Examples of delays caused by the current MMPA

Application of the incidental take authorization provisions of Section 101(a)(5)(A) and (D) of the Marine Mammal Protection Act (“MMPA”) have delayed and impeded otherwise lawful activities, wasted countless taxpayer dollars, and given rise to excessive litigation by environmental activists using the MMPA as a tool to prevent and frustrate lawful energy exploration geoscience activities. The following non-exclusive list of examples illustrates the breadth and magnitude of these problems.

• In 2018, a seismic exploration company submitted a petition for a two-year incidental take regulation (“ITR”) under MMPA Section 101(a)(5)(A) related to a planned pre-lease seismic survey on the Coastal Plain of the Arctic National Wildlife Refuge. The U.S. Fish and Wildlife Service (“FWS”) delayed and ultimately stymied issuance of the requested ITR based on its insistence on using an unproven and unsupported model that egregiously overestimated the likelihood of impacts to polar bears. Subsequently, in 2020, the company requested an incidental harassment authorization (“IHA”) under MMPA Section 101(a)(5)(D) for its re-planned Coastal Plain seismic survey. FWS stopped work on the IHA without a legal or factual basis and the survey has not occurred to this day.

• Since 1993, FWS has issued five-year ITRs applicable to oil and gas activities on Alaska’s North Slope. These ITRs have been repeatedly challenged in court by environmental activists, resulting in four different lawsuits in the Alaska district court and four appeals to the Ninth Circuit. These efforts to use the MMPA as a tool to impede oil and gas activities have been almost entirely rejected by the courts but have nevertheless caused needless, significant expenditures of time, resources, and public tax dollars.

• In 2015, FWS issued a letter of authorization (“LOA”) under an ITR to a company related to planned exploration drilling in the Chukchi Sea off the coast of Alaska. FWS included an unsupported and unreasonable condition in the LOA that prevented the drilling program from being carried out as planned.

• In 2022, a seismic exploration company submitted a request to FWS for an ITR related to planned seismic surveys on Alaska’s North Slope. FWS has repeatedly delayed the processing of this request and still has not issued a decision.

• In 2014 and 2015, multiple exploration companies applied for IHAs related to planned seismic surveys off the Atlantic coast in areas that had not been surveyed since the 1980s. The National Marine Fisheries Service (“NMFS”) flagrantly delayed the IHAs, which were not issued until 2018. This delay contributed to the ultimate shelving of the planned surveys.

• In 2021, a court found fault with an otherwise lawful ITR for oil and gas activities in Cook Inlet on the sole basis that NMFS failed to evaluate the alleged effects of sound produced by tug boats. This led to the court’s partial vacatur of the ITR as well as the payment of public tax dollars from NMFS to the environmental activist plaintiffs to reimburse them for their attorney fees.

• In 2002, the Bureau of Ocean Energy Management (then Minerals Management Service) submitted a petition to NMFS for an ITR applicable to Gulf of America (then Gulf of Mexico) oil and gas activities. After multiple agency-caused and litigation-caused delays, NMFS issued the requested ITR in 2021 (19 years later). NMFS’s subsequent mal-administration of the ITR resulted in significant delays of seismic surveys and the ITR was so flawed that NMFS had to amend it in 2024.

• In 2006, a company seeking to perform a seismic survey off the coast of Alaska was forced to obtain an emergency court order staying the applicability of unlawful conditions that NMFS arbitrarily included in an IHA that would otherwise have prevented the survey from occurring as planned.

• The U.S. Navy has lost multiple lawsuits in which environmental activists have successfully argued that MMPA incidental take authorizations issued by NMFS to the Navy are unlawful. This has frustrated and impeded the Navy’s ability to timely conduct essential defense preparation activities.