Invoking the "God Squad" in a National Energy Emergency

The Endangered Species Act (ESA) was enacted in 1973 to provide various protections for endangered and threatened species. As enacted, it prohibited any activities that would result in "jeopardy" to endangered species, without exception.

In 1978, following a disruption to a major dam project in Tennessee due to a small, endangered fish, the ESA was amended to add an exemption process to the jeopardy prohibition through the actions of the Endangered Species Committee (Committee). Colloquially known as "the God Squad," the Committee consists of the Secretary of the U.S. Department of the Interior Secretary of the U.S. Department of Agriculture, Secretary of the U.S. Army, Chairman of the Council of Economic Advisors, Administrator of the U.S. Environmental Protection Agency, Administrator of the National Oceanic and Atmospheric Administration and representative(s) from the affected state(s) appointed by the President.

The Committee has special authority to exempt a federal action from the requirements imposed by the ESA, even if the federal action may cause a species to go extinct, provided a number of regulatory steps are completed.

Specifically, the ESA requires that formal consultation occurs with U.S. Fish and Wildlife Service (FWS) that leads to issuance of a Biological Opinion (BiOp) resulting in a "jeopardy" finding that cannot be avoided by "reasonable and prudent alternatives."¹ Typically, the reasonable and prudent alternatives are then enacted to avoid jeopardy while allowing the project to move forward.

However, if for whatever reason the reasonable and prudent alternatives cannot be implemented, an application can be made to the Secretary of the Interior for an exemption from the ESA's jeopardy prohibition. The Secretary must then determine that the exemption request meets certain conditions, including that consultation was conducted in good faith.

The Secretary next issues a report to the Committee summarizing the basis for the exemption and holds a hearing on the exemption in consultation with the Committee. Only then can an exemption be granted or denied.

In making the decision, the Committee considers:

• whether there are reasonable and prudent alternatives to the action
• whether the benefits of the action clearly outweigh the alternatives and whether it is in the public interest
• whether the action is of regional or national significance
• whether there has been an irreversible or irretrievable commitment of resources prohibited under the ESA

If five or more Committee members vote in favor of allowing the federal action to proceed, then the requested exemption may be granted and the action may move forward without regard to its consequences on the species in question, but subject to reasonable mitigation and enhancement measures deemed necessary to minimize the adverse effects of the action on the affected species.

Given the impacts that the Committee's decision could have and the many steps that must come before the Committee can convene, invoking the Committee's power is rare. In fact, the Committee has only convened three times since the amendments were adopted more than 45 years ago:²

• In 1978, the Committee considered the Tellico Dam project's threat to the snail darter that led to the 1978 amendments. The Committee denied an exemption and voted in favor of protecting the snail darter species.
• In 1978-1979, the Committee convened to consider another dam project in Wyoming that would jeopardize downstream whooping crane populations in Nebraska. The Committee voted in favor of the project, granting the exemption with conditions required by the ESA.
• In 1992, the Committee convened for the last time to consider an exemption for northern spotted owls found to be jeopardized by proposed timber sales on public lands in Oregon. Though the Committee granted the exemption for some of the sales, the Committee's decision was challenged in federal court and ultimately did not survive legal scrutiny.

Background: Offshore Oil and Gas Activities and the Rice's Whale

There has long been tension between offshore industrial activities and protections of endangered species. Because the Gulf of America is home to thousands of marine species – many of which are listed as endangered or threatened under the ESA such as the Rice's whale – the National Marine Fisheries Service (NMFS) has undertaken multiple consultations relating to federal oil and gas activities in the Gulf. Most recently, NMFS issued a BiOp in 2020, which was challenged in federal court shortly after issuance and ultimately struck down after years of litigation and parallel proceedings. (See Holland & Knight's previous client alert, "Court Strikes Down Key Endangered Species Act Opinion," August 29, 2024.)

After a period of significant uncertainty for the offshore oil and gas industry, NMFS then issued a new BiOp in accordance with the court's decision in 2025. The 2025 BiOp covers the Interior Department's Oil and Gas Program in the Gulf of America from start to finish – lease sale, exploration, production, operation and decommissioning – and imposes stringent conditions and mitigation measures to prevent impacts to listed species, including the Rice's whale.

