Brooke Marcus Comments on Impact of Endangered Species Blanket Rule Provision

Brooke Marcus was quoted in the Bloomberg Law story “Endangered Species Rule to Face Legal Challenges From All Sides.” The story examines how the Biden administration’s recent endangered species rules are vulnerable to court challenges by environmentalists and industry groups as the proposals retain a number of Trump-era provisions while also including safeguards that raise the ire of developers.

One of the provisions in the proposals that is contentious is the “blanket” provision, which was a rule for decades until it was abolished by the Trump administration in 2019. The provision automatically extends endangered species protections to species that are newly listed as threatened unless U.S. Fish & Wildlife Service (FWS) promulgates a species-specific rule limiting the protections to the threatened species.

Commenting on the impact of the blanket rule if reinstated, Brooke said the FWS “is likely to treat endangered and threatened species the same indefinitely without taking the ‘extra step’ of writing a less-stringent rule for a specific threatened animal or plant.” She added, “The rule would increase costs for developers because they’ll need to obtain a FWS permit for incidental harm of a threatened species as part of a project.”