The Endangered Species Act and Climate Change: Selected Legal Issues

Summary: For more than a decade, federal agencies have grappled with how to address climate change effects when implementing the Endangered Species Act of 1973 (ESA). The ESA aims to protect threatened and endangered fish, wildlife, and plants from extinction. As set forth by Congress, one of the main purposes of the ESA is to "provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved."

Summary: The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (collectively, the Services) have acknowledged that the changing climate may threaten the survival of and habitat for some species. As noted by courts and legal scholars, the ESA does not expressly require the Services to consider the effect of climate change in their ESA decisions. However, the ESA and its implementing regulations (1) direct the Services to consider "natural or manmade factors affecting [a species'] continued existence" when determining whether a species should be protected under the ESA; and (2) require the Services to analyze cumulative effects on a species' survival when analyzing whether federal actions jeopardize a species protected under the Act. The courts and the Services have interpreted these provisions as requiring the Services to consider climate change effects in the ESA decisionmaking process. Various lawsuits have challenged the Services' interpretation of complex scientific data or models that predict short- and long-term effects from a changing global climate on specific species and their habitats.

Summary: Legal challenges have influenced how the Services implement the ESA when climate change affects species and their habitats. Lawsuits typically focus on two main issues: (1) when the Services should list, delist, or reclassify a species as threatened or endangered because of climate change effects; and (2) whether the Services can or should regulate activities that affect the climate to protect species and their habitat. Judicial review has helped to ensure that the Services consider projected climate change effects on species in their ESA decisions. However, the courts have not required the Services to curb activities that may contribute to climate change to protect threatened or endangered species.

Summary: Stakeholders disagree on whether the ESA should play a role in addressing climate change, with some arguing that the ESA is not equipped to mitigate climate change effects. Other stakeholders believe that the Services can and should wield the ESA to protect further species threatened by climate change by curbing activities contributing to climate change. From the Services' viewpoint, the best available scientific and commercial data have been insufficient to determine whether greenhouse gas emissions from a proposed activity cause detrimental effects on a species or its habitat. In light of the judicial deference afforded to the Services, the courts have not expanded the ESA as a tool to protect listed species by regulating activities that contribute to climate change.

Summary: This report analyzes the courts' role in shaping how the Services have factored climate change effects into ESA decisions and recent 2019 regulatory developments that aim to clarify how the Services consider and address climate change in their ESA decisions. In August 2019, the Services finalized revisions to the ESA implementing regulations, aiming to increase transparency and effectiveness of the ESA while easing regulatory burdens. Among those changes, the Services clarified their existing policies and practices for factoring climate change effects into their ESA decisions. As legislative proposals to revise the ESA continue to develop, legal battles over the how the Services interpret climate change effects in their ESA decisions will likely continue.

F or more than a decade, federal agencies have grappled with how to address climate change effects when implementing the Endangered Species Act of 1973 (ESA, or the Act). The ESA aims to protect threatened and endangered fish, wildlife, and plants from extinction. As set forth by Congress, one of the main purposes of the ESA is to "provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved." To conserve threatened and endangered species, the Act seeks to identify threatened or endangered species, facilitate recovery and conservation of these species, and minimize the effect of federal and private actions on these species and their habitats. The Supreme Court has stated that "[t]he plain intent of Congress in enacting this statute was to reverse the trend toward species extinction, whatever the cost."

To achieve that purpose, Congress declared that "all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities" to further the ESA purposes. Under the ESA, two federal agenciesâthe U.S. Fish and Wildlife Service (FWS) within the Department of the Interior and the National Marine Fisheries Service (NMFS) within the Department of Commerce (collectively, the Services)âare primarily responsible for implementing the ESA. According to the Services, over 1,500 species of plants and animals receive some type of protection under the ESA. Since the early 21st century, some Members of Congress have urged the Services to factor in climate change effects when implementing the ESA.

The Services, along with scholars and scientists, have acknowledged that the changing climate may threaten the survival of and habitat for some species. As noted by courts and legal scholars, the ESA does not expressly require the Services to consider the effect of climate change in their ESA decisions. However, the ESA and its implementing regulations (1) direct the Services to consider "natural or manmade factors affecting [a species'] continued existence" when determining whether a species should be protected under the ESA; and (2) require the Services to analyze cumulative effects on a species' survival when analyzing whether federal actions jeopardize a species protected under the Act. The courts and the Services have interpreted these provisions as requiring the Services to consider climate change effects into the ESA decisionmaking process.

Various lawsuits have challenged the Services' interpretation of complex scientific data or models that predict short- and long-term effects from a changing global climate on specific species and their habitats. These lawsuits typically focus on two main issues: (1) when the Services should list, delist, or reclassify a species as threatened or endangered because of climate change effects; and (2) whether the Services can or should regulate activities that affect the climate to protect the species. Judicial review has helped to ensure that the Services consider projected climate change effects on species in their ESA decisions, but the courts have not required the Services to curb activities that may contribute to climate change to protect threatened or endangered species.

This report analyzes the courts' role in shaping how the Services have factored climate change effects into ESA decisions and recent regulatory developments that seek to clarify how the Services consider and address climate change in their ESA decisions.

In general, stakeholders challenge the Services' ESA actions or inactions under the Administrative Procedure Act (APA). The APA authorizes reviewing courts to "hold unlawful and set aside agency actions, findings, and conclusions found to be arbitrary, capricious, [or] an abuse of discretion." Under the arbitrary and capricious standard, courts must determine whether the agency "examine[d] the relevant data and articulate[d] a satisfactory explanation for its action, including a 'rational connection between the facts found and the choice made,'" but the standard prohibits courts from "substitut[ing] its judgment for that of the agency." Under this deferential standard, courts have generally deferred to the Services' decisions related to climate change. However, courts have not deferred to the Services when the court concludes that the record does not support the Services' decision or the Services failed to consider climate change adequately.

The sections below offer selected examples, drawn from various court decisions, legal documents, and regulatory developments, to illustrate the range of issues that the Services and the courts have addressed related to the ESA and climate change. Each section of the report reviews the applicable legal framework and discusses the relevant regulatory revisions finalized by the Trump Administration in August 2019. This report does not aim to provide a comprehensive or representative preview of all the judicial decisions that have addressed this area.

Many legal challenges involving the ESA and climate change have centered on whether to list a species as endangered or threatened under the ESA. To trigger protections and prohibitions under the ESA, the Services must first list a species as threatened or endangered. Under ESA Section 4, the Services list a species as endangered or threatened based on assessments of the risk of their extinction. The Act defines an "endangered species" as a species "in danger of extinction throughout all or a significant portion of its range." A "threatened species" is a species "likely to become endangered within the foreseeable future in all or a significant portion of its range." For listing decisions, the ESA requires the Services to determine whether the species "is a threatened or endangered species because of any of the following factors:

(A) the present or threatened destruction, modification, or curtailment of its habitat or range;

(B) overutilization for commercial, recreational, scientific, or educational purposes;

(D) the inadequacy of existing regulatory mechanisms; or

(E) other natural or manmade factors affecting its continued existence."

When listing a species, the Services must make their decision "solely on the basis of the best scientific and commercial data available . . . after conducting a review of the status of the species," taking into account any state's or foreign nation's actions to protect such species.

Courts have consistently held that the Services must consider climate change as a factor in their listing decisions if it may affect the survival of the species. However, stakeholders have disputed the extent to which climate change affects species and the science underpinning listing decisions. Some stakeholders have sought through petitions and legal challenges to compel the Services to list species whose survival has been or may be threatened by climate change effects. Other stakeholders have challenged the listing of species or petitioned the Service to delist a species, questioning whether model-based climate predictions constitute the "best scientific and commercial data available" on which to base ESA listing decisions.

Scientific uncertainty and undefined terms in the ESA have opened the door to litigation challenging the Services' interpretation of ambiguous terms and their assessment of the climate science that supports their listing decisions. Courts often uphold the Services' interpretation of ambiguous terms because judicial review of agency decisions is narrow and highly deferential; the court will not set aside an ESA listing decision so long as it is rational and reasonably based on supporting evidence. However, courts have faulted the Services for inadequately considering climate change effects or relying on the scientific uncertainty of climate modeling to deny a petition to list a species. The two sections below discuss various court decisions that have reviewed how the Services (1) interpret the undefined "foreseeable future" in their listing decisions, and (2) address the scientific uncertainty of climate change effects.

Foreseeability of Climate Change Effects in Listing Decisions

Legal challenges to Services' decisions to list or not to list a species as threatened highlight the difficulty in predicting whether a species is likely to be endangered "within the foreseeable future" because of climate change effects. Neither the ESA nor the implementing regulations define the term foreseeable future . Under their interpretation of the term, the Services determine foreseeability on a case-by-case basis for listing decisions, and the foreseeable future time frame can vary considerably based on the species and its habitat. For species affected by climate change, the Services' decisions on foreseeability of a species' survival often depend on their assessment of predictive modeling of climate threats to a species and its habitat. How a Service defines a species' foreseeable future could affect its ESA listing decision. For example, a species is less likely to be listed for protection under the ESA if the Services adopt a shorter time frame for the foreseeable future, thereby limiting their consideration of longer-term projections of climate change effects on a species and its habitat.

