Oil Group Sues Interior Over Arbitrary Unlawful Restrictions

Guest “Time to kick some @$$!” by David Middleton

This is a continuation of the Rice’s whales saga.

A quick recap

One of the first things Biden did after occupying the Oval Office was to halt oil & gas lease sales in the Gulf of Mexico. This was illegal. When forced to choose between holding the lease sale, or having the Secretary of the Interior face contempt of court charges, they held Sale 257 in November 2021.

A corrupt Obama judge voided the results of that Sale 257 in January 2022. As that case was being appealed in July 2022, Sen. Joe Manchin’s (D-WV) Inflation Reduction Act was passed by Congress and signed into law by Biden. This law required the Interior Department to honor the results of Sale 257 and continue to hold future sales over the open areas of the Gulf of Mexico. The law required Sale 261 to be held before September 30, 2023. Sale 261 is scheduled for September 27, 2023.

The latest developments

Just over a month ago, the National Marine Fisheries Service (NMFS) agreed to gut future lease sales and severely restrict Gulf of Mexico oil & gas operations as part of a settlement with a group of Enviro-Marxist terrorist organizations.

On August 17, 2023 BOEM issued an NTL (Notice to Lessees and Operators) implementing the arbitrary and unlawful restrictions outlined in the Rice’s whales settlement.

The NTL is allegedly temporary and voluntary, while the “Bureau of Safety and Environmental Enforcement (BSEE) and BOEM are engaged in reinitiated consultation with the National Marine Fisheries Service (NMFS) on the 2020 Biological Opinion.” However, there are no more lease sales scheduled after Sale 261; nor has BOEM issued a new 5-year leasing plan, since Biden occupied the White House. The laws require them to issue a 5-year leasing plan and to continue holding lease sales.

“Circumvents law and ignores science”

For Immediate Release: Monday, August 21, 2023
NOIA Contact: jwilliams@noia.org

NTL on Rice’s Whale Circumvents Law and Ignores Science, Will Have Far Reaching Impacts on Gulf of Mexico

Washington, D.C. – National Ocean Industries Association (NOIA) President Erik Milito issued the following statement after the Bureau of Ocean Energy Management (BOEM) issued a Notice to Lessees (NTL) with recommended restrictions on ongoing industry activities within the expanded Rice’s Whale habitat area. BOEM delayed issuance of the NTL from last Friday’s deadline.

“This decision by the Biden Administration does an end-around legal requirements and the public process, imposing unwarranted restrictions on U.S. energy production at a time of continued inflation with prices rising at the pump for consumers. The NTL, coupled with the broader Stipulated Stay Agreement, poses a barrier to America’s energy production capabilities within a region that not only sustains hundreds of thousands of high-paying jobs but also yields some of the world’s least carbon-intensive barrels.

“Despite lacking ample scientific evidence to support such extensive bans on operations, the agreement targets the domestic offshore oil and gas industry. The Stipulated Stay agreement ignores the best science, contravenes Congress’ explicit directives in enacting the Inflation Reduction Act, and threatens America’s energy independence.

“Moreover, the federal government is moving forward to expand these protections to other ocean users and industries through the proposed designation of critical habitat for the Rice’s Whale that will establish a restricted pathway through the entirety of the Gulf of Mexico, imposing disruptions to the full Gulf Coast economy – home to numerous strategic national ports – and reverberating throughout the whole U.S. economy.

“Among other things, making areas off-limits, imposing speed restrictions, and limiting transit at night and times of low visibility will impact the ability of the offshore energy industry to explore, construct, and develop energy projects in the Gulf of Mexico. The restrictions imposed by the lease stipulations and the NTL jeopardizes the vast concert of vessels working in the Gulf of Mexico and will very likely lead to an increase in the number of vessels at sea at a given time, increasing traffic, risk, and overall emissions. The proposed restrictions would potentially eliminate or hamper safely established and efficient activities in the Gulf of Mexico.

