US Interior Secretary Doug Burgum testifies during a House Committee on Natural Resources hearing to examine the 2027 budget for the Department of the Interior on Capitol Hill in Washington, DC, on May 13, 2026. (Photo by Jim WATSON / AFP via Getty Images)
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A longstanding controversy over the existence and possible endangerment of a Gulf of Mexico whale now known alternatively as the Bryde’s Whale or, more recently, the Rice’s Whale popped up again in recent months. The argument over a listing of the whale as endangered under the Endangered Species Act (ESA) was revived when the Trump Administration solicited public comments on a process to reconsider the listing on May 5. The reconsideration comes amid a general re-examination of how the ESA has been applied in the past and how it should be applied going forward given recent changes in the legal scene.
The Center for Biological Diversity, an activist group which specializes in seeking listings under the ESA targeted to impede energy development, says the Rice’s Whale is “the only endemic whale species found within the United States,” adding that the whale’s “population collapsed after the 2010 Deepwater Horizon spill and is today only at about 51 animals,” according to the Marine Mammals Commission.
Rice’s Whale Listing Ignored ESA Requirements
The trouble with both those claims is that the science behind them remains highly questionable. Indeed, the entire process under which the Rice’s Whale was listed rests on a foundation so legally flimsy that it almost invites challenge. This particular listing runs up against two key requirements congress included in the ESA when it was amended in 1978. Congress deemed the amendments were needed following the similarly questionable Snail Darter listing, which was intentionally designed to halt the completion of a major dam by the Tennessee Valley Authority.
Bruda or Bryde’s whale eating anchovies fish in the gulf of Thailand at Bang Tabun, Phetchaburi Province.
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First, the law requires that listings be made “solely on the basis of the best scientific and commercial data available” detailed in 16 U.S.C. § 1533(b)(1)(A).
Second, listing decisions must follow a transparent public process, as laid out in 16 U.S.C. § 1533(b).
In comments submitted on July 6, a group of five associations whose members are involved in energy development in the Gulf of Mexico detail reasons why the listing of the Rice’s whale may have violated both requirements. Those associations include the American Petroleum Institute, the Offshore Operators Committee, the National Ocean Industries Association, the EnerGeo Alliance, and the Louisiana Mid-Continent Oil & Gas Association.
Noting that the Rice’s Whale was only listed as a separate species in 2021 – the first year of the Joe Biden Administration – the associations point out that decision was based on a process that was hidden from public input and based solely on an examination of mitochondrial DNA (mtDNA) by a single study. Such a process can hardly be considered to meet the “best scientific data” requirement and transparent public process mandates under the ESA.
Worse, NMFS outsourced the listing decision to what it claimed was an “independent” Committee of the Society for Marine Mammalogy. What NMFS did not publicly disclose during the listing process is the fact that this Committee was at all times chaired by NMFS scientists. Trump officials determined that this listing process fell well short of the “Gold Standard Science” required under Executive Order No. 14303 signed by President Donald Trump in May, 2025. Thus, the consideration for re-listing was initiated on May 5 by both the NMFS and the National Oceanic and Atmospheric Administration (NOAA).
A Larger Re-Examination Of The ESA At DOI
This example of highly questionable application of the ESA by both activist groups and NMFS officials in the last administration comes amid a larger project initiated by Interior Secretary Doug Burgum to conduct a full review of the processes of application of the law by his department, where the U.S. Fish & Wildlife Service holds sway over ESA listings onshore. On July 17, DOI announced reforms that will make it harder for USFWS to enter into negotiated consent decrees with CBD and other activist groups on listings using the “diminishing habitat” argument. That controversial process created listings of species with massive populations, including the Sage Grouse and Dunes Sagebrush Lizard, in recent years.
“For too long, the Endangered Species Act has been weaponized to stop almost any new project in America, driving up costs for families, weakening our competitiveness, and undermining our national security,” Burgum said in a release. “At the same time, results have fallen short. Nearly 97 percent of species ever placed on the list remain there today. Success should be measured by species recovery and delisting, not by adding more species to the list.”
No doubt, the DOI reforms and any decision by NMFS and NOAA to reverse the Rice’s Whale listing will be hit with a raft of activist lawsuits. But these actions have an enhanced prospect of being sustained by the federal courts thanks to the Supreme Court’s June 2024 decision in Loper Bright v. Raimondo. In that case, the Court reversed the 1984 vintage legal doctrine called the Chevron Deference. That doctrine held that the courts must defer to the best judgment of the regulatory agencies on matters which involve interpretations of federal statutes like the ESA and MMPA. The courts are now free to identify and reverse actions in which those statutes were clearly misinterpreted by bureaucracies motivated by politics or expansion of their own authority.
The removal of that Chevron Deference eliminated the legal foundation which underlies the mass of the energy and climate agenda of both the Biden and Obama presidencies. In just its first 19 months, this second Trump presidency has already arguably succeeded in reversing the preponderance of those agendas. Now, it seems possible that the questionable listing of the Rice’s Whale under the ESA could be swept up in the policy sea-change happening today.