On March 31, 2026, the “God Squad” convened for the first time in more than 30 years. The Endangered Species Act (ESA) prohibits federal actions that could jeopardize the continued existence of an endangered or threatened species, but this group—the Endangered Species Committee—has the power to exempt activities from that requirement. In the span of 15 minutes, the committee met, voted, and approved an exemption for oil and gas activities in the Gulf of Mexico—activities that the National Marine Fisheries Service determined last year could jeopardize the continued existence of an endangered whale species.

The action is remarkable in several respects.

First, the committee did not act under the normal ESA section 7 exemption process (itself used only three times since its creation in 1978). That process involves extensive factual development through a report and hearings and includes notice to the public about the exemption sought and the basis for it. The committee must then consider the public interest and importance of the action and whether the action can be taken in a different way that does not require an exemption. And when granting an exemption, the committee must designate measures to minimize the harmful effects on species and habitats. But for the first time ever, the committee met to use a different exemption provision, granting an “exemption for national security reasons,” resting entirely on “national security findings” from the Secretary of Defense. That action overrides an expert agency’s determination about needed protections for endangered species without any factual development, public notice, and reasoned deliberation.

Second, oil and gas operators did not seek an exemption from the requirements of ESA section 7 or from w hale protection measures required by the 2025 Biological Opinion regarding offshore oil and gas activities in the Gulf. A normal exemption process must be initiated by a project applicant (or the federal agency authorizing some action). Here, there is no application. And more broadly, it does not appear that industry asked for or is celebrating the exemption. Although energy companies have lobbied the federal government about easing requirements for oil and gas development, after the committee’s meeting, the American Petroleum Institute offered only tepid support in official statements. Reports indicate that neither API nor an individual operator asked for the exemption. Indeed, the national security findings that underlie the committee’s exemption decision do not rest on the industry’s ability to meet the measures for protecting the endangered Rice’s whale.

Third, the exemption process—initiated by the Secretary of Defense rather than any entity subject to these measures—was based on concerns that litigation under the ESA might in the future disrupt oil and gas production or chill investment in offshore development in the Gulf. The Secretary tied these litigation concerns to national security, stating, “If our ability to extract Gulf oil is disrupted, our ability to support military operations and readiness will also be disrupted.” While Congress has provided and the military has used exceptions from environmental statutes in some circumstances, those have never been based on a fear of litigation’s effects on private actors. That litigation-private industry-national security basis is untethered from Congress’s recognition that the military will occasionally require exemption from the normal application of environmental law. For instance, after a court enjoined the Navy for violating laws including the Coastal Zone Management Act (CZMA), President George W. Bush exempted Navy training exercises from the CZMA, finding that important parts of those training exercises were “essential to national security” and in the “paramount interest of the United States.” Congress in 2004 amended the Marine Mammal Protection Act through the National Defense Authorization Act to give the Secretary of Defense the ability to exempt military readiness activities from the Act’s requirements when necessary for national defense. These actions have been controversial, but they have at least had a direct connection to military activities. In contrast, the “national security” explanation at the heart of this ESA exemption is at best tangentially related to military operations, as it exempts private activities to avoid theoretical litigation-related disruptions that could possibly have secondary effects on fuel supplies or that could, according to the Secretary of Defense, “benefit our adversaries and hurt our allies.”

Fourth, and relatedly, by using a unilateral exemption procedure—one that rests only on a secretarial finding and that seemingly affords the committee no discretion—the executive branch stepped into a role more typically occupied by Congress. Congress is no stranger to its own power to shape the ESA’s application or to remove specific projects or species from its reach. And to be sure, Congress has reacted to litigation around the Act. For example, Congress in 1979 created an exemption for the Tellico Dam (the project that underlay TVA v. Hill and led to creation of the ESA exemption process), allowing the dam to be built even after the newly-created Endangered Species Committee, using the normal exemption process, determined no exemption was warranted. And in 2011, Congress directed that the gray wolf be removed from the endangered species list in Montana and Idaho. While both congressional actions bypassed the normal determinations of expert wildlife agencies or the Endangered Species Committee, they at least extended from the branch that arguably has the most democratic accountability. Congress acted with the benefit of years of public engagement on these issues. It is telling that while Congress has the power to intervene in response to an out-of-balance application of the ESA to oil and gas activities in the Gulf, it has not done so here. Instead, the Secretary of Defense has taken unilateral action removed from any normal administrative or political process.

Fifth, the administration has also preempted the courts’ consideration of appropriate remedies where ESA requirements are not met. The secretary’s finding cites a “substantial risk” that ESA determinations under section 7 “will be vacated” in pending or future litigation, which “would halt oil and gas exploration and development” in the Gulf. No such vacatur in fact appears imminent. And this step was unnecessary, as courts already have tools to consider the disruptive effects of vacatur before ordering that or another remedy. The administration’s unilateral action preemptively removes courts’ ability to make that determination in the first place, evincing a distrust of the judicial branch.

The Endangered Species Committee’s action has now been challenged in several lawsuits. Through those suits, we will soon learn whether this action is remarkable in yet another way: is it unreviewable? While the statute directs that normal exemption decisions are reviewable under the Administrative Procedure Act, the government may attempt to argue that the committee had no discretion to reach a different decision, as the statute directs that the “Committee shall grant an exemption . . . if the Secretary of Defense finds that such exemption is necessary for reasons of national security.” And while groups have also challenged the national security finding as arbitrary and capricious, the government may argue that the question of national security necessity is committed to the Secretary’s discretion as a matter of law or presents an unreviewable political question. If challengers clear those hurdles, the government will face an awkward task: arguing to a court that the exemption was necessary because courts are untrustworthy.

Together, these aspects of the administration’s use of the national security exemption provision based on potential future litigation risks tell a coherent story: one where the executive (embodied not by the agency whose work has been overridden, but by the Secretary of Defense) may alone decide what protections are necessary for endangered species. No applicant sought this result, Congress has not seen fit to intervene, no courts are (in the administration’s view) to be trusted. And, perhaps if the administration has its way, no one can stop it.

That conception of executive power would turn the ESA’s national security exemption from a safety valve allowing a controlled release into a blowout with no failsafe.

Andrew C. Mergen is the Faculty Director of the Emmett Environmental Law & Policy Clinic at Harvard Law School. Erika B. Kranz is a staff attorney at the Environmental & Energy Law Program at Harvard Law School.