It has been a busy past week for the Endangered Species Act (ESA). On March 30, 2026, a United States District Court issued a summary judgment opinion invalidating four provisions of the current ESA Section 7 regulations and directing the government to use the pre-2019 versions of those regulations in their stead. And on March 31, 2026, for the first time in the history of the ESA, the Endangered Species Committee, colloquially referred to as the “God Squad,” granted an exemption from the requirements of ESA section 7 on national security grounds for all oil and gas exploration, development, and production activities in the Gulf of America/Mexico (“Gulf”). Each of these developments will have immediate impacts on certain industry stakeholders and the regulated community as a whole.
I. ESA Regulations
In 2019, during the first Trump Administration, the U.S. Fish and Wildlife Service (FWS) and National Oceanic and Atmospheric Administration’s National Marine Fisheries Service (NMFS) (collectively, “the Services”) promulgated comprehensive revisions to the ESA regulations governing the procedures for implementing ESA Section 4 (listing and critical habitat designation) and Section 7 (interagency consultation) (“2019 Regulations”). After legal challenges resulted in a remand without vacatur, the Biden Administration issued new regulations in 2024 (“2024 Regulations”). While the 2024 Regulations made some changes, they also retained in part and carried forward some of the revisions contained in the 2019 Regulations. Environmental NGOs promptly challenged the 2024 Regulations, focusing specifically on two Section 4 provisions and four Section 7-related provisions that were largely retained from the 2019 Regulations.[1] On March 30, 2026, the United States District Court for the Northern District of California granted summary judgment in favor of the plaintiffs on the Section 7 challenges and vacated the four ESA Section 7 regulatory provisions. The Court upheld the Section 4 regulatory revisions as well as the Services’ reliance on categorical exclusions under the National Environmental Policy Act (NEPA).[2]
The most significant holdings for the regulated community involve the Court’s vacatur of three ESA Section 7 related regulatory provisions.[3]
- “Effects of the Action” Definition (50 CFR § 402.02). In assessing the effects of an action for purposes of the jeopardy or adverse modification analysis, the 2024 regulation defines “effects of the action” as: all consequences to listed species or critical habitat that are caused by the proposed action, including the consequences of other activities that are caused by the proposed action but that are not part of the action. A consequence is caused by the proposed action if it would not occur but for the proposed action and it is reasonably certain to occur.[4]
The Court found that the “reasonably certain to occur” standard improperly allowed the Services to exclude scientifically supported but uncertain impacts from the jeopardy analyses. The Court found that this violates the ESA’s “best available science” mandate and the statutory requirement to assess whether agency actions are “likely” to jeopardize listed species or critical habitat.[5]
- Reliance on Mitigation Measures in the Proposed Action (50 C.F.R. § 402.14(g)(8)). The 2024 Regulations require the Services when consulting with an action agency and preparing a biological opinion to “give appropriate consideration to any beneficial actions as proposed or taken by the Federal agency or applicant.” The 2024 Regulations also retained language from the 2019 Regulations providing “[m]easures included in the proposed action or a reasonable and prudent alternative that are intended to avoid, minimize, or offset the effects of an action are considered like other portions of the action and do not require any additional demonstration of binding plans.”[6] This was added to the regulations to clarify that if mitigation or beneficial actions are included as part of the proposed agency action or reasonable and prudent alternative (“RPA”), the Services will consider this as a commitment to carry out these measures in the same manner that Services considers the action agency’s commitment to carry out other aspects of the proposed action. The Court held that this is inconsistent with ESA Section 7’s command to agencies to “insure” that their actions are not likely to jeopardize listed species. The Court found instead that to be relied upon in the jeopardy analysis, the ESA requires mitigation measures to be binding on or guaranteed by the agency or otherwise reasonably certain to occur.[7]
- “Destruction or Adverse Modification” Definition (50 CFR § 402.02). The 2024 Regulation retained the 2019 Regulation’s definition of “destruction or adverse modification” of designated critical habitat as “a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species.”[8] The phrase “as a whole” was added to the regulation to make clear that in assessing adverse modification, the Services distinguish between modifications of critical habitat that have biological significance versus those activities that may technically modify critical habitat but have little or no biological significance. This approach was consistent with past practice. The Court found that that this language “improperly permits piecemeal habitat degradation, contrary to the ESA’s categorical prohibition on adverse modification of designated critical habitat.”[9]
As to remedy, the Court remanded and vacated these specific regulatory provisions and expressly reinstated the versions of the regulations in effect before the 2019 Regulations.[10]
What it Means
There is a threshold question of whether the decision will have nationwide effect (i.e., is district court’s vacatur applicable across the country). While there has been a lot of debate on whether a single district court can vacate a rule across the entire country, the safer practice is to assume that these specific rules have been vacated nationwide.
The ultimate effect of vacating these rules is difficult to gauge. The Court directs the Services to return to the pre-2019 versions of the relevant regulations. However, the reality is that the specific 2019 revisions at issue generally clarified and/or codified existing practices under the previous versions of the regulations in effect before the 2019 Regulations. Thus, it is not entirely clear what the delta between application of the 2019/2024 Regulations and the pre-existing rules might be in practice.