“The Rice’s whale is currently afforded protections under both the Endangered Species Act and the Marine Mammal Protection Act. Expanding the Rice’s whale habitat to include areas where there is only a negligible or no presence at all will dilute conservation resources that should be going towards protecting actual habitat areas. “Sue and settle” or “regulation by litigation” fails to respect both environmental preservation and the economic vitality that the energy sector supports.”


National Offshore Industries Association

In response to this, most recent, unlawful effort by the Biden maladministration to shut down offshore drilling, the State of Louisiana, the American Petroleum Institute (API) and Chevron USA have filed a lawsuit in the United States District Court for the Western District of Louisiana Lake Charles Division. This is in the 5th Circuit, where the oil & gas industry has won lawsuits over regulatory malfeasance. The 5th Circuit is overseen by Supreme Court Justice Samuel Alito. If there’s a court where this arbitrary and capricious action will be immediately vacated, it’s the 5th Circuit.

Among the restrictions is the “arbitrary and unlawful last-minute changes by the Bureau of Ocean Energy Management (‘BOEM’) to the terms of Lease Sale 261, a lease sale under the Outer Continental Shelf Lands Act (‘OCSLA’) covering much of the western and central Gulf of Mexico that Congress has instructed must occur by September 30, 2023”. These last-minute changes include the removal of about 6 million acres, in the heart of the most prolific part of the Gulf of Mexico from Lease Sale 261.


The arbitrary-or-capricious test is a short-hand term for the scope-of-judicial-review provision in section 706(2)(A) of the APA directing reviewing courts to invalidate agency actions found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

This test applies to all agency action, specifically the review of the factual basis for agency rulemaking. In this context, reviewing courts have overturned agency rules if the underlying policy judgments, reasoning, or asserted factual premises of the action are so unreasonable as to be arbitrary.

A different test, the “substantial evidence” test, is required by the APA to be used in decisions made after formal hearings (i.e., formal adjudications and formal rulemakings). But court interpretations of these two tests have indicated that there is not much difference between their application.


Can you say arbitrary and capricious?

The existing NMFS biological opinion is that the Rice’s whales core habitat area is the black/yellow dashed outline on the map below:

The Rice’s whales core habitat area is in the Eastern Gulf of Mexico, where oil & gas leasing has been largely prohibited for decades. The dark blue strip, along the continental slope of the Western and Central Gulf of Mexico is what has been unlawfully removed from Lease Sale 261. The only purpose of these new restrictions is a continuation of the Biden maladministration’s unlawful efforts to shut down oil & gas operations in the Gulf of Mexico. This regulatory malfeasance is arbitrary and capricious, with malice aforethought.

API Press Release

API, State of Louisiana, Chevron U.S.A. Inc. Challenge Lease Sale 261 Final Notice of Sale

202.682.8114 | press@api.org

WASHINGTON, August 24, 2023 – The American Petroleum Institute (API) today joined with the State of Louisiana and Chevron U.S.A. Inc. in filing a challenge to the Department of the Interior (DOI) Bureau of Ocean Management’s (BOEM) Final Notice of Sale for Lease Sale 261. Today’s challenge follows BOEM’s announcement yesterday to hold the final offshore lease sale mandated by the Inflation Reduction Act, but with significantly reduced acreage and severe restrictions on oil and natural gas vessel traffic. 

“Today we’re taking steps to challenge the Department of the Interior’s unjustified actions to further restrict American energy access in the Gulf of Mexico,” said API Senior Vice President and General Counsel Ryan Meyers. “Despite Congress’ clear intention in the Inflation Reduction Act, the Biden administration has announced a ‘lease sale in name only’ that removes approximately 6 million acres of the Gulf of Mexico from the sale and adds new and unjustified restrictions on oil and natural gas vessels operating in this area, ignoring all other vessel traffic. Together with the State of Louisiana and Chevron U.S.A. Inc., we intend to use every legal tool at our disposal to challenge these actions.”

