Brooke M. Marcus

Brooke Marcus is a natural resources lawyer focused on assisting the renewable energy sector with maintaining compliance with environmental laws. She is go-to counsel for matters involving the Endangered Species Act (ESA), the Migratory Bird Treaty Act (MBTA), the Bald and Golden Eagle Protection Act (BGEPA), Clean Water Act (CWA) the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA).

Brooke counsels some of the nation’s largest wind, solar and storage energy companies, electric generation and transmission companies, and investment companies on policy-level and project-specific issues arising under ESA, BGEPA, MBTA, CWA and NEPA. Brooke assists wind, solar, storage, and transmission line project developers with federal, state and local environmental and land use compliance strategies. She currently assists project proponents in the development of dozens of Habitat Conservation Plans (HCPs) and BGEPA permits, and ESA, BGEPA, NEPA, and CWA compliance strategies within every region of the U.S. Fish and Wildlife Service. Brooke also advises clients on policy-level issues related to the ESA, BGEPA, MBTA and NEPA and often represents her clients in Washington D.C. on related policy issues.

Brooke regularly provides natural resources and environmental support for renewable project financing and advises investors and power purchasers on federal wildlife and other environmental issues for potential renewable acquisitions. She also serves as consulting counsel for natural resource litigation. She has advised clients on issues related to compliance with state and local environmental and land use regulations. She has worked extensively on mitigation transactions and negotiated and developed the first programmatic species conservation bank in the country on behalf of the lesser prairie chicken.

Brooke speaks and teaches on ESA, MBTA, BGEPA, NEPA and CWA issues in many different industry forums across the nation. She has spoken at the American CleanPower Association’s annual environmental and siting conference on many occasions since 2014. From 2014-2017, she has served as vice chair of the Endangered Species Committee newsletter for the ABA Section of Environment, Energy and Resources. Brooke co-chairs CLE International's Annual MBTA & BGEPA Conference. Brooke has presented at the University of Texas Renewable Energy Law Conference and served on the Planning Committee. Each year she regularly guest lectures at the University of Texas at Austin School of Law on federal wildlife risk and renewable energy development and teaches several courses each year for EUCI.

Experience

The following are representative examples of Brooke’s experience successfully supporting energy projects across the country.

FEDERAL WILDLIFE POLICY

• Leader of the legal team leading the Energy and Wildlife Action Coalition (EWAC), a growing national coalition of utilities and renewable energy companies. EWAC focuses on federal wildlife laws and policies affecting construction and operation of electric power infrastructure across the United States. Counsel's role includes policy-level and project-specific issues impacting member companies, including advocacy at the Department of Interior and U.S. Fish and Wildlife Service. This role has included preparing amicus briefs on behalf of EWAC for the Weyerhaeuser Company v. United States Fish and Wildlife Service Supreme Court case involving critical habitat designations, and the settlement of an EWAC-led lawsuit regarding the BGEPA permitting regulations.

RENEWABLE ENERGY

• Helped secure the first ITP for wind energy issued under both ESA and BGEPA for ESA-listed species and both eagle species.
• Has secured several ITPs for wind energy for impacts to ESA-listed bats in the Midwest and working on over a dozen pending applications throughout the Midwest and Southeast.
• Helped secure the first wind energy Endangered Species Act incidental take permit (ITP) for the California condor.
• Has secured BGEPA permits for two wind energy projects and assisting with BGEPA permit applications in every region of the U.S. Fish and Wildlife Service.
• Assisting solar energy developers with obtaining ITPs for ESA-listed species in the Southeast.
• Assisting wind, solar, and storage developers with developing compliance strategies under CWA, ESA, and HPA. Assisting wind energy developer with securing concurrent approvals on federal lands and eagle permitting.
• Assisting wind project developers with ESA, NEPA, and NHPA compliance strategies arising from federal power administration interconnections.
• Prepares permitting opinions and transactional support for renewable energy developers on federal, state and local natural resources and environmental issues.
• Provides ongoing counsel to operating wind energy companies in several states with ESA and compliance approaches, including project-specific ITPs under both ESA and BGEPA.
• Regularly evaluates potential wind energy and solar energy project acquisitions with regard to federal wildlife issues and state and local environmental issues on behalf of national utilities and private investors.
• Assisted in amending an ITP/HCP for a wind energy facility in Hawaii.
• Provides counsel to numerous renewable energy developers on issues related to ESA, BGEPA, MBTA, CWA, NHPA and NEPA compliance and permitting approaches.
• Provides counsel to numerous wind, solar and storage developers on issues related to Texas state and local compliance and permitting approaches.
• Assists renewable energy developer in following requisite PUCT and ERCOT processes and provides permitting opinion in support of same.
• A member of the legal team that advised the American Wind Energy Association on two multi-state, multi-species HCPs: the Great Plains Wind Energy HCP and the Midwest Wind Energy Multi-Species HCP.