The legal challenges to FWS's listing of the polar bear ( Ursus maritimus ) illustrate how courts have applied this narrow and deferential standard of review and interpreted the ESA standards for the best available data in the climate change context. In 2013, in Safari Club International v. Salazar (In re Polar Bear Endangered Species Act Listing and Section 4(d) Rule Litigation) (hereinafter In re Polar Bear ), the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) upheld FWS's listing of polar bears as a threatened species under the ESA based in part on projected climate change effects to the species and its habitat. FWS based its decision on three main conclusions: (1) that the polar bear is dependent on sea ice for its survival; (2) that sea ice is declining; and (3) that climate change will likely continue to reduce the extent and quality of arctic sea ice gravely enough to endanger the polar bear population.

The D.C. Circuit held that the challenges to FWS's scientific assessment and conclusions "'amount to nothing more than competing views about policy and science,' on which we defer to the agency." The court also rejected arguments that climate science was too uncertain to support listing the polar bear as a species that is likely to become endangered in the "foreseeable future," defined by FWS in this case as 45 years in the future. The court concluded that FWS's reliance on climate projections was "justifiable[,] clearly articulated[,] . . . sufficient to support their definition of foreseeability." The Supreme Court declined to review the case.

In 2016, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) similarly deferred to the NMFS's foreseeable future analysis in upholding the listing of two populations of Arctic bearded sealsÂ ( Erignathus barbatus nauticus ) in Alaska Oil & Gas Association v. Pritzker . NMFS listed the seals as threatened in 2012 based on climate change models that predicted that sea ice the seals depend on for birthing and mating would mostly disappear by 2095. In rejecting the plaintiffs' claim that the models used in the listing decision could not reliably predict climate change effects on the seals beyond 2050, the Ninth Circuit concluded that NMFS may base its listing decision on such models and long-term projections because the record included a reasonable explanation for its decision. The court explained that the

ESA does not require NMFS to base its decision on ironclad evidence when it determines that a species is likely to become endangered in the foreseeable future; it simply requires the agency to consider the best and most reliable scientific and commercial data and to identify the limits of that data when making a listing determination.

Soon after the bearded seal decision, the Ninth Circuit reversed an Alaska federal district court's decision to vacate NMFS's decision to list the Arctic subspecies of the ringed seal ( Phoca hispida hispida ) as threatened under the ESA. Bound by the precedent set in Pritzker , the Ninth Circuit concluded that the district court erred when it required more "definitive quantitative data about the Arctic ringed seal population and an extinction threshold" to list the species as threatened under the ESA. The court determined that NMFS's reliance on climate change models that project until 2100 was not arbitrary or capricious because NMFS "provided a reasonable and scientifically supported methodology for addressing volatility in its long-term climate projections, and it represented fairly the shortcomings of those projectionsâthat is all the ESA requires."

Courts have also deferred to NMFS's decisions not to list species when it reasonably demonstrated that long-term predictive climate models were unreliable to support a listing decision. For example, a federal district court in California upheld NMFS's decision not to list the ribbon seal ( Histriophoca fasciata ) as threatened or endangered despite a "likely" population decline related to sea ice loss and ocean acidification. The court held that NMFS reasonably relied on a 40-year time horizon, from 2010 to 2050, to project negative effects from climate change on the sea ice habitat because it determined the models beyond 2050 were unreliable. The court deferred to NMFS's expertise in upholding NMFS's determination that, based on this time frame, the ribbon seal was not likely to become endangered or in danger of extinction in the foreseeable future because the seal is resilient and adaptable to climate change effects on its habitat. The court concluded that NMFS did not err when it determined that climate models after 2050 were "unreliable" and "too divergent" to use in assessing future threats to the ribbon seal. NMFS determined that the climate models were "too heavily dependent" on estimated greenhouse gas (GHG) emissions from different types of future regulatory controls.

These foreseeability cases highlight the courts' willingness to defer to the Services' interpretation of climate modeling data and the foreseeability of climate change effects if the record for the listing decision includes a reasonable explanation for their decision that acknowledges limits or uncertainty in the data. As such, the Services continue to evaluate the foreseeability on a case-by-case basis.

Defining "Foreseeable Future" in ESA Regulations

In August 2019, the Services finalized revisions to the ESA regulations to define the "foreseeable future" as extending "only so far into the future as the Services can reasonably determine that both the future threats and the species' responses to those threats are likely." Prior to this final rule, neither the ESA nor the implementing regulations defined the term foreseeable future . In the final rule, the Services emphasized that it would continue to evaluate the range of uncertainty and probabilities associated with the best available science and projected data on climate change effects to individual species and their habitat.

It is unclear whether these changes will (1) affect how the Services evaluate long-term projections of climate change effects on species, or (2) promote greater uniformity and consistency within and between FWS and NMFS in their listing evaluations. Some stakeholders noted that the final rule merely codified the Services' existing practice in determining the foreseeable future for species. Other stakeholders expressed concerns that this definition of foreseeable future would limit consideration of long-term projected threats from climate change. In their lawsuit challenging the final rule, plaintiffs claim that demanding that both threats and responses to threats be "likely" in the foreseeable future imposes an "increased certainty requirement" that will deny protection under the ESA for species from the future effects of climate change.

Scientific Uncertainty in Listing Decisions

The legal challenges to the Services' foreseeable future determinations highlight how scientific uncertainty plays a large role in evaluating climate change effects. Similar to the foreseeability cases, courts have faulted the Services for claiming scientific uncertainty without adequate explanation when declining to list a species. This section discusses some examples where stakeholders have challenged FWS's approach to scientific uncertainty in its decisions to not list a species or delist a species under the ESA.

To delist a species under the ESA, the Services must determine that none of the five factors considered in listing the species (i.e., destruction or modification of its habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; inadequate existing regulatory protections; and other factors affecting its continued existence) threatens or endangers the species. Delisting determinations must be made "solely on the basis of the best available scientific and commercial information regarding a species' status, without reference to possible economic or other impacts of such determination."

Similar to judicial review of listing decisions discussed above, courts have generally deferred to FWS's decisions regarding scientific uncertainty of climate data unless FWS fails to justify why such uncertainty supports its listing decision. For example, in 2011, the Ninth Circuit in Greater Yellowstone Coalition Inc. v. Servheen vacated and remanded FWS's delisting of the Yellowstone grizzly bearÂ ( Ursus arctos horribilis ) as a threatened species, partly because FWS failed to justify why declines in whitebark pineâa primary source of food for grizzliesâdue to climate change were not likely to threaten the Yellowstone grizzly bear population. While acknowledging that courts generally defer to the Services' expertise, the Ninth Circuit refused to defer to FWS's "arbitrary" and unsupported claims of scientific uncertainty regarding the effect that declining food supplies resulting from climate change may have on grizzly bears. Relying on evidence that climate change reduced available whitebark pine seeds, increased grizzly bear mortality, and decreased grizzly bear reproduction, the court concluded that overall declines in the grizzly bear's food source from climate change effects in the Yellowstone region would logically have a "negative effect on its grizzly bear population."

In 2018, the Ninth Circuit similarly rejected FWS's decision not to list the Upper Missouri River Valley distinct population segment of Arctic grayling ( Thymallus arcticus ) as endangered or threatened. In Center for Biological Diversity v. Zinke , the court held that FWS acted arbitrarily and capriciously when it failed to explain why the uncertainty of climate change effects on the Arctic grayling supported not listing it. The court faulted FWS for (1) refusing to make any projections with respect to the synergistic effects of climate change "simply because of uncertainty," and (2) disregarding the additive effects of climate change in considering the effects of low stream flows and high water temperatures on the species.

Other courts have similarly faulted FWS for requiring a greater level of scientific certainty or evidence than the ESA requires with respect to climate change effects on a species in its listing determination. In Defenders of Wildlife v. Jewell , a federal district court in Montana held that FWS's 2014 decision to withdraw the proposed listing of the North American wolverine ( Gulo gulo luscus ) as threatened was arbitrary and capricious. In reversing its position on the proposed listing, FWS attempted to discredit certain scientific studies on climate change effects that it had relied on previously to propose listing the wolverine as a threatened species. FWS claimed that FWS needed greater certainty and refinement in the climate change data before listing the wolverine. The court concluded that FWS "cannot demand a greater level of scientific certainty than has been achieved in the field to dateâthe 'best scientific data available' . . . standard does not require that the [FWS] act only when it can justify its decision with absolute confidence, and 'the ESA accepts agency decisions in the face of uncertainty.'" After the court decision, in 2016, FWS reopened the public comment period on its previous proposal to list the wolverine as threatened under the ESA. FWS has not made a final listing determination after closing the comment period.

Relatedly, courts have faulted FWS for requiring more evidence of climate change effects to delist a species than what is required under the ESA. In 2019, a federal district court in Texas held that FWS had acted arbitrarily and capriciously when it denied a petition to delist the Bone Cave harvestman spider ( Texella reyesi ) as an endangered species. In American Stewards of Liberty v. Department of the Interior , the court concluded that FWS did not deny the petition based on the best available data but instead based its denial on the absence of "admittedly unavailable" evidence of climate change effects on the species and its habitat. The court did not defer to FWS's conclusion that delisting of the spider was not warranted because the petition failed, in part, to include a "trend analysis to indicate that this species can withstand the threats associated with development or climate change over the long term." In its decision denying the petition to delist, FWS claimed that the petitioners did not present enough data to determine if the spider's population will continue to decline from such threats. The court held that FWS "committed clear error" by requiring the petition to present "conclusive evidence about the harvestman's population trendsâmore evidence than the Service admits is available or attainable." The court concluded that the petition met the threshold for a finding that delisting may be warranted and remanded to FWS for further consideration. To date, FWS has not issued a new finding regarding the delisting petition.