“Once again, Joe Biden is unlawfully attempting to kill both Louisiana jobs and affordable energy for all Americans,” said Louisiana Attorney General Jeff Landry. “We are yet again taking the President to court, where we trust the rule of law will be followed and Biden’s bureaucrats will be defeated.” 

Background on the Five-Year Program for Federal Offshore Leasing:

  • For 45 years, the Interior Department has been required to prepare a five-year offshore leasing program that will best meet America’s energy needs for the ensuing five-year period, detailing a schedule for regular oil and natural gas lease sales, including in the Gulf of Mexico.
  • It has been more than one year since the Department of the Interior allowed the five-year program for federal offshore oil and natural gas leasing to lapse with no immediate replacement. 
  • The U.S. Gulf of Mexico produces some of the lowest carbon intensity barrels in the world. Constrained production in this basin could be replaced by higher carbon intensity barrels from elsewhere in the world. 
  • According to the U.S. EIA, Gulf of Mexico federal offshore oil production accounts for 15% of total U.S. crude oil production and federal offshore natural gas production in the Gulf accounts for 5% of total U.S. dry production. 
  • Over 47% of total U.S. petroleum refining capacity is located along the Gulf coast, as well as 51% of total U.S. natural gas processing plant capacity. 
  • An agreement announced last month proposed operating “recommendations” that would impose significant burdens on operators and increase emissions from vessels forced to operate at suboptimal speeds or idle outside the restriction areas.  
  • Adopting the nighttime and low visibility restrictions could cut transit windows to approximately 50%– requiring industry to balance the government’s recommended practices against safely and efficiently servicing ongoing operations. 
  • These restrictions would unfairly single out oil and gas traffic in an area that is one of the most used maritime areas in U.S. waters by a variety of industries. Thousands of vessels pass through this area every day.

API represents all segments of America’s natural gas and oil industry, which supports nearly 11 million U.S. jobs and is backed by a growing grassroots movement of millions of Americans. Our approximately 600 members produce, process and distribute the majority of the nation’s energy, and participate in API Energy Excellence®, which is accelerating environmental and safety progress by fostering new technologies and transparent reporting. API was formed in 1919 as a standards-setting organization and has developed more than 800 standards to enhance operational and environmental safety, efficiency and sustainability.


American Petroleum Institute

Give ’em Hell Joe!

Manchin rips administration over Gulf of Mexico leasing decision

  • by Matt Harvey MANAGING EDITOR
  • Aug 25, 2023

WASHINGTON (WV News) — The Biden administration’s decision to reduce a Gulf of Mexico oil and gas lease sale from about 73.4 million acres to 67 million acres caught the ire of U.S. Sen. Joe Manchin, D-W.Va. and chairman of the U.S. Senate Energy and Natural Resources Committee.


“This administration continues to kowtow to radical environmentalists at the expense of American energy security and costs to American families,” Manchin said.

“Let me be clear, the exclusion of more than 6 million productive acres from the upcoming offshore oil and gas lease sale in the Gulf of Mexico based on a settlement reached in the name of protecting Rice’s whale while conveniently only targeting oil and gas is yet another example of this administration’s intentional undermining of the strong energy security provisions in the Inflation Reduction Act,” he said.

“Notably, they have issued no such blanket ban for future offshore wind in this area. Today’s announcement comes months after the Department of the Interior put in black and white that they were choosing climate over energy security during the Alaska lease sale. The IRA required lease sales to get oil and gas leasing back on track to reduce the cost for working families to cook, heat their homes and fill their gasoline tank,” Manchin said.


WV News

And now for the fake news

The general media response to this lawsuit is clueless, if not intentionally dishonest.

