Rescinding the blanket 4(d) rule is good for species and people

At the close of 2025, the Fish and Wildlife Service (FWS) proposed to rescind the blanket 4(d) rule in part due to a lawsuit brought by the Property and Environment Research Center (PERC) and the Rocky Mountain Elk Foundation (RMEF). If the agency goes through with its plan, it will be the second time the rule has been rescinded in the last seven years. CEI submitted a comment on this recently-proposed rule, whose comment period closed on December 22, 2025.

Many parts of the Endangered Species Act (ESA) apply to both threatened and endangered species. Because endangered species are at greater risk of extinction, Congress added provisions in the law that apply to them but not threatened species. Namely, the ESA’s Section 9 prohibition against “take” automatically applies to endangered, but not threatened, species. However, the blanket 4(d) rule ignores this and automatically applies the prohibition against take to all threatened species as well. As a result, threatened and endangered species are essentially regulated the same way.

The blanket 4(d) rule is problematic for many reasons. To start, it is inconsistent with the ESA. The statute is clear that the prohibition against take automatically applies to endangered species and can apply to a threatened species on a case-by-case basis, but only under certain conditions. Specifically, the Secretary of Interior must show that applying the prohibition is ‘necessary and advisable.’ Yet, the blanket rule circumvents the ‘necessary and advisable’ analysis and thus is unauthorized under the ESA.

Additionally, the prohibition against take is one of the most direct ways the ESA regulates activities on private property. As a result, property owners are often forced to concede their property rights, pay fines, or face other penalties for partaking in what are otherwise normal activities. This places a disproportionate share of the cost of protecting species on individuals rather than on society at large. The blanket rule makes this problem worse by greatly expanding the number of property owners who are affected.

The rule also creates perverse incentives. When the prohibition against take is only automatically applied to endangered species, but not threatened species, regulated property owners have an incentive to promote species conservation. This is because property owners are rewarded by having burdensome regulations lifted when endangered species recover. Similarly, property owners have an incentive to prevent the decline of threatened species to avoid harsher regulations being imposed on them. However, under the blanket rule, this incentive structure doesn’t exist. In fact, the only incentive property owners have is to ‘shoot, shovel, and shut up’ with the hope that they are never regulated in the first place.

Rescinding the blanket rule is a good way to help species recover and to make the ESA work better for people. The FWS should be applauded for reintroducing sound policy to species management.

For further discussion, read CEI’s regulatory comment on the proposed rule here.