Although it is not possible to have complete certainty of future climate change effects, these court decisions illustrate that the Services cannot rely solely on scientific uncertainty to make listing or delisting decisions without adequate justification. In the 2019 revised ESA regulations, the Services noted that "the requirement to use the 'best available' data means that we cannot insist that information must be free from all uncertainty, and further agree that the Act's protections should not be withheld until a species' status has declined to the point that the future risk of extinction is certain."

The Services have also considered climate change effects in designating critical habitat. When listing a species as threatened or endangered, the ESA requires the Services to "designate any habitat of such species which is then considered to be critical habitat." As a threshold matter, as made clear by the Supreme Court's 2018 decision in Weyerhauser Co. v. FWS , an area must be "habitat" for a species for the Services to consider whether it is "critical habitat." Under the ESA, the Services may designate two types of habitat as critical habitat: (1) specific areas within the geographical area occupied by the species, which contain the "physical or biological features essential to the conservation of the species" and may require special management protections (occupied habitat); and (2) areas outside the geographical areas occupied by the species if the Secretary determines that such unoccupied areas are "essential for the conservation of the species" (unoccupied habitat). Once an area is designated as critical habitat, federal agencies may not (unless exempted) authorize, fund, or carry out actions that are likely to "result in the destruction or adverse modification" of critical habitat.

The Services face unique challenges when designating critical habitat based on modeled habitat shifts for species affected by climate change. The legal challenges to FWS's designation of the polar bear's critical habitat show how a court deferred to the FWS's interpretation of climate change data and models to determine whether unoccupied areas are "essential for the conservation of the species."

In a 2016 decision, Alaska Oil & Gas Association v. Jewell , the Ninth Circuit upheld FWS's designation of 187,000 square miles as critical habitat for the polar bear. FWS based its critical habitat designation in part on long-term projections of habitat destruction from climate change. FWS designated three areas on Alaska's coast and in its waters that contain elements essential to the polar bear: a sea ice habitat, a terrestrial denning habitat, and a barrier island habitat. For two of the designated areas, the district court concluded that FWS failed to provide evidence that the two areas included all of the elements required for the survival of the polar bear. The district court asked FWS to establish that polar bears currently use those two areas as habitat.

The Ninth Circuit disagreed with the lower court's narrow interpretation of the ESA critical habitat requirements. The court rejected the lower court's finding that the ESA required FWS to limit the critical habitat designation to specific areas that are currently used by polar bears, explaining that "[n]o such limitation to existing use appears in the ESA, and such a narrow construction of critical habitat runs directly counter to the Act's conservation purposes. The Act is concerned with protecting the future of the species, not merely the preservation of existing bears. And it requires use of the best available technology, not perfection." The court concluded that FWS properly relied on climate science and sea ice data in designating habitat that has the elements required to sustain and preserve the polar bear population.

Similar to cases regarding foreseeability and scientific uncertainty, the court appeared to defer to FWS's reasoned consideration of climate change effects based on evidence in the record.

Revised ESA Critical Habitat Regulations

The 2019 final rule clarified when the Secretary may designate unoccupied areas as critical habitat. Under the ESA, unoccupied areas must be essential to the conservation of the species to be critical habitat. Under the revised regulations, to determine if an unoccupied area is essential, the Services must find that the occupied habitat of the species at the time of listing is inadequate to ensure the conservation of the species. The Services must also determine that there is a "reasonable certainty" that the area will (1) contribute to the conservation of the species, and (2) contains one or more of those physical or biological features essential to the conservation of the species. The final rule explains that this revision "better reflects the need for high confidence that an area designated as unoccupied critical habitat will actually contribute to the conservation of the species."

How the revised regulations will affect the designation of unoccupied critical habitat will likely depend on the threshold the Services set for "reasonable certainty" that the unoccupied habitat will contribute to the conservation of the species. Some stakeholders are concerned that these changes to the critical habitat regulations may limit the Services' ability to protect species that move because of climate-change-related habitat loss. In the litigation challenging the 2019 final rules, the plaintiffs argue that, by imposing an "elevated certainty requirement" on the Services' determination of what areas are "essential," the new rules would preclude the Services from designating currently unoccupied areas to which species may need to move because of climate change as critical habitat. In contrast, other stakeholders see the regulatory changes as complying with the Supreme Court's decision in Weyerhauser Co. v. FWS that an area must be "habitat" before the Services may consider whether it is "critical habitat." These stakeholders assert that reasonable certainty that an area has at least one of the essential features necessary to conserve the species ensures that the area is habitat for the species. In addition, landowners claim that these changes remove potential regulatory burdens that critical habitat designations cause, such as requirements that, when issuing permits that may adversely affect critical habitat, federal agencies consult with stakeholders.

Protecting Endangered or Threatened Species

If FWS or NMFS bases its listing decision on climate change effects, FWS or NMFS must also determine whether federal actions that contribute to climate change jeopardize the species under ESA Section 7 or whether an entity that may contribute to climate change is "taking" the species in violation of ESA Section 9. The Services may tailor the Section 9 "take" prohibitions for species listed as threatened under the ESA by using Section 4(d) rules. This section reviews how the Services address climate change effects when protecting listed species under ESA Sections 4(d), 7, and 9.

Prohibiting "Take" Under Sections 9 and 4(d)

ESA Section 9 prohibitions on "taking" a listed species differ for threatened and endangered species. ESA Section 9(a)(1) prohibits the unauthorized "take" of an endangered species. Take is defined as an act "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or to attempt to engage in any such conduct." In contrast, the ESA does not prohibit the taking of a threatened species unless FWS or NMFS decides to extend the Section 9 take prohibitions to the threatened species through a Section 4(d) rule. For threatened species, ESA Section 4(d) requires FWS or NMFS to issue regulations it "deems necessary and advisable to provide for the conservation of such species." In 1978, FWS issued a "blanket 4(d) rule" that extends most of the Section 9 take prohibitions to all threatened species listed by FWS, unless it adopts a specific rule for a particular species. As discussed below, the 2019 revisions to the ESA regulations rescinded FWS's blanket 4(d) rule for newly listed or reclassified species, aligning it with NMFS's practice of issuing species-specific 4(d) rules for threatened species.

Climate Change and Section 4(d) Rules for Threatened Species

A frequent debate among legal scholars and stakeholders is whether the take prohibitions should extend to GHG-emitting activities that contribute to climate change. Stakeholders seeking greater protection for species argue that sources of GHG emissions cause an unlawful "take" under ESA Section 9 because GHG emissions contribute to climate change, which harms the species. However, the Services and critics of this approach assert that the Section 9 take prohibitions can apply only if GHG-emitting activity directly and intentionally takes the species or negatively affects its habitat.

In the litigation challenging the polar bear's 4(d) rule, the federal court's decision highlighted the challenges in applying the take prohibitions to GHG-emitting activities. Plaintiffs challenged FWS's 4(d) rule that specified prohibitions necessary to conserve the threatened polar bear species. The rule, among other things, did not prohibit activities outside the species' current range that may incidentally affect polar bears, such as GHG-emitting activities that may contribute to the loss of sea ice habitat. Plaintiffs claimed that the rule was arbitrary and capricious and violated the ESA by failing to address threats to the polar bear from GHG emissions and the loss of potential sea ice habitat outside the polar bears' range.

In rejecting this argument, the court concluded FWS had a rational basis not to extend the ESA's take prohibitions because there was insufficient evidence to suggest that regulating offsite GHG-producing activities would produce direct conservation benefits to the polar bear. FWS explained that the best available science and climate modeling could not identify an individual GHG emission source as the cause of a specific adverse effect on the polar bear or its habitat. The court acknowledged that it cannot "decide based upon its own independent assessment" "whether the ESA is an effective or appropriate tool to address the threat of climate change . . . . The answer to that question will ultimately be grounded in science and policy determinations that are beyond the purview of this Court."

Based on this judicial opinion, it seems unlikely that the Services will use Section 4(d) rules to prohibit GHG-emitting activities without further advances in science that can establish a causal connection between the individual GHG emission source and the specific adverse effect on the species or its habitat.

In 2019, FWS rescinded the "blanket 4(d) rule" for newly listed or reclassified threatened species, and will now adopt species-specific 4(d) rules. Because the rescission applies prospectively, the blanket 4(d) rule continues to prohibit the take of threatened species covered by the blanket 4(d) rule that FWS listed prior to the effective date of the rescission. This species-specific approach aligns with NMFS's practice of establishing specific 4(d) rules for each threatened species.

How the rescission of FWS's blanket 4(d) rule may affect the protection of species threatened by climate change effects depends on its implementation. While some stakeholders are concerned that the rescission will "weaken" protections for threatened species because of delays in issuing species-specific 4(d) rules, it may have little effect on whether GHG-emitting activities are prohibited. FWS has not adopted a 4(d) rule that prohibited GHG-emitting activities that could affect threatened species and their habitats, prohibiting only actions that directly and intentionally take threatened species. For threatened species affected by climate change, legal scholars argue that such "limited" 4(d) rules have "no real effect on the activities that are causing climate change, the acknowledged primary factor contributing to [the] species' decline."

Some stakeholders and legal scholars view the ESA Section 7 consultation requirement as a potentially powerful tool to limit GHG-emitting activities that may further jeopardize threatened or endangered species that were listed, at least in part, because of climate change effects. In practice, the Services and the courts have acknowledged that climate change should be considered during the consultation process. However, the courts have not required the Services to curb activities that may contribute to climate change to protect threatened or endangered species.