  • Oil giants are lawyering up against an endangered whale: Chevron, the API, and the state of Louisiana are fighting a White House attempt to protect the Gulf of Mexico (Quartz)
  • Oil companies sue U.S. over Gulf auction changes meant to protect whale (Reuters)
  • Oil industry sues Biden administration for shrinking Gulf lease to protect endangered whale (The Hill)

This is not about protecting endangered whales. They are already protected. This is about using the administrative state to slowly strangle an industry that does not support its agenda.

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Rud Istvan
August 28, 2023 10:28 am

It appears on the facts that the pushback will be successful.
Can Gov people be sued for intentionally not following the laws they are sworn to uphold? I am thinking required lease sales and 5 year lease plans courts then order done per law, the failure to do so would then be contempt of court for which the usual remedy is jail until compliance.

Reply to  David Middleton
August 28, 2023 4:36 pm

Many politicians around the world are dishonest in trying to restrict oil and gas exploration off shore .
The use of fossil fuel is the greatest feature of our modern world but some how these collective clowns want to restrict oil and gas exploration.
Jacinda Ardern our now departed Prim Minister tried the same destructive tactic banning any more oil .and gas exploration around New Zealands coast .
History in a few years time will show how these policies have damaged the economies of their countries for no gain but a lot of pain .

Dennis Gerald Sandberg
Reply to  David Middleton
August 28, 2023 5:05 pm

David, Don’t get to excited about a lease sale anywhere there’s sufficient reserves. Clinton demonstrated that there isn’t isn’t a law a democrat administration doesn’t like that can’t be circumvented. All that’s required is a suspension of any sense of ethics. They’ve been suspended ever since.

More Soylent Green!
Reply to  Rud Istvan
August 28, 2023 10:53 am

Can Gov people be sued for intentionally not following the laws they are sworn to uphold”

They can be indicted without actually committing a crime, so why not? It just depends on the political party of the defendant(s), the plaintiff(s) and the judge.

Curious George
Reply to  Rud Istvan
August 28, 2023 11:51 am

Law? What law? No law applies to Joe Biden and his friends.

CD in Wisconsin
Reply to  Curious George
August 28, 2023 1:28 pm

Is this an end run around the law or an attempt to place themselves above it?

As I have stated in a previous thread, what is happening here is an arrogant and egotistical belief among Democrats and their eco-activist allies that the Constitution and the law are to be subordinated to the party and environmental ideologies. They have licensed themselves to do so whenever is suits them.

The danger involved in doing this should not be hard to see for anyone having a healthy respect for the law and the Constitution. This is arguably and somewhat consistent with Marxists and Communists who have historically demonstrated a lack of respect for basic human rights.

I fully recognize the need for a balance between our energy needs and environmental protection both on land and at sea. From the looks of it though, what is apparently missing from the [Let’s Go] Brandon administration is an understanding that the balance needs to be struck between the two within the confines of the law rather than within one’s ideology.

Len Werner
August 28, 2023 10:34 am

A few years ago we had the poster-boy of oil spills in the Gulf, the Deepwater Horizon explosion, releasing a spill of just under 5 million barrels of oil. That prompted me to look up what the natural leakage of oil into the Gulf is; estimates run to 0.5 million barrels per year. Deepwater Horizon released 10 years worth of natural release.

The next question is ‘how long has this been going on?’. Well, a reasonable first guess would be since the planetary continental distribution has been in the configuration it is in now, which would be since the early Cenozoic…say 50 million years? How much natural seepage is that?

0.5E6 X 50E6 = 25E12. 25 trillion bbl.

Being a scientist I invite corrections.

Len Werner
Reply to  David Middleton
August 28, 2023 12:21 pm

Always revealing, the concepts of ‘perspective’ and ‘context’. Even halving my WAG to, say, San Juan Caldera emplacement time, that’s still 6 trillion barrels (I’ll leave it to readers to divide 5 million into that and express it as a percentage to see for themselves how significant Deepwater Horizon wasn’t).