For instance, the pre-existing definition of “Effects of the Action” contained the same phrase that the Court faults here: “Indirect effects are those effects that are caused by the proposed action and are later in time but still are reasonably certain to occur.”[11] For mitigation measures, the pre-2019 practice already was to include such measures in the proposed action. It may be that the record will need to develop the agency’s or applicant’s commitment to undertake identified mitigation measures more robustly. But the scope of the measures may not be affected. Similarly, under the Court’s ruling the definition of “destruction or adverse modification” of “critical habitat” will return to the pre-2019 version — “a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of a listed species” — without inclusion of the phrase “as a whole”.[12] But the preamble to the pre-existing rule explained that even under that rule, the adverse modification analysis places an emphasis on the value of the designated critical habitat “as a whole” for the conservation of a species.[13] Thus, moving forward, the Services will need to address how to reconcile the Court’s opinion with application of the prior rules that have been expressly reinstated, especially in those cases where the prior rules incorporate many of the same concepts as the now-vacated rules. But it may be that a return to the prior regulatory regimes may not result in vastly different outcomes.
With that said, stakeholders need to take account into the vacatur of these rules and ensure that consultations moving forward are consistent with the prior reinstated rules.
II. Endangered Species Committee Section 7 Exemption for Gulf Oil and Gas Activities.
On March 31, 2026, the ESA “Endangered Species Committee” (“God Squad”) convened for the first time since 1992 to consider a national security exemption from the ESA’s requirements for all oil and gas exploration and development activities associated with BOEM’s and BSEE’s Outer Continental Shelf Oil and Gas Program.[14] The ESA provides that “[n]otwithstanding any other provision of this chapter, the Committee shall grant an exemption for any agency action if the Secretary of Defense finds that such exemption is necessary for reasons of national security.”[15] The Committee is comprised of the Secretaries of the Department of the Interior, Army, and U.S. Department of Agriculture; the Environmental Protection Agency and NOAA Administrators; and the Chair of the Council of Economic Advisors. They were joined at the meeting by Secretary of War Hegseth.
Over the years, BOEM and BSEE have engaged in ESA Section 7 consultation with both NMFS and FWS over the effects of the Gulf oil and gas program on ESA listed species, with the latest consultation culminating in biological opinions and consultation documents issued by NMFS and FWS in 2025.[16] By letter dated March 13, 2026, Secretary Hegseth made a finding that it was necessary to exempt all BOEM and BSEE Gulf oil and gas activities from the ESA, citing ongoing litigation over the current biological opinions which, if successful, could halt oil and gas production in the Gulf critical to the nation and military. At the meeting, the Committee voted unanimously to grant the exemption. Notably, both Secretary Hegseth’s finding and the Committee Order granting the exemption make clear that mitigation and protection measures contained in BOEM’s and BSEE’s program as proposed will continue to be followed. This is the first time in the history of the ESA that the national security exemption has been used.
What it Means
Under the exemption, all BOEM and BSEE Gulf oil and gas exploration and development activities in the Gulf are now not required to comply with the ESA section 7 consultation requirements. In addition, any incidental “take” of a listed species resulting from actions undertaken by an agency or operator under the program will not be considered a prohibited “take” under the ESA.[17] This exemption applies for the duration of the current BOEM and BSEE oil and gas program (identified by NOAA as through 2029). Significantly though, because BOEM and BSEE’s program incorporates certain protective, avoidance or minimization measures, the agencies and operators will be expected to continue to comply with such measures under the exemption Order (e.g., vessel speed limits). Thus, most ongoing operations should remain unchanged from what they are today.
The most significant immediate changes brought about by this action are: (1) operators will be relieved from the additional protective measures that were imposed in 2025 by NOAA’s reasonable and prudent alternative, which had required development and implementation of a real-time vessel/ whale tracking technology and program; and (2) to provide regulatory certainty by preempting ongoing and future litigation by NGOs that seeks to vacate the biological opinions, which would risk shutting down operations, and/or imposing burdensome injunctive measures on Gulf oil and gas activities. There presently are pending challenges by environmental NGOs to both the NOAA and FWS biological opinions that presumably the government will now argue are moot.
The Order is effective immediately, but the exemption has already been judicially challenged with other possible judicial challenges to come.
The Committee Exemption Order can be found here.
[1] Center for Biological Diversity, et al. v. DOI, No. 24-4651 (N.D. Cal.).
[2] Id., 2026 WL 898264 (March 30, 2026). The Court also denied the Services’ request to remand or to stay the litigation pending finalization of the Services’ November 21, 2025 proposed rules to again revise the ESA Section 4 and 7 regulations. Id. at *7-*9.
[3] The Court also invalidated the 2024 Regulation’s change to the Section 7 consultation re-initiation regulation, 50 CFR § 402.16. That revision had removed the Services’ obligation to request reinitiation of consultation (leaving it solely to action agencies). The Court upheld the ESA Section 4 regulatory revisions (1) defining “foreseeable future” in the context of assessing whether a species is threatened and (2) expanding the circumstances where the Services may conclude that designation of critical habitat is “not prudent.” Id. at *19-*23.
[4] 50 CFR § 402.02 (emphasis added).
[5] Center for Biological Diversity, et al. v. DOI, 2026 WL 898264 at *11-*15.
[6] 50 C.F.R. § 402.14(g)(8).
[7] 2026 WL 898264 at *16.
[8] 50 C.F.R. § 402.02 (emphasis added).
[9] 2026 WL 898264 at *17-*18.
[10] Id. at *25-*25.
[11] 50 CFR § 402.02 (1986).
[12] 50 CFR § 402.02 (2016).
[13] 81 Fed. Reg, 7214, 7222 (Feb. 11, 2016).
[14] For additional detail on the Committee process, see our prior client alert here.
[15] 16 U.S.C. § 1536(j).
[16] NMFS issued its biological opinion on May 20, 2025. FWS issued its biological opinion on April 20, 2018, and completed reinitiated ESA consultations on March 18, 2025.
[17] 16 U.S.C. § 1536(o)(1).