In general, ESA Section 7 requires federal agencies to "insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [the critical] habitat of such species." A federal agency planning any action must consult with NMFS or FWS if the federal agency determines that its action "may" jeopardize a listed species or adversely affect its habitat. The ESA and its implementing regulations specify the types of consultation (e.g., informal versus formal consultation), when each type of consultation is required, and the procedures the agency proposing the action and the Services must follow.

After the consultation with an agency, the Services must issue a biological opinion (BiOp) based on "the best scientific and commercial data available" that determines whether the proposed action is likely to jeopardize the ESA-listed species or adversely modify critical habitat. If the Services determine that an agency action would likely jeopardize the listed species or its critical habitat, the agency must terminate the action, implement a Service-proposed alternative action, or seek an exemption. If the agency action is not likely to jeopardize the continued existence of the species but is nonetheless likely to result in some "incidental take" of the species, the BiOp must set forth an incidental take statement, which specifies the permissible "amount or extent" of this effect on the species.

Various court decisions have faulted the Services for failing to discuss climate change effects when assessing whether federal action will jeopardize a listed species or adversely modify its habitat. In the 2007 decision, Natural Resources Defense Council v. Kempthorne , a federal district court in California held that FWS acted arbitrarily and capriciously when analyzing potential effects on the threatened delta smelt (Hypomesus transpacificus) from a large water diversion project. The court determined that the "absence of any discussion in the BiOp of how to deal with any climate change is a failure to analyze a potentially 'important aspect of the problem.'" In rejecting FWS's claim that the climate change studies did not merit analysis because they were inconclusive, the court concluded that without any meaningful discussion in the BiOp, it was "impossible" for the court to determine whether the climate studies were "rationally discounted because of [their] inconclusive nature, or arbitrarily ignored."

Similarly, plaintiffs successfully challenged NMFS's BiOp that concluded that changes to a fish hatchery operation were not likely to jeopardize the species or adversely affect critical habitat for the Upper Columbia River spring Chinook salmon ( Oncorynchus tshawytscha ) or steelhead ( Oncorhynchus mykiss ). A federal district court in Washington ruled that NMFS's BiOp was arbitrary and capricious because it failed to analyze adequately climate change effects from the hatchery's modified operations and water use. The court explained that "[t]he best available science indicates that climate change will affect stream flow and water conditions throughout the Northwest" and that the lack of a model or study specifically addressing local climate change effects did not permit NMFS to ignore this factor. The court found that NMFS had included "no discussion whatsoever" of the potential effects of climate change on the hatchery's future operations and water use, and that it was not sufficient for NMFS to say that the local area at issue was less prone to climate change effects than other areas in the region.

When the Services have discussed climate change effects from federal actions, some courts have scrutinized the Services' rationale in dismissing such effects when issuing a "no jeopardy" BiOp. For example, the Ninth Circuit 2017 majority opinion in Turtle Island Restoration Network v. Department of Commerce examined NMFS's BiOp that concluded that a fishery expansion would neither jeopardize the continued existence of the endangered loggerhead sea turtle ( Caretta caretta ) nor the endangered leatherback sea turtle ( Dermochelys coriacea ). For the loggerhead sea turtles, the court ruled that NMFS had acted arbitrarily and capriciously by failing to incorporate into its jeopardy analysis climate-model data that predicted that the fishery expansion would "exacerbate" loggerhead population decline due to climate change. In contrast, for the leatherback sea turtles, the majority upheld NMFS's no-jeopardy conclusion, rejecting the plaintiffs' argument that NMFS erred by limiting the "temporal scale" of its analysis to 25 years despite NMFS's determination that rising temperatures from climate change would have effects on leatherback sea turtles over the next century. Because NMFS's BiOp considered and concluded that it could not credibly predict climate change effects on the leatherback turtles, the majority held that NMFS adequately considered the climate change effects in its no-jeopardy conclusion.

Despite some success challenging BiOps, neither the courts nor the Services have found that climate change effects from a proposed federal action jeopardize the species or adversely modify its habitat. Some stakeholders and legal scholars argue that when a proposed federal action contributes to climate change that may jeopardize the species or adversely modify its habitat, the agency is required to consult with the Services. If the Services determine that such actions jeopardize the species or its habitat, these stakeholders assert that the Services should use Section 7 consultation authority to limit or modify the GHG emissions from the proposed federal action. However, the Department of the Interior issued a Solicitor's Opinion explaining that Section 7 consultation is not required if no causal connection exists among the proposed federal action, a reasonably certain climate change effect, and the listed species. Therefore, without evidence of a causal connection between the proposed action and climate change effects, Section 7 consultation will not be triggered, foreclosing any opportunity for the Services to consider mitigating the climate change effects from such actions. Federal agencies and the Services have continued to use this policy to comply with their Section 7 consultation obligations.

Revising Section 7 Consultation Regulations

The 2019 ESA regulation revisions codified the Services' existing Section 7 climate change policy. Existing ESA Section 7 regulations require the federal agency proposing the action and the Services to evaluate the status of the listed species or critical habitat, the "effects of the action," and cumulative effects. Prior to the 2019 revisions, ESA regulations defined "effects of the action" to include both direct and indirect effects of a proposed federal action on the species or critical habitat. The 2019 ESA rule revised the definition of "effects of the action" to include all consequences to listed species or critical habitat that are caused by the proposed action. The definition specified that 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." The Services provided a two-part test to identify a consequence: (1) whether the effect or activity would not occur but for the action and (2) whether the effect or activity is reasonably certain to result from the action. The preamble explains that "if the agency fails to take the proposed action, and the activity would still occur, there is not 'but for' causation."

Some stakeholders support the revisions to the Section 7 consultation requirements, asserting that the changes will "help decrease the resources needed for federal agencies and applicants to describe the effects of their actions to listed species or critical habitat when engaged in section 7 consultation." Other stakeholders contend that the proposed changes will "unreasonably narrow" and "bar" Section 7 consultation when climate change effects do not affect immediately the geographic area of the project.

When the ESA was enacted in 1973, Congress did not consider climate change as a significant factor in conserving endangered species. Although the Services and the courts have acknowledged that actions taken under the ESA must consider climate change effects on species and their habitats, the debate continues on whether the ESA can adequately protect and conserve species threatened by climate change effects. Stakeholders disagree on what role the ESA should play in addressing climate change, with some arguing that the ESA is not equipped to mitigate climate change effects. Other stakeholders believe that the Services can and should wield the ESA to protect species threatened by climate change and to curb activities contributing to climate change.

Generally, legal scholars agree that litigation has influenced how the Services factor climate change effects into ESA decisions. Legal challenges have helped to ensure that the Services consider projected climate change effects on species in their ESA decisions. In light of the judicial deference afforded to the Services, the courts have not expanded the ESA as a tool to protect listed species by regulating activities that contribute to climate change. From the Services' viewpoint, the best available scientific and commercial data have been insufficient to determine that GHG emissions from a proposed activity cause detrimental effects on the species or its habitat. However, as climate modeling and technology advance, the Services may be able to predict the causes and effects from climate change on species with greater scientific certainty and data.

Members of Congress may be interested in the implications of revising the ESA to clarify its treatment of climate change effects. Legislation could clarify whether ESA Section 9 prohibitions or Section 7 consultation requirements apply to indirect harms that contribute to climate changes that may affect a species' survival, or how the Services should address scientific uncertainty associated with projected climate change effects when making listing determinations. As legislative proposals continue to develop, legal battles over the how the Services interpret climate change effects in their ESA decisions will likely continue.


Gulf of Mexico Energy Security Act (GOMESA): Background, Status, and Issues

Summary: Almost all U.S. offshore oil and gas production occurs in the Gulf of Mexico. Federal oil and gas leasing in the Gulf is governed primarily by two lawsâthe Outer Continental Shelf Lands Act (OCSLA; 43 U.S.C. Â§Â§1331-1356b), which broadly controls oil and gas leasing throughout the U.S. outer continental shelf (OCS); and the Gulf of Mexico Energy Security Act of 2006 (GOMESA; 43 U.S.C. Â§1331 note), whose provisions relate specifically to leasing in the Gulf region. GOMESA imposes an oil and gas leasing moratorium through June 30, 2022, in most of the Eastern Gulf (off the Florida coast) and a small part of the Central Gulf. The law also establishes a framework for sharing revenues from certain qualified oil and gas leases in other parts of the Gulf with the "Gulf producing states" of Alabama, Louisiana, Mississippi, and Texas, as well as with a nationwide outdoor recreation programâthe state assistance program establis hed by the Land and Water Conservation Fund Act (LWCF; 54 U.S.C. Â§Â§200301 et seq.). The 116 th Congress is considering changes to GOMESA, as statutory provisions related to both the moratorium and revenue sharing enter a period of transition.

Summary: GOMESA Moratorium

Summary: GOMESA's leasing moratorium is scheduled to expire in June 2022, and the Department of the Interior's (DOI's) Bureau of Ocean Energy Management (BOEM) has begun to plan for offshore leasing in the moratorium area after the expiration. Some Members of Congress seek to forestall new lease sales in the area by extending the moratorium; others support allowing it to expire on the scheduled date. On September 11, 2019, the House passed H.R. 205 , which would make the GOMESA moratorium permanent. Some other 116 th Congress bills (e.g., H.R. 286 , H.R. 291 , H.R. 341 , H.R. 2352 , H.R. 3585 , and S. 13 ) also would extend the moratorium or make it permanent. By contrast, H.R. 4294 would mandate lease sales in the area directly following the expiration.

