Trump ‘God Squad’ Oil Exemption Wades Into Murky Legal Territory

The Trump administration’s “God Squad” headed into uncertain legal waters this week when it cited the war in Iran, national security, and litigation threatening oil production to exempt Gulf of Mexico oil and gas development from the Endangered Species Act.

While the panel’s decision Tuesday has already been challenged in court, it’s unclear if the unprecedented decision is even subject to judicial review and if so, whether the administration’s national security claim reflects the intent of Congress, legal observers say.

The decision risks opening the “floodgates” to the Pentagon invoking national security to exempt from the ESA critical minerals mining, onshore oil and gas, or any other industrial activity the Trump administration believes is hampered by endangered species protection, said Parker Moore, principal at Beveridge & Diamond PC in Washington.

“Concerns others have raised for the potential of floodgates to open I don’t think are unreasonable,” he said.

Interior Secretary Doug Burgum on Tuesday convened the Endangered Species Committee, or “God Squad,” for the first time in 34 years. The group, without deliberation, unanimously granted the Pentagon’s request to exempt all oil and gas activities in the Gulf of Mexico from the ESA. The committee is known as the God Squad because it can allow an imperiled species to go extinct.

The committee also included Environmental Protection Agency Administrator Lee Zeldin, Agriculture Secretary Brooke Rollins, Army Secretary Dan Driscoll; Pierre Yared, acting chair of the Council of Economic Advisers; and Neil Jacobs, administrator of the National Oceanic and Atmospheric Administration.

Defense Secretary Pete Hegseth said environmentalists’ pending litigation against Gulf development threatens to shut down all oil and gas operations there, risking national security and the US economy because of global oil supply risks associated with the war in Iran.

Environmentalists, including in an amended complaint challenging the decision filed Tuesday by the Center for Biological Diversity, say they worry oil and gas development in the Gulf threatens imperiled sea turtles and the Rice’s whale, among other species. Only about 50 of the whales remain on Earth.

Judicial Review

Hegseth cited Section 7(j) of the ESA, which says plainly: “Notwithstanding any other provision of this Act, 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.”

The lack of a mention of judicial review suggests Congress considered the potential for Hegseth’s national security risk determination and gave the God Squad no discretion to deny the Pentagon’s request for an exemption, Moore said.

“It’s not obvious to me that Congress contemplated there being judicial review of a national security risk-based exemption,” he said, adding that committee decisions under a different section of the ESA are reviewable, but not necessarily those made under Section 7(j).

But the Justice Department is already on record in a March 25 filing in the Center for Biological Diversity’s litigation saying the committee’s actions are reviewable in a US court of appeals, said Seth Barsky, partner at Bracewell LLP and former Justice Department environmental litigator.

“I do think there’s an initial question as to which court would have jurisdiction to review this,” he said. “You can expect the government to move to dismiss and say it’s in the wrong court.”

The Center for Biological Diversity’s lawsuit is pending in the US District Court for the District of Columbia.

Robert Anderson, an emeritus law professor at the University of Washington School of Law who served as Interior solicitor during the Biden administration, said the God Squad decision is reviewable.

“It’s final agency action under the Administrative Procedures Act and thus subject to review, although the government will likely argue that this is up to the total discretion of the Secretary of Defense,” he said.

If litigation challenging the committee’s decision is allowed to proceed, it would be breaking entirely new legal ground because no ESA exemption has ever been granted for national security reasons, said Rebecca Hays Barho, a partner at Nossaman LLP in Austin who has litigated ESA issues on behalf of developers and local governments.

It’s also unclear if Hegseth’s national security threat findings reflect the intent of Congress, “because the text of ESA section 7(j) is so sparse,” she said in an email.

Fears of Litigation

Judicial review is likely to be a hurdle for environmental plaintiffs, even as courts are beginning to doubt the administration’s legal arguments and claims on various issues, said Andrew Mergen, a Harvard Law School professor who was a Justice Department litigator for 33 years.

However, “there is no evidence that the nation’s energy security has ever been placed in jeopardy by litigation or that it would be now,” Mergen said.

“The administration fears that litigation will limit or harm Gulf production but that can only happen if courts enjoin operations,” he said. “This is another example of the Administration’s disrespect for the federal judiciary.”

Hegseth’s grounds for claiming national security risks are unfounded because the ESA has never slowed offshore oil drilling in the Gulf, and it takes many months or years for new wells to be drilled and to begin production, said Melinda Taylor, senior lecturer at the University of Texas at Austin School of Law.

“The administration keeps saying publicly that the energy emergency associated with the war in Iran will be over in a matter of weeks,” she said. “The administration is invoking national security here to avoid complying with the procedural steps that the ESA requires of the God Squad before it grants most exemptions.”

The God Squad only once successfully reduced endangered species protections. The committee in 1979 exempted a Wyoming dam project from the endangered species safeguards for the whooping crane.

The committee’s 1992 decision to exempt the northern spotted owl from certain timber sales didn’t stand because the Clinton administration withdrew its request for the exemption.