But the whales–why are they there? Like me at dinner time, they’re where the food is. So where is all that seeped oil?–something ate it, something ate them–and so on up to the whales. No wonder whale oil burns.

Oil represents a concentration of energy; where ever that occurs in the universe something will evolve to take advantage of it–like we evolved because of a thermonuclear fusion/fission reaction 8 light-minutes away. What could be surprising that we also recognize the energy density of crude oil?–and try to get some of it for our own use before it leaks away and the bacteria eat it all.

And ain’t that all just the blatantly obvious…even (especially?) to the Cable Guy?

CD in Wisconsin
Reply to  David Middleton
August 28, 2023 2:07 pm


This is fascinating (as Spock would say). I didn’t know this. Are there any links to websites that contain data/information on natural seepage and how much is leaked out each year?

It would be much appreciated because I would like to save it for future reference.

Rud Istvan
Reply to  CD in Wisconsin
August 28, 2023 2:52 pm

I have a little bit of footnoted information on nat gas seepage in GoM in essay Ice that Burns in ebook Blowing Smoke. It turns out that virtually all the observed/sampled methane clathrate on the GOM floor forms from underlying natural gas reservoir seepage. Is used to target geophysical exploration stuff looking for the underlying nat gas reservoir fields.
No practical way to harvest the exposed methane clathrate itself.

CD in Wisconsin
Reply to  Rud Istvan
August 28, 2023 3:04 pm

I have a downloaded copy of your book Blowing Smoke. I will check it. Thanks.

Steve Case
Reply to  Len Werner
August 28, 2023 11:07 am

Don’t forget the 1979 IXTOC I Mexican Gulf Oil
blowout that leaked from June until March 1980.

Ron Long
Reply to  Len Werner
August 28, 2023 4:41 pm

Len, without knowing the exact numbers associated with natural oil leaks, I know they are common and even numerous. When I interacted with the CONOCO Research Group, at Ponca City, Oklahoma, they developed an airborne UV laser system that fluoresced the oil droplets floating in the ocean, as an aid to exploration and lease block assessment.

Len Werner
Reply to  Ron Long
August 28, 2023 9:12 pm

Yes, so much has been found by recognizing seeps–in California, the Brea and Petrolia discoveries, in Canada the oil rising to the surface along the MacKenzie River around Norman Wells, and of course Peter Pond being led by natives to the oil seeping into the Athabasca river from the Alberta oil sands–which are probably a leak from the north end of the Leduc Trend. And we have another Petrolia in Ontario, also the site of what were described as ‘oil springs’, not seeps, where Canada’s first oil well was drilled.

Compared to nature, the oil industry is not even a bit player in oil spills, either on land or in the water–but what’s the worry, nothing could be more organic, and there is no place where it leaks to surface that life hasn’t made use of it, including man since it was first discovered by natives. Despite all that, oil certainly seeps out of the ocean floor in the Gulf at orders of magnitude greater quantities than the recognition that it does will ever seep into an environmentalist’s acceptance.

Reply to  Len Werner
August 29, 2023 5:19 pm

… and Jeb, whilst shootn at some food, found a nice spring.

David Wojick
August 28, 2023 10:37 am

Interestingly tomorrow (Aug 29) is BOEM’s first Gulf offshore leases sale. Hypocrisy?

Reply to  David Middleton
August 28, 2023 2:02 pm

You have it backwards. The boats aren’t hitting the whales, the whales are hitting the boats.
Whales can recognize the boats that are involved in oil drilling and since whales are a part of nature, they are naturally opposed to oil drilling that is quickly killing the planet.
So being the wise and kind creatures that they are, the whales are sacrificing themselves by ramming the boats in an attempt to sink them.

The whales know that boats servicing wind farms are trying to save the planet so they leave those boats alone.

How do the whales know which boats are which? Did I mention that whales are wise?