LINEAR INFRASTRUCTURE

• Assisted transmission line company with successfully navigating CWA, NHPA consultation and ESA section 7 consultation for construction of a transmission line in the Midwest.
• Counsel to a public improvement district responsible for a San Antonio area roadway extension on various ESA permitting and compliance issues involving karst invertebrates.
• Advises municipal utilities on ESA compliance issues related to system-wide infrastructure and development of system-wide HCPs.
• Assists transmission companies and public utilities with permitting and compliance strategies related to ESA, BGEPA and CWA compliance issues in several states.
• Has assisted private pipelines companies on ESA, MBTA, CWA and NEPA compliance strategies on billion dollar pipelines across multiple states.

MITIGATION AND CONSERVATION BANKING

• Developed the first multi-state, programmatic conservation bank in the country.
• Assisted in completed and ongoing species banking efforts throughout Texas and other states including for the American burying beetle, black-capped vireo and golden-cheeked warbler.
• Assisted in developing preliminary strategies for the development of a golden eagle conservation bank.
• Assists BGEPA permittees with developing mitigation agreements.
• Assists permittees with evaluating and participating in conservation banking and other mitigation options.

REAL ESTATE DEVELOPMENT

• Handled complex CWA and ESA permitting and ongoing compliance issues for a marina community on the Texas Gulf coast.
• Advised developers of master-planned developments in central Texas on ESA compliance approaches.
• Assisted developer in supporting its ESA and CWA compliance strategy for a controversial commercial project.

TEXAS NATURAL RESOURCE AND ENVIRONMENTAL LAWS

• Advises clients in several industries on issues related to Texas natural resource and environmental laws, including mussel relocation, marl, sand, gravel, shell and mudshell permitting, and voluntary clean-up program participation.
• Provides state and local environmental support for real estate transactions, including advice on Phase I ESAs, stormwater permitting and spill response.

SPECIES EXPERIENCE

• Brooke has specific experience with almost all of the listed and rare species encountered in Texas, the Southwest, Midwest, Southeast, Mountain Prairie, Pacific Northwest and the Central Plains. These include the whooping crane, Indiana bat, gray bat, northern long-eared bat, tricolored bat, little brown bat, Ozark big-eared bat, California condor, marbled murrelet, eastern Indigo snake, gopher tortoise, golden-cheeked warbler, salamander and other aquifer species, the ocelot, piping plovers, lesser prairie chicken, eagles, jaguar, freshwater mussels, various reptiles and various plants and cacti.

Publications

Blog Posts

Speaking Engagements

News

Podcasts

Multimedia

Community & Professional

American Bar Association – Environment, Energy and Resources Section

Austin Bar Association, Member

Guest Lecturer, University of Texas Law School

Guest Lecturer, Warren Wilson College

Honors & Recognitions

Included in The Best Lawyers in America^© for Energy Law and Environmental Law, 2025

Individual recognition for Environmental Law in Texas by Chambers USA, 2019-2024

Listed, The Legal 500 United States, Industry Focus - Energy - Renewable/Alternative Power, 2020-2024

Listed, The Legal 500 United States, Industry Focus - Environment - Litigation, 2020, 2024, 2024

Named a Texas Trailblazer by the Texas Lawyer, 2020

Selected as an Environmental Rising Star by Law360, 2019

Received the Texas Lawyer's Professional Excellence Award: On the Rise, 2019