On March 16, 2026, the Department of the Interior announced a rare meeting of the Endangered Species Committee (ESC or Committee), colloquially referred to as the “God Squad.”[1] The Committee — composed of six permanent members, including the Secretaries of the Interior, Agriculture, and the Army; the Chairman of the Council of Economic Advisers; the Administrators of the Environmental Protection Agency and the National Oceanic and Atmospheric Administration; and one individual from each state affected — is set to discuss an exemption under the Endangered Species Act (ESA) related to oil and gas exploration, development and production in the Gulf of America f/k/a Gulf of Mexico (Gulf).
The ESA authorizes the Committee to exempt federal agency actions and associated private activities from the requirements of the ESA under certain defined circumstances.[2] The exemption provisions were added to the ESA in 1978 but have rarely been used, with the last instance occurring decades ago. Any exemption, if granted, could have substantial implications for the Gulf offshore oil and gas sector by potentially streamlining development and minimizing uncertainty over operational requirements resulting from litigation.
Section 7 Consultation Requirements for Gulf Oil and Gas Activities
Congress passed the ESA in 1973 to conserve endangered species and their habitats.[3] Responsibility for administering the Act is shared by the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service (NMFS), as to marine species, and the Department of the Interior’s US Fish and Wildlife Service (FWS) (collectively, the Services) as to terrestrial and freshwater species.
ESA Section 7 requires any federal agency, in “consultation” with the appropriate Service,[4] to ensure that any action authorized, funded, or carried out by the agency is not likely to jeopardize the continued existence of a listed endangered or threatened species or adversely modify designated critical habitat. If the agency action may adversely affect a listed species or critical habitat, the agency proceeds to formal consultation, culminating in a biological opinion issued by the Service. If the biological opinion concludes that the agency action as proposed is likely to jeopardize the continued existence of a listed species, the Service must issue “reasonable and prudent alternatives” (RPAs) to the agency action that will avoid jeopardy. In addition, if the agency action may result in the incidental “take” (e.g., death or injury to a listed species), the Service will issue an “incidental take statement” that includes terms and conditions that, if followed, exempts the agency or any private applicant from ESA liability. RPAs and incidental take statements issued by the Service often include protective conditions, limitations and mitigating measures on projects and operations that must be followed to comply with the ESA.[5]
Gulf oil and gas activities authorized by the Bureau of Ocean Energy Management (BOEM) and the Bureau of Safety and Environmental Enforcement (BSEE) are presently subject to two separate biological opinions issued by NMFS and FWS respectively. Both opinions include conditions and terms that can have a substantial impact on Gulf projects and activities. Of note, the NMFS biological opinion includes several measures and restrictions affecting Gulf vessel operations to address the possibility of vessel strikes with the endangered Rice’s whale. In addition, prior biological opinions covering Gulf oil and gas activities have been subject to continuing litigation for years, thereby creating uncertainty for industry operations. This trend and attendant uncertainty continue today with the current NMFS and FWS biological opinions both subject to ongoing litigation.[6]
How the ESA Committee May Reshape Oil and Gas Activities in the Gulf
After the Supreme Court’s ruling in TVA v. Hill halted Tellico Dam construction due to impacts on the endangered snail darter,[7] Congress amended the ESA to create the ESC and permit exemptions from Section 7 requirements in exceptional cases, regardless of effects on listed species.[8] The ESC can use this authority in two situations.
First, the Act allows an agency, the governor of an affected state, or an affected applicant for a permit or license to apply for an exemption where, after consultation, NMFS and/or FWS has found the agency action will result in jeopardy to a species. The exemption application triggers a lengthy administrative process culminating in a report by the Secretary of the Interior to the ESC. Thereafter, the ESC may grant the exemption if it finds, inter alia, that no reasonable and prudent alternatives exist; the benefits of the proposed action clearly outweigh the benefits of alternatives; the action is in the public interest; and reasonable mitigation and enhancement measures can be established to minimize harm.[9]
Second, the ESA provides that “[n]otwithstanding any other provision of this chapter” the ESC “shall grant an exemption for any agency action if the Secretary of Defense finds that such exemption is necessary for reasons of national security.”[10] There are no examples of this national security exemption ever being invoked. Procedurally, it is unclear if the detailed and extensive administrative procedures applicable to the other form of exemption apply to the national security exemption.
Nonetheless, while meeting notice itself is short on detail, we expect the government will be looking to use these exemption provisions to insulate Gulf oil and gas activities from certain ESA requirements and legal challenges. This does not mean that no mitigation or protective conditions for ESA listed species will apply to activities. But an exemption could be used to cut back on more onerous conditions and/or preclude more conditions being imposed as a result of litigation. This could result in a significant shift in how Gulf oil and gas activities are regulated under the ESA. Of course, any such decision would undoubtedly trigger immediate and vigorous litigation, ensuring the debate over the ESA’s role in Gulf energy policy continues for years to come.[11] The meeting is scheduled for March 31 and will be available via livestreaming here.
If you have any questions about how this may impact your company’s projects or business plans in the Gulf, please reach out to Bracewell’s environment, lands and resources team.
[1] See Endangered Species Committee Meeting Announcement, 91 Fed. Reg. 12672, 12672 (Mar. 16, 2026).
[2] 16 U.S.C.§§ 1536(e)-(l).
[3] Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544.
[4] Where, as here, an agency action may affect both marine and terrestrial species, the agency must consult with both FWS and NMFS.
[5] 16 U.S.C. §§ 1536(a)(2), (b)(3), (b)(4).
[6] See Louisiana v. NMFS, No. 25-691 (W.D. La.) (challenge by State and regulated entities claiming NOAA biological opinion is overprotective); Sierra Club v. NMFS, No. 25-1627 (D. Md.) (challenge by NGOs claiming NOAA biological opinion is under protective); Center for Biological Diversity v. Haaland, No. 24-990 (D.D.C.) (challenge by NGOs claiming FWS biological opinion is under protective).
[7] 437 U.S. 153 (1978).
[8] 16 U.S.C.§§ 1536(e)-(l)
[9] Id. § 1536((h)(1)
[10] Id. § 1536(j).
[11] Indeed, on March 18, 2026, a suit already was filed seeking to enjoin the DOI Secretary from convening the March 31, 2026, Endangered Species Committee meeting. See Center for Biological Diversity v. Burgum, No. 26-940 (D.D.C.).