Clyde Spencer
Reply to  MarkW
August 29, 2023 7:48 pm

And their dying words are, “Thanks for all the fish. It was good while it lasted.”

August 28, 2023 10:42 am

David – Can we use the lawsuit madness to advantage. A lawsuit over the numerous whale kills in last 9 months on Atlantic coast likely resulting from the soundings (and boring, drilling, or pile driving?) associated with giant offshore wind projects in New England and off my coast of Virginia.

August 28, 2023 11:36 am

What a sad joke. In the Atlantic off the north east coast endangered whales are dying in significant numbers as a result of the construction of off shore windmills for electricity. Thousands of eagles and other raptor are dying from on shore windmills plus millions of bats. Not a peep out of Biden, or his cronies.

Curious George
Reply to  terry
August 28, 2023 12:14 pm

What makes you think that offshore windmills don’t kill birds?

Reply to  Curious George
August 28, 2023 2:18 pm

They do – it’s just suppressed from MSM news

August 28, 2023 11:55 am

And what about whale / dolphin etc deaths by off shore wind farm sonar surveys and LF infrasound? Dozens washed up dead, yet, nothing, zilch – nothing to see there, move along

Russell Cook
August 28, 2023 1:45 pm

…. the American Petroleum Institute (API) and Chevron USA have filed a lawsuit in the United States District Court for the Western District of Louisiana Lake Charles Division ….

This is the same outfit headed currently by Mike Sommers, who was confronted by Rep Ilhan Omar at the Oct 2021 House Oversight committee witch hunt hearing against fossil fuel executives. When she hit him with the literally worthless “victory will be achieved” memo set that’s been used to castigate API for 25 years as ‘running disinformation campaigns,’ he had no clue how to respond to Rep Omar beyond saying he didn’t work at API in 1998. The opportunity for API to figure out what those memos were was handed to them months before when Sommers was subpoenaed to appear before the House Oversight committee.

I cover where that worthless memo set implodes as evidence to indict the fossil fuel industry at my blog, including how Sommers could have risen to the opportunity to deliver a beatdown to anyone attempting to clobber API or anyone else with that memo set. It’s nothing but a set of basic truisms about what happens when the public fully understands all of the issue; truisms that could be mirror-flipped to suit Greenpeace.

What we absolutely need is for the fossil fuel industry leaders to do is ditch their pointless politically-correct position on AGW and grow a spine, first to drive a stake through the heart of the accusation that they collude with skeptic scientists to push CAGW disinformation, and then to demonstrate that they appreciate pure science by citing climate realists scientists.

August 28, 2023 1:57 pm

I’ve been told that the natural seepage rate in and around Los Angeles decreased after oil drilling started in that area.
If this is true, would drilling for oil in the Gulf also reduce the rate of seepage in the Gulf, or are the deposits being exploited to deep under the earth to seep?

August 28, 2023 2:02 pm

I have so little respect for the majority of these government agencies I think a good share of them could be shut down and the country would be nothing but better off. In the meantime the the leaders of any agency who’s department has broken the law or interfered with the lawful pursuit of a company or individual should be fired along with all of his lieutenants and black balled from ever holding another government position. In addition they should be banned from ever dealing with the government no matter where or for whom they are working for. Do this and all this back door crap and shenanigans will stop.

August 28, 2023 2:13 pm

I wish climate realists, oil, gas & nuclear generators etc would take a combined climate change / CO2 case to court to once and for all smash the whole deceitful, poor science, tweaked data, flawed computer modelling, money grabbing alarmism
There are increasing numbers of academics, scientists etc who would give expert evidence
The whole deceitful alarmist hoax could be exposed in own instant

August 28, 2023 4:13 pm

It’s about time!

August 29, 2023 3:27 am

Where are the lawsuits to stop offshore wind power for whale deaths. wind power definitely kills endangered bird and bat species. Why was the 25 year pass given wind by Obama not overturned in court.

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