The Recent God Squad Notice and Challenge

On March 16, 2026, the Interior Department posted a notice to the Federal Register (Notice) that the God Squad would convene on March 31, 2026, to discuss an exemption under the ESA for oil and gas activities in the Gulf of America (Meeting).

The Notice follows President Donald Trump's directive in the January 20, 2025, Executive Order (EO) 14156, Declaring a National Energy Emergency, for the Committee to convene not less than quarterly to consider exemption applications and regulatory reform efforts to address obstacles to domestic energy infrastructure.

The Notice does not specify the exemption applicant but references the Bureau of Energy Management and Bureau of Safety and Environmental Enforcement's Outer Continental Shelf Oil and Gas Program. The Notice also does not specify the species that the application affects, though it is likely that the Rice's whale is the main focus, given the history of tension between oil and gas activities and the Rice's whale. The Meeting will be the fourth time that the Committee has convened in nearly 50 years.

The convening of the Committee is consistent with earlier moves by the Trump Administration to reassess the ESA and how the law interacts with domestic energy production and infrastructure projects. In addition to President Trump's EO, FWS and NMFS have already proposed amendments to ESA regulations that, if adopted, would restore the ESA framework in existence during the first Trump Administration. (See Holland & Knight previous client alert, "Reversing Course for Endangered Species Act: Administration Proposes ESA Regulatory Amendments," November 21, 2026.)

On March 18, 2026, an environmental organization sued the Interior Department in the U.S. District Court for the District of Columbia, arguing that the Notice and upcoming Meeting were unlawful and requested an injunction and temporary restraining order (TRO) to enjoin the Committee from meeting. The Interior Department responded on March 25, 2026, arguing that the plaintiffs' challenge suffered from procedural issues.

On March 27, 2026, the court held a hearing on the TRO request. The plaintiffs focused on the imminent harm that would occur if the Meeting were allowed to move forward, but the court found this unpersuasive. Ultimately, the court denied the TRO, meaning that the Committee will indeed convene for the fourth time in history on March 31, 2026.

What This Means

The outcome of the Committee could significantly impact the offshore oil and gas industry. If the Committee grants an exemption for the Rice's whale (and potentially other endangered or threatened species in the Gulf of America), offshore oil and gas companies should anticipate that there could be changes to the mitigation measures for affected species. It is possible such measures may be more relaxed than what is currently required under the 2025 BiOp, but the Committee nonetheless retains the right to institute any measures that it deems necessary and appropriate to minimize impacts on affected species.

Also, though the Committee's decision could grant an exemption under the ESA, it is not clear how the Committee's decision will consider the Marine Mammal Protection Act (MMPA). As a separate but related statute, the MMPA includes similar prohibitions as the ESA to protect marine mammals without a comparable exemption process. Therefore, offshore oil and gas operators may still be subject to mitigation measures that are specifically aimed at addressing MMPA requirements for which the Committee cannot issue an exemption under the ESA.

In any event, any exceptions granted by the Committee will likely be challenged in federal court, which could introduce new uncertainties on the application of the ESA and mitigation requirements included in the 2025 Biop for offshore oil and gas operations.

Ultimately, the upcoming Meeting has broader implications than just the Rice's whale and offshore oil and gas activities, as the outcome may encourage (or discourage) future exemption application requests, particularly for actions relating to domestic energy development and matters of national security.

How Holland & Knight Can Help

Holland & Knight is closely tracking the ESA Committee and related litigation. Contact the authors for support in assessing the potential regulatory impacts associated with these matters.

Notes

¹ 16 U.S.C. § 1536. A jeopardy finding is a formal determination in a BiOp that a proposed federal action is likely to jeopardize the continued existence of a listed species by directly or indirectly reducing the likelihood of both the survival and recovery of a listed species in the wild by impacting its reproduction, numbers or distribution.

² Three other exemption processes were commenced but resolved prior to a decision by the Committee.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.