Principal Parker Moore (Washington, DC) was quoted in a February 11 article in Law360 titled "Greens, Industry Call Critical Habitat Rule Fatally Flawed." The article discusses two recently finalized rules governing the designation of critical habitat area for listed species under the Endangered Species Act (ESA) and the definition of “destruction and adverse modification” of critical habit.

In the article, Parker explains why he thinks the rules will be vulnerable to legal challenge. "I think the rules are a significant expansion [of existing regulatory programs] under the guise of discretion," he stated.

Parker also noted that the U.S. Fish and Wildlife Service went to great lengths to reject stakeholder requests to revise the proposed rules to harmonize them with the requirements of the ESA and the Service’s existing regulatory programs. “There were virtually no substantive revisions to the proposed rules, which is somewhat unusual, particularly when you had comments that were submitted by a range of stakeholders, both on the industry side and on the environmental side, that really called into question the legality of both of the rules that were proposed.”

He concluded that there likely will be legal challenges to the final rules from the industry side and the environmental side because the agency did not address those well-reasoned legal arguments. “I would predict that both have winning arguments that they can make,” he said.

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