Summary: Absent congressional action, the executive branch is to decide whether to offer new oil and gas leases in the GOMESA moratorium area after June 2022. The Trump Administration has indicated interest in pursuing oil and gas leasing in that area after the expiration and has included two lease sales in a preliminary draft of its offshore leasing program for 2019-2024. In addition to economic, budgetary, and environmental considerations in extending or ending the moratorium, a particular issue is potential conflict related to the Department of Defense's (DOD's) intensive use of the area for military testing and training. DOD generally has supported the moratorium and has indicated that, from a defense standpoint, stipulations and restrictions on oil and gas activities would be necessary if the area were to be opened to leasing in 2022.

Summary: GOMESA Revenue Sharing

Summary: A second revenue-sharing phase (referred to as "Phase II") has begun under GOMESA. Compared with GOMESA's first decade (FY2007-FY2016), Phase II requires revenues to be shared from an expanded set of leases. Revenues continue to be shared at a rate of 37.5% with the Gulf producing states and their coastal political subdivisions, and at a rate of 12.5% with the LWCF state assistance program. The remaining 50% of qualified revenues are deposited in the General Fund of the U.S. Treasury as miscellaneous receipts. Revenue sharing from the added Phase II areas is capped annually at $500 million for most years through FY2055 for the four states and LWCF combined.

Summary: Stakeholders have debated whether the Phase II revenue-sharing provisions should remain in place or whether different proportions should be shared with coastal states, used for broader federal programs, or deposited as miscellaneous receipts to the U.S. Treasury. Some Members of Congress seek to increase revenues shared with the Gulf Coast states, for example, by raising or eliminating GOMESA's revenue-sharing cap, increasing the state-shared percentage, or both. In the 115 th Congress, P.L. 115-97 increased the revenue-sharing cap to $650 million for FY2020 and FY2021. Several bills in the 116 th Congress (e.g., H.R. 3814 , H.R. 4294 , and S. 2418 ) would eliminate the cap and raise the state share of qualified revenues to 50%. S. 13 would add Florida as a revenue-sharing state. Other bills have proposed new uses of Gulf oil and gas revenues for other federal programs and purposes outside of revenue sharing; and some stakeholders have proposed to end GOMESA state revenue sharing altogether. Also at issue are questions about the overall adequacy of revenue amounts to fulfill existing and proposed purposes, including considerations about the optimal extent of federal offshore oil and gas leasing in the Gulf and how various policy choices would affect revenue amounts.

T he Gulf of Mexico Energy Security Act of 2006 (GOMESA) altered federal offshore oil and gas leasing policy in the U.S. Gulf of Mexico. The law imposed an oil and gas leasing moratorium through June 30, 2022, throughout most of the Eastern Gulf of Mexico (off the Florida coast) and a small part of the Central Gulf. In other parts of the Gulf of Mexico, the law established a framework for sharing revenues from certain qualified oil and gas leases with the "Gulf producing states" of Alabama, Louisiana, Mississippi, and Texas, as well as with a nationwide outdoor recreation programâthe Land and Water Conservation Fund's (LWCF's) state assistance program.

Several aspects of GOMESA have generated interest in the 116 th Congress. As the 2022 expiration date for the leasing moratorium in the Eastern Gulf approaches, the Department of the Interior's (DOI's) Bureau of Ocean Energy Management (BOEM) has begun to plan for offshore leasing in this area following the moratorium's expiration. BOEM's draft proposed five-year oil and gas leasing program for 2019-2024 would schedule new lease sales in the expired moratorium area starting in 2023. Some Members of Congress seek to forestall new lease sales by extending the moratorium beyond 2022; others support allowing it to expire on the currently scheduled date. On September 11, 2019, the House passed H.R. 205 , which would make the GOMESA moratorium permanent. Congress is weighing the potential for development of hydrocarbon resources in the Eastern Gulf against competing uses of the area for military testing and training, commercial fishing, and recreation. The debate encompasses questions of regional economic livelihoods and national energy and military security, as well as environmental concerns centered on the threat of oil spills and the potential contributions to climate change of oil and gas development.

GOMESA's revenue-sharing provisions also have generated debate and interest in the 116 th Congress. The law entered a second revenue-sharing phase in FY2017âoften referred to as GOMESA's "Phase II"âin which qualified leasing revenues from an expanded geographic area are shared with the states and with the LWCF. Phase II has resulted in higher revenue shares than in the law's first decade (FY2007-FY2016). Revenue sharing from the added Phase II areas is capped for most years at $500 million annually for the Gulf producing states and the LWCF combined, and some Members of Congress seek to raise or eliminate this cap. In the 115 th Congress, P.L. 115-97 increased the cap to $650 million for FY2020 and FY2021. In addition to changing the cap, some Members have advocated to increase the percentage of revenues shared with the Gulf Coast states and to increase the set of qualified leases from which revenues can be shared, as well as to add an additional state (Florida) to the revenue-sharing arrangement. Other bills have proposed new uses of Gulf oil and gas revenues for various federal programs and purposes outside of revenue sharing, and some stakeholders have proposed to end GOMESA state revenue sharing altogether. Debate has centered on the extent to which these revenues should be shared with coastal states versus used for broader federal purposes, such as deficit reduction or nationwide federal conservation programs. Some Members of Congress and other stakeholders have made the case that the coastal states should receive a higher revenue share, given costs incurred by these states and localities to support extraction activities. These stakeholders have compared GOMESA revenue sharing with the onshore federal revenue-sharing program, where states receive a higher share of the federal leasing revenues than is provided under the GOMESA framework. Other Members of Congress, as well as the Obama and Trump Administrations at times, have contended that revenues generated in federal waters belong to all Americans, and revenue distribution should reflect broader national needs.

This report provides brief background on Gulf of Mexico oil and gas development, discusses key provisions of GOMESA, and explores issues related to the Eastern Gulf moratorium and Gulf state revenue sharing. The report discusses various legislative options and proposals for amending GOMESA, as well as scenarios for future leasing if the law continues unchanged.

The Gulf of Mexico has the most mature oil and gas development infrastructure on the U.S. outer continental shelf (OCS), and almost all U.S. offshore oil and gas production (approximately 98%) takes place in this region. Additionally, the Gulf contains the highest levels of undiscovered, technically recoverable oil and gas resources of any U.S. OCS region, according to BOEM. The Office of Natural Resources Revenue (ONRR) estimated federal revenues from offshore oil and gas leases in the Gulf at $5.51 billion for FY2019, out of a total of $5.57 billion for all OCS areas ( Table 1 ). From FY2009 to FY2018, annual revenues from federal leases in the Gulf ranged from a high of $8.74 billion in FY2013 (out of $9.07 billion total OCS oil and gas revenues for that year) to a low of $2.76 billion in FY2016 (out of $2.79 billion total OCS oil and gas revenues for that year). Changing prices for oil and gas are the most significant factors in these revenue swings.

BOEM divides the Gulf into three planning areas: Eastern, Central, and Western. Most of the oil and gas development has taken place in the Central and Western Gulf planning areas. This is due to stronger oil and gas resources in those areas (as compared with the Eastern Gulf) and to leasing restrictions in the Eastern Gulf imposed by statutes and executive orders before GOMESA's enactment.

Eastern Gulf Leasing Prohibitions Prior to GOMESA

Congressional leasing restrictions in some parts of the Eastern Gulf date from the 1980s. Prompted by concerns of some coastal states, fishing groups, and environmentalists, Congress mandated a series of leasing moratoria in certain parts of the OCS, which grew to include the Eastern Gulf of Mexico. The FY1984 Interior Appropriations Act prohibited leasing in any Eastern Gulf areas within 30 nautical miles of the baseline of the territorial sea and in other specified Eastern Gulf blocks. From FY1989 through FY2008, the annual Interior appropriations laws consistently included moratoria in the portion of the Eastern Gulf south of 26Â° N latitude and east of 86Â° W longitude.

Separately, President George H. W. Bush issued a presidential directive in 1990 ordering DOI not to conduct offshore leasing or preleasing activity in multiple parts of the OCSâincluding portions of the Eastern Gulfâuntil after 2000. In 1998, President Bill Clinton used his authority under Section 12(a) of the Outer Continental Shelf Lands Act (OCSLA) to extend the presidential offshore leasing prohibitions until 2012. President Clinton's order expanded the portion of the Eastern Gulf withdrawn from leasing consideration. The withdrawals designated during the Clinton Administration lasted until President George W. Bush modified them in 2008 to open multiple withdrawn areas to leasing. By that time, GOMESA had been enacted, so President Bush's action did not open the Eastern Gulf moratorium area to leasing.

Distribution of Gulf Revenues Prior to GOMESA

Before GOMESA's enactment, federal revenues from oil and gas leasing in most parts of the Gulf were not shared with coastal states. The exception was revenue from leases in certain nearshore federal waters: under Section 8(g) of the OCSLA (as amended), states receive 27% of all OCS receipts from leases lying wholly or partly within three nautical miles of state waters. Gulf Coast states argued for a greater share of the OCS revenues based on the significant effects of oil and gas development on their coastal infrastructures and environments. The states compared the offshore revenue framework to that for onshore public domain leases. Under the Mineral Leasing Act of 1920, which governs onshore oil and gas development, states generally receive 50% of all rents, bonuses, and royalties collected throughout the state, less administrative costs.

