas Testing in Gulf of Mexico

NRDC and partner groups Healthy Gulf, the Center for Biological Diversity, the Association of Zoos and Aquariums and the Surfrider Foundation sued the National Marine Fisheries Service (NMFS) today over a Trump administration decision to allow extensive seismic airgun testing in the Gulf of Mexico, with minimal protections for marine animals.

Most at risk is an endangered whale species with just 50 surviving individuals.

The lawsuit, which was filed near NMFS' headquarters in southern Maryland, claims that the agency violated the Endangered Species Act, Marine Mammal Protection Act and National Environmental Policy Act when it approved the testing, which is used to search for oil and gas deposits deep beneath the ocean floor. The intense noise produced by the tests is known to travel widely through the ocean and to disrupt marine animals on a vast scale, impairing their ability to communicate, feed and reproduce.

"NMFS has been playing games with both the science and some of this nation's bedrock environmental laws to justify an insupportable amount of harm to marine species," said Michael Jasny, director of NRDC's Marine Mammal Protection Project. "The agency should be fighting to save endangered whales, not auctioning off their last chances for survival to the oil and gas industry."

In conducting its tests, the oil and gas industry typically relies on high-energy seismic airguns, which are towed behind ships in large arrays and release intense bursts of compressed air in the water, producing intense sound about every 10 to 12 seconds. Seismic tests take place day and night and can continue for weeks or months depending on the size of the survey.

The amount of seismic activity anticipated by NMFS is enormous, amounting to around-the-clock activity from simultaneous tests each year in what is among the most intensively prospected bodies of water on the planet. The agency's approval would allow the industry to harm marine mammals in the Gulf of Mexico more than 8 million times over 5 years.

"The level of damage to the marine mammals of the Gulf that NMFS is authorizing is immense and unacceptable," said Cynthia Sarthou, executive director of Healthy Gulf. "It could contribute to the extinction of the highly endangered Rice's whale and would undermine the recovery of many populations of dolphins and whales harmed by the BP Disaster."

Among the species at greatest risk is the Gulf of Mexico whale, also known as "Rice's whale." In January NMFS scientists published a paper recognizing the Gulf of Mexico whale as a unique species, making it the only species of baleen whale believed to reside entirely off the United States. Last year NMFS found that oil and gas activities, including seismic testing, would jeopardize the whales' continued existence if allowed to proceed without sufficient protection. A mere 50 individuals are thought to remain.

"We have to block this Trump-approved scheme to blast some of the world's most endangered whales with seismic airguns," said Kristen Monsell, legal director of the Center for Biological Diversity's Oceans program. "The oil industry's horrifically loud testing threatens the very existence of the Gulf of Mexico whale, and it'll do tremendous harm to other marine mammals. Wreaking this kind of havoc to find new fossil fuels makes zero sense as the climate crisis accelerates, and we need Biden officials to stop allowing new offshore drilling activity."

The lawsuit claims that NMFS violated the Endangered Species Act in failing to prescribe statutorily required "reasonable and prudent alternatives" to protect the Gulf of Mexico whale from seismic testing. It also claims that the agency violated Marine Mammal Protection Act standards that only "small numbers" of marine mammals will be taken, that the impacts on those species and populations will be "negligible," and that, through mitigation, the "least practicable adverse impact" on marine mammals and their habitat is achieved.

Finally, the lawsuit claims that NMFS, together with the Bureau of Ocean Energy Management, violated the National Environmental Policy Act in failing to adequately assess the impacts of seismic testing on the Gulf of Mexico whale.

"Members of the Association of Zoos and Aquariums have a long track record of action to protect and save species from extinction. This five-year approval issued on the last day of the Trump administration appears rushed and inconsistent with the scientific record," said Dan Ashe, president and CEO of the Association of Zoos and Aquariums. "If left unchecked, the amount of proposed seismic testing in the Gulf of Mexico could have catastrophic impacts on the marine animals who call the Gulf of Mexico home, particularly the less than 100 remaining Gulf of Mexico whales, one of the most endangered species in the world. We must do what we can to avoid this possible outcome."

The lawsuit was filed as the Biden administration is reviewing the government's leasing and permitting practices for fossil fuel development on federal lands. In January the White House included the NMFS rule authorizing seismic testing, which was published in the waning hours of the Trump administration, in a list of agency environmental actions for review.

"Seismic testing can be harmful to the tens of thousands of dolphins, whales and other marine animals in the Gulf of Mexico," said Angela Howe, legal director at the Surfrider Foundation. "We have filed this lawsuit to protect the Gulf of Mexico from the damaging impacts of seismic testing and ensure that federal laws to protect our environment are properly enforced. We are proud to join our partners in standing up to protect the Gulf of Mexico's invaluable marine ecosystem for this and future generations."

"These loud seismic blasts will unnecessarily harm whales and dolphins in the Gulf in order to search for more oil and gas reserves that we don't need," said Brettny Hardy, senior attorney at Earthjustice, which is representing Healthy Gulf and Surfrider Foundation in the lawsuit. "The oil industry has a store of nearly 10 million acres of public land that has yet to be developed. As demand for petroleum products continues to drop, there is no reason to harm majestic and endangered whales just to search for new reserves that won't be needed in the future."