GOMESA was signed into law on December 20, 2006. Sections 101 and 102 of the law contain a short title and definitions. Section 103 directs that two areas in the Central and Eastern Gulf be offered for oil and gas leasing shortly after enactment. These mandated lease sales took place in 2007-2009, and this provision of GOMESA has not been a focus of current congressional interest. Current interest has focused on Section 104 of the law, which imposes a moratorium on oil and gas leasing in certain parts of the Gulf, and Section 105, which contains provisions for revenue sharing from qualified leases with four states and their coastal political subdivisions, as well as with the LWCF's state assistance program.

Section 104 of GOMESA states that, from the date of the law's enactment through June 30, 2022, the Secretary of the Interior is prohibited from offering certain areas, primarily in the Eastern Gulf, for "leasing, preleasing, or any related activity." The moratorium encompasses (1)Â areas east of a designated Milit ary Mission Line , defined in the law as the north-south line at 86Â°41Ê¹Â W longitude; (2) all parts of the Eastern Gulf planning area that lie within 125 miles of the Florida coast; and (3) certain portions of the Central Gulf planning area, including any parts within 100 miles of the Florida coast, as well as other specified areas. The resulting total moratorium formed by these overlapping areas is shown in gray in Figure 1 . Section 104 also allows for holders of existing oil and gas leases in some parts of the moratorium area to exchange the leases for a bonus or royalty credit to be used in the Gulf of Mexico.

Section 104 prohibits not only lease sales in the moratorium area but also "preleasing" and other related activities. BOEM has clarified that such preleasing and related activities are not interpreted to include geological and geophysical (G&G) activitiesâsuch as seismic surveysâundertaken to locate resources with the potential to produce commercial quantities of oil and gas. BOEM interprets GOMESA to allow these G&G surveys in the moratorium area.

The moratorium imposed by Section 104 expires on June 30, 2022. The 116 th Congress is debating whether to allow the moratorium to expire as scheduled or to amend GOMESA (or enact other legislation) to potentially further restrict federal oil and gas activity in this area. The following sections discuss scenarios for future leasing in the area under current provisions, legislative proposals to provide for other outcomes, and selected issues for Congress related to the moratorium provisions.

Scenario Under Current Statutory Framework

Absent further action by Congress, after June 30, 2022, the executive branch could potentially offer new oil and gas leases in the expired moratorium area. Under the OCSLA, the Secretary of the Interior could decide to include or exclude the area in future five-year offshore oil and gas leasing programs, based on specified criteria. The OCSLA also gives the President discretion to withdraw the area, temporarily or indefinitely, from leasing consideration, which would render it unavailable for inclusion in a DOI leasing program.

The Trump Administration has indicated interest in pursuing oil and gas leasing in the GOMESA moratorium area after the moratorium's expiration. BOEM's initial draft of a five-year oil and gas leasing program for 2019-2024 (referred to as the "draft proposed program" or DPP) includes two lease sales in the moratorium area, one in 2023 and one in 2024. The DPP proposes to offer all available tracts in the former moratorium area after the expiration. BOEM also indicated that it would analyze two secondary options that would exclude some portions of the moratorium area from the lease sales ( Figure 2 ).

First, BOEM is analyzing a potential "coastal buffer" off Floridaâat distances of 50, 75, 100, or 125 milesâto accommodate military activities and nearshore use. Second, BOEM is separately analyzing a potential 15-mile leasing buffer offshore of Baldwin County, AL, to minimize visual and other impacts to onshore coastal areas. The next draft of the 2019-2024 program is expected to reflect the results of BOEM's analysis. Under the planning process for the program, which is governed by requirements of both the OCSLA and the National Environmental Policy Act, sales listed in the DPP could be retained, modified, or removed in subsequent drafts of the program.

In deciding whether to include the sales (either in their current form or with modifications) in the final leasing program, the Secretary of the Interior must weigh economic, social, and environmental criteria. Among the factors the Secretary must consider under the OCSLA are coastal state governors' views on leasing off their coasts. Recent governors of Florida, the state most closely adjacent to the moratorium area, generally have expressed opposition to leasing in this area. Governors of other Gulf Coast statesâAlabama, Louisiana, Mississippi, and Texasâgenerally have expressed support for oil and gas leasing in the Eastern Gulf.

The Secretary also must consider the views of other affected federal agencies. One key agencyâDODâhistorically has opposed new leasing in the area, due to DOD's use of this part of the Gulf as a military testing and training ground (see " Military Readiness "). Both DOD and the Gulf producing states, along with some Members of Congress and many other stakeholders, submitted public comments on the 2019-2024 DPP. These comments are to be taken into account in the second draft of the program. Another round of public comment is expected to be solicited before the program could be finalized.

The oil and gas industry has indicated interest in leasing in the moratorium area. Some industry representatives have stated that the Eastern Gulf represents a more attractive leasing prospect than other OCS areas currently unavailable for leasing (e.g., the Pacific and Atlantic regions) because data on the Eastern Gulf are better developed than for these other areas, and nearby infrastructure is already in place to facilitate exploration and development. Industry representatives have expressed particular interest in the deepwater Norphlet play, which spans parts of the Eastern and Central Gulf.

A number of legislative proposals in the 116 th Congress have sought to extend GOMESA's moratorium or permanently prohibit leasing in the moratorium area. By contrast, other legislation would mandate lease sales in the area directly following the moratorium's current expiration date. Table 2 summarizes provisions of relevant 116 th Congress bills. Two of these bills, H.R. 4294 and S. 13 , include provisions affecting GOMESA revenue sharing, discussed further in Table 5 .

One proposal related to the moratorium has passed the House of Representatives in the 116 th Congress: H.R. 205 , the Protecting and Securing Florida's Coastline Act of 2019. The bill would amend GOMESAâto extend the Eastern Gulf moratorium indefinitely, thus precluding future oil and gas leasing in the area. In its report on the bill, the House Natural Resources Committee stated that a continued moratorium is necessary because leasing in the Eastern Gulf would compromise military readiness and "pose existential threats to Florida's tourism, fishing, and recreation economy, which rely on clean water and healthy beaches." In dissenting views, some committee members contended that oil and gas leasing in the area could successfully coexist with fishing, tourism, and military operations, and pointed to the role of Gulf oil and gas revenues in funding environmental restoration activities and land protection.

Bills in earlier Congresses sought other types of outcomes related to the GOMESA moratorium. For example, some legislation would have enabled leasing in portions of the moratorium area before the 2022 expiration date, effectively shrinking the moratorium area. Other legislation would have prohibited some activities in the moratorium area that are not currently restricted by GOMESA, such as seismic surveys or research on potential areas for offshore drilling. These proposals have not been included to date in 116 th Congress legislation.

An extension of GOMESA's leasing prohibitions could result in a loss to the government of future federal revenues (to the extent that leasing and commercial production would otherwise take place when the moratorium expires). Also, some oil and gas industry advocates have contended that future development in the Eastern Gulf could contribute billions of dollars annually to the nation's gross domestic product, mainly through contributions to Gulf state economies, which they contend would be lost were the moratorium to continue. By contrast, some in the commercial fishing, tourism, and recreation sectors have focused on potential economic costs to these sectors if oil and gas development takes place off the coast of Florida, with particular emphasis on potential financial losses if a major oil spill were to occur. They point to estimates showing significant costs to these industries from the 2010 Deepwater Horizon oil spill. Other stakeholders express concern that any oil and gas activities in these areas would contribute to greenhouse gas emissions and human-induced climate change, with accompanying direct and indirect costs.

The Congressional Budget Office (CBO) has estimated certain budgetary effects of a moratorium extension in relation to budget projections under existing law. CBO has estimated that bills to extend the moratorium would reduce offsetting receipts and thus increase direct federal spending. As a result, such bills may be subject to certain budget points of order unless offset or waived. For example, for the version of H.R. 205 reported by the House Committee on Natural Resources, CBO estimated that the bill's extension of GOMESA's moratorium would increase direct spending by $400 million over 10 years.

The extent to which the GOMESA moratorium is needed for U.S. military readiness also has been at issue. The area east of the Military Mission Line in the Eastern Gulf provides about 101,000 square miles of surface area and overlying air space, which is the largest overwater DOD test and training area in the continental United States. DOD historically has expressed a need for an oil and gas leasing moratorium in this area. For instance, in 2006, DOD stated that its testing and training activities in the Eastern Gulf were "intensifying" and requiredâ"large, cleared safety footprints free of any structures on or near the water surface." In 2017, DOD wrote that the agency "cannot overstate the vital importance of maintaining this moratorium.... Emerging technologies such as hypersonics, autonomous systems, and advanced sub-surface systems will require enlarged testing and training footprints, and increased DoD reliance on the Gulf of Mexico Energy Security Act's moratorium beyond 2022." More recently, in a 2018 report to Congress on preserving military readiness in the Eastern Gulf, DOD wrote:

No other area in the world provides the U.S. military with ready access to a highly instrumented, network-connected, surrogate environment for military operations in the Northern Arabian Gulf and Indo-Pacific Theater. If oil and gas development were to extend east over the [Military Mission Line], without sufficient surface limiting stipulations and/or oil and gas activity restrictions mutually agreed by the DoD and Department of Interior (DoI), military flexibility in the region would be lost and test activities severely affected.

Some Members of Congress and other stakeholders have interpreted the wording of the 2018 reportâparticularly its phrase "without sufficient surface limiting stipulations and/or oil and gas activity restrictions"âas signaling a greater DOD openness to oil and gas activities in the moratorium area than had been expressed in some earlier DOD communications. The phrasing might be read to suggest that military readiness and oil and gas development could be mutually accommodated, given appropriate stipulations and restrictions. Oil and gas leases awarded in the Central and Western Gulf often contain stipulations related to military activities, such as those requiring the lessee to assume risks of damage from military activities, to control electromagnetic emissions in defense warning areas, to consult with military commanders before entering some areas, and/or to evacuate areas as needed for military purposes. BOEM also typically reserves the right to temporarily suspend a lease in the interest of national security.

The 2018 report does not clarify what types of lease stipulations and restrictions might be necessary to accommodate the more intensive testing and training activities in the Eastern Gulf. The report states that some military activities in this area may be incompatible with the presence of fixed or mobile oil platforms. The report expresses concerns that increased vessel traffic and underwater noise could jeopardize some military activities. It also discusses concerns about potential foreign observation of DOD activities, if foreign entities are allowed to control offshore assets or otherwise conduct business near military ranges in the Eastern Gulf. If these military concerns were to lead to more stringent restrictions on oil and gas operations than are mandated in other parts of the Gulf, a question would be how such restrictions might affect industry interest in bidding on leases in the Eastern Gulf. In its cost estimate for H.R. 205 , CBO identified defense-related constraints (and the potential incompatibility of some development with Florida's Coastal Management Program) as factors that could reduce the value of Eastern Gulf leases to industry bidders. However, some industry representatives have expressed consistent interest in leasing in the area and have contended that economic returns on leases in this area would be substantial, despite potential restrictions related to military activities.

Section 105 of GOMESA provides for federal revenues from certain qualified leases in the Gulf of Mexico to be shared under specified terms with four Gulf producing statesâAlabama, Louisiana, Mississippi, and Texasâand their "coastal political subdivisions" or CPSs (e.g., coastal counties or parishes), as well as with the LWCF state assistance program. Specifically, each year the Secretary of the Treasury is to deposit 50% of qualified revenues in a special account (the remaining 50% are deposited in the General Fund of the U.S. Treasury as miscellaneous receipts). From this special account, the Secretary disburses 75% of funds to the Gulf producing states and their CPSs, and 25% to the LWCF state assistance program. Accordingly, of the total qualified revenues in a given year, the states and CPSs receive 37.5% (i.e., 75% of the 50% in the special account), and the LWCF receives 12.5% (25% of the 50%).

The law's definition of "qualified" OCS revenues differs for the first decade after GOMESA's enactment (FY2007-FY2016) versus for subsequent years. For FY2007-FY2016 (often referred to as GOMESA's Phase I), the law defines qualified OCS revenues to include all bonus bids, rents, royalties, and other sums due and payable to the United States from leases in the Eastern Gulf and the Central Gulf's 181 South Area entered into on or after the date of GOMESA's 2006 enactment. These are the relatively small areas shown as areas A and B in Figure 1 . For FY2017 and beyond (Phase II), the geographic area of qualified revenues expands. In addition to revenues from post-2006 leases in the Phase I areas, the qualified revenues in Phase II include those from post-2006 leases in the Central Gulf's portion of the 181 Area, shown as areaÂ C in Figure 1 . The Phase II qualified revenues also include the "2002-2007 planning area"âthe large area shown in yellow in Figure 1 , encompassing most of the Western and Central Gulf, where the bulk of production takes place. Accordingly, revenues qualified for sharing in Phase II are likely to be notably higher than in Phase I ( Table 3 ).

For the added Phase II areas, Section 105 stipulates that the total amount of qualified revenues made available each year to the states and their CPSs and the LWCF (collectively) shall not exceed $500 million for each of FY2016-FY2055. A later law, P.L. 115-97 , raised the cap to $650 million for two of these years, FY2020 and FY2021. Given the percentage distributions specified in the law for each recipient, the amounts that can be shared with states and their CPSs from the added Phase II areas are capped at $375.0 million in most years (and $487.5 million in FY2020 and FY2021). The amounts that can be shared with the LWCF are capped at $125.0 million in most years (and $162.5 million in FY2020 and FY2021).

Phase II began with FY2017 revenues, but GOMESA specifies that revenues shall be shared with recipients in the fiscal year immediately following the fiscal year in which they are received. Thus, in terms of payments, the first fiscal year reflecting Phase II revenue sharing was FY2018. The shared revenues rose notably in that year compared with previous years. Table 3 shows GOMESA revenue distributions since the law's enactment, with the transition from Phase I distributions to Phase II distributions occurring between FY2017 and FY2018.

GOMESA directs the Secretary of the Interior to establish a formula to allocate each year's qualified state revenues among the four Gulf producing states and their CPSs. The allocations to each state primarily depend on its distance from leased tracts, with states closer to the leased tracts receiving a higher share. The law additionally provides that each state must receive an annual minimum of at least 10% of the total amount available to all the Gulf producing states for that year. Further, GOMESA directs that the Secretary shall pay 20% of the allocable share of each Gulf producing state to the state's CPSs. See the box below for additional details on the state allocations.

GOMESA authorizes the states and CPSs to use revenues for the following purposes:

Projects and activities for the purposes of coastal protection, including conservation, coastal restoration, hurricane protection, and infrastructure directly affected by coastal wetland losses. Mitigation of damage to fish, wildlife, or natural resources. Implementation of a federally approved marine, coastal, or comprehensive conservation management plan. Mitigation of the impact of OCS activities through the funding of onshore infrastructure projects. Planning assistance and the administrative costs of complying with GOMESA. (No more than 3% of a state or CPS's revenues may be used for this purpose.)

The following sections discuss the scenario for GOMESA revenue sharing under the law's current provisions, summarize legislative proposals for changes, and explore selected issues.

Under GOMESA, revenue sharing with the states and LWCF continues indefinitely, and the annual cap on shared revenues from the Phase II areas continues through FY2055. After that year, all qualified Gulf revenues would be shared under the current formulaâ37.5% to states and their CPSs and 12.5% to the LWCFâregardless of whether the shared amount from the Phase II areas exceeds $500 million.

DOI, in its annual budget justifications, develops five-year projections of qualified GOMESA revenues. Table 4 shows DOI projections for FY2020-FY2024 shared revenues (which are half of all qualified revenues), by revenue collection year. The revenues collected in a given year would be shared with the states and LWCF in the following fiscal year. In general, the DOI projections for a given year have not always been consistent over time. Changing oil prices have been a major factor in revised projections.

Under the current scenario, the majority of the moratorium areaâthe portion shown in gray in Figure 1 âdoes not qualify for revenue sharing, even after the moratorium ends in June 2022. Instead, any revenues from oil and gas leasing and development in this area after the moratorium expires would go entirely to the Treasury. Also, GOMESA does not provide for revenue sharing with Florida, although some of the qualified revenue-sharing areasâsuch as portions of the 181 Areaâare closer to Florida than to the other Gulf producing states.

In the 116 th Congress, several bills would amend GOMESA to increase the portion of qualified revenues shared with the Gulf producing states by raising the states' percentage share, eliminating the revenue-sharing cap, or both. Some legislation also would expand the purposes for which states may use the GOMESA revenues, modify the uses of the LWCF share, or add Florida to the revenue-sharing arrangement. Table 5 describes selected relevant bills and their provisions. None of the bills has been reported from committee in the 116 th Congress.

In contrast with bills that would increase the state revenue share, some legislative proposals in earlier Congresses would have ended state revenue sharing under GOMESA. For example, in the 114 th Congress, would have amended GOMESA to provide that 87.5% of qualified revenues under the law would be deposited in the Treasury's General Fund, while 12.5% would continue to be provided for LWCF financial assistance to states. This proposal is similar to some legislative proposals in DOI budget requests under the Obama and Trump Administrations (see " Determining the Appropriate State Share ").

Members of Congress differ in their views on the extent to which Gulf Coast states should share in revenues derived from oil and gas leasing in federal areas of the Gulf. State officials from the Gulf producing states and some Members of Congress have expressed that the Gulf producing states should receive a higher share than is currently provided under GOMESA, given the costs they incur to support offshore extraction activities. These stakeholders have argued that the revenues are needed to mitigate environmental impacts and to maintain the necessary support structure for the offshore oil and gas industry. For example, at a 2018 hearing of the House Committee on Natural Resources, former Senator Mary Landrieu stated: "It is important to note that revenue sharing was established â¦ to recognize the contributions that states and localities make to facilitate the extraction and production of these resources, including the provision of infrastructure to enable the federal activity: transportation, hospitals, schools and other necessary governmental services." Advocates have emphasized that Gulf Coast areas, especially coastal wetlands, face significant environmental challenges, owing in part to hydrocarbon development (among other activities). These advocates have contended that additional federal revenues are critical to address environmental challenges and economic impacts of wetland loss. Advocates point to a disparity between the 37.5% state share provided under GOMESA and the 50% share of revenues that most states receive from onshore public domain leases under the Mineral Leasing Act. They contend that a comparable state revenue share under GOMESA would significantly contribute to coastal wetland restoration, given GOMESA's requirement that the Gulf producing states use the funding to address coastal protection, damage mitigation, and restoration (and given comparable requirements under some state laws).

By contrast, some other Members of Congress, as well as the Obama and Trump Administrations at times, have contended that GOMESA revenue sharing with the states should be reduced or eliminated to facilitate use of these revenues for broader national purposes. They have argued that, since the OCS is a federal resource, the benefits from offshore revenues should accrue to the nation as a whole, rather than to specific coastal states. Under the Obama Administration, DOI budget requests for FY2016 and FY2017 recommended that Congress repeal GOMESA state revenue-sharing payments and direct a portion of the savings to programs that provide "broad â¦ benefits to the Nation," such as a proposed new Coastal Climate Resilience Program "to provide resources for at-risk coastal States, local governments, and their communities to prepare for and adapt to climate change." Legislation in the 114 th Congress ( S. 2089 ; see " Legislative Proposals ") would have amended GOMESA to eliminate the state revenue sharing and provide for the state share to go to the Treasury's General Fund. For FY2018, the Trump Administration proposed that Congress repeal GOMESA's state revenue-sharing provisions, in order to "ensure [that] the sale of public resources from Federal waters owned by all Americans, benefit all Americans." The Trump Administration has not included similar proposals in subsequent budget requests, and no legislation to reduce or eliminate GOMESA state revenue sharing has been introduced to date in the 116 th Congress.

Set of Leases Qualified for Revenue Sharing

Although Phase II of GOMESA considerably expanded the set of leases contributing to revenue sharing, some Gulf leases still do not qualify, because the law applies only to leases that were entered into on or after the date of GOMESA's enactment (December 20, 2006). It appears from 2019 leasing data maintained by BOEM that approximately 61% of the more than 2,500 active leases in the Gulf of Mexico were entered into on or after the enactment date, and thus would qualify for revenue sharing under GOMESA's current terms. However, the majority of these newer leases are not producing oil and gas; and leases awarded before GOMESA's enactmentâwhich do not qualifyâcontinue to contribute a substantial portion of production royalties. For this reason, the percentage of Gulf revenues subject to GOMESA sharing is much smaller than the percentage of Gulf leases subject to GOMESA sharing. For example, of federal offshore revenues disbursed in FY2019 (the high majority of which come from the Gulf), GOMESA-qualified revenuesâincluding those distributed to states and their CPSs, the LWCF state grant program, and the Treasury combinedâconstituted 18% of the total. The percentage of total revenues that qualify for sharing under GOMESA might be expected to increase over time, to the extent that older leases gradually terminate and current and future leases begin producing.

Some Members of Congress have proposed that GOMESA's terms be altered to include an expanded set of leases in the qualified sharing group. For instance, in the 116 th Congress, S. 2418 would amend GOMESA to define the qualified leases as those entered into on or after October 1, 2000, rather than after GOMESA's 2006 enactment. According to BOEM data as of November 2019, this would more than double the number of producing leases eligible for GOMESA revenue sharing (although the addition in total leases would be relatively small). The result could be a higher revenue share with the states and their CPSs and the LWCF state grant program. Some other Members do not favor this type of change because it could reduce the portion of offshore revenues going to the Treasury for other federal purposes.

Revenue Amounts and Adequacy for Legislative Purposes

Offshore oil and gas revenues support a variety of federal and state activities, through amounts deposited annually in the LWCF and the Historic Preservation Fund (HPF) and through revenues shared with states under revenue-sharing laws. Revenue totals have fluctuated from year to year ( Table 1 ), raising questions about whether future revenues will be adequate to support these various activities and whether new legislation for offshore revenue distribution would strain available amounts. For example, some Members of Congress have considered whether raising GOMESA's state revenue share would result in insufficient funds to meet statutory requirements for deposits to the LWCF and HPF. Alternatively, some Members have questioned whether proposals to use offshore revenues for new conservation programs would reduce state sharing under GOMESA and jeopardize programs supported by the state-shared funds.

Thus far, in each year since GOMESA's enactment, OCS revenues have been sufficient to provide for all distributions under current law. If bills in Table 5 were enacted to raise the GOMESA state revenue share to 50% and eliminate the revenue-sharing cap for states, it appears that, based on DOI projections for FY2020-FY2024, OCS revenues remaining after state sharing would still be more than sufficient to meet statutory requirements for deposits to the LWCF and HPF in these years. Various economic factors or policy decisions could affect these DOI projections, and under some theoretical scenarios, enactment of bills to increase the state share could affect the sufficiency of revenues to cover other legislative requirements.

Similarly, under some scenarios, legislative proposals to fund new conservation programs with offshore revenues could affect amounts shared with the states under GOMESA. Whether this would occur would depend partly on the terms of the legislative proposals. For example, S. 500 and H.R. 1225 in the 116 th Congress would establish a new deferred maintenance fund for specified federal lands supported partly by offshore energy revenues. These proposals address the issue of revenue availability by specifying that the new deferred maintenance fund would draw only from miscellaneous receipts deposited to the Treasury after other dispositions are made under federal law. That is, if revenues were insufficient to provide for the funding amounts specified under these bills along with the other distributions required in law, it appears that the requirements of current laws (including GOMESA) would be prioritized.

Also relevant are proposals by some Members of Congress and other stakeholders to significantly curtail or end OCS oil and gas leasing, in response to climate change concerns. Depending on the extent to which offshore production decreased, such policy changes could result in an insufficiency of revenues to meet all statutory requirements, especially over the long term as production from existing leases diminished. Some supporters of reducing or eliminating federal offshore oil and gas leasing have suggested that other revenue sources, such as from an expansion of renewable energy leasing on federal lands, should be found for desired federal programs. Some opponents of curtailing offshore oil and gas leasing have pointed to the revenue implications as an argument against such actions.

Bills that would increase the state share of GOMESA revenuesâby giving the states a higher revenue percentage, eliminating revenue-sharing caps, or bothâhave been identified by CBO as increasing direct spending. For example, in cost estimates for 115 th Congress legislationâwhich would have made similar state-sharing changes to those proposed in H.R. 3814 , H.R. 4294 , and S. 2418 ( Table 5 )âCBO estimated that these changes would increase direct spending of OCS receipts by $2.1 billion over a 10-year period. As a result, such legislation may be subject to certain budget points of order unless offset or waived. As of January 2020, CBO has not released cost estimates for the 116 th Congress bills discussed in Table 5 (none of which has been reported from committee), and it is unclear how CBO would estimate costs associated with those bills or whether some provisions in those bills might be estimated to offset costs of other provisions. For example, H.R. 4294 contains provisions to repeal presidential withdrawals of offshore areas from leasing consideration and to facilitate offshore wind leasing in U.S. territories, among others. CBO scored similar provisions in 115 th Congress bills as increasing offsetting receipts (and thus partly offsetting bill costs).

Under GOMESA's current provisions, Florida is not among the Gulf producing states eligible for revenue sharing. Some proposals, including S. 13 in the 116 th Congress, would add Florida to the group of states receiving a revenue share. Because the high majority of Gulf leasing takes place in the Western and Central Gulf planning areas, which do not abut Florida, Florida's share of GOMESA revenues if S. 13 were enacted would likely be lower than those of the other Gulf Coast states, especially Louisiana and Texas. Nonetheless, since GOMESA provides that every Gulf producing state must receive at least 10% of the annual state revenue share, adding Florida to the Gulf producing states would provide at least that portion of GOMESA revenues for Florida and would correspondingly reduce the total available to the other Gulf producing states.

Some Florida stakeholders have opposed legislation to add Florida to GOMESA revenue sharing on the basis that doing so could incentivize eventual oil and gas development off Florida. Others support a continued moratorium off Florida and support giving Florida a revenue share from leasing elsewhere in the Gulf. These stakeholders contend that Florida bears risks from oil and gas leasing elsewhere in the Gulf (particularly related to potential oil spills) and so should also see benefits. This position is captured in S. 13 , which would extend the GOMESA moratorium through 2027 and add Florida as a revenue-sharing state. Still others support adding Florida as a revenue-sharing state as part of a broader change to allow leasing and revenue sharing in areas offshore of Florida. Supporters of this approach, including some from the current Gulf producing states, may contend that an increase in the number of states that share GOMESA revenues should be accompanied by a growth in the area qualified for revenue sharing to reduce the likelihood of a smaller share for the original four states.

The current period is one of transition for the oil and gas leasing framework established by GOMESA for the Gulf of Mexico. First, the Eastern Gulf leasing moratorium is set to expire in 2022, and BOEM is proposing offshore lease sales for the moratorium area starting in 2023. Second, the Gulf leases subject to revenue sharing expanded substantially starting in FY2017, and DOI projects revenues from these areas will approach or reach GOMESA's revenue-sharing cap in FY2024. Congress is considering whether GOMESA's current provisions will best meet federal priorities going forward, or whether changes are needed to achieve various (and sometimes conflicting) national goals.

Regarding the moratorium provisions, a key question is whether decisions about leasing in the Eastern Gulf should be legislatively mandated or left to the executive branch to control. Absent any legislative intervention, after June 2022, the President and the Secretary of the Interior are to decide whether, where, and under what terms to lease tracts in the former moratorium area, following the statutory provisions of the OCSLA. Some Members of Congress seek to amend GOMESAâeither to extend the moratorium or to mandate lease sales in the areaârather than deferring to the OCSLA's authorities for executive branch decisionmaking. At stake are questions of regional and national economic priorities, environmental priorities, energy security, and military security.

With respect to Gulf oil and gas revenues, GOMESA's current revenue-sharing provisions take into account multiple priorities: mitigating the impacts of human activities and natural processes on the Gulf Coast (through state revenue shares directed to this purpose); supporting conservation and outdoor recreation nationwide (through the LWCF state assistance program); and contributing to the Treasury. For the most part, legislative proposals to change the terms of GOMESA revenue distribution have supported some or all of these priorities but have sought to change the balance of revenues devoted to each purpose. Also at issue are proposals to use the revenues for new (typically conservation-related) purposes outside the GOMESA framework, as well as proposals to substantially reduce or eliminate Gulf oil and gas productionâwith corresponding revenue implicationsâin the context of addressing climate change. The 116 th Congress is debating such questions as it considers multiple measures to amend GOMESA.