After 18 years of a law practice devoted to counseling landowners, home builders and commercial interests affected by the long arm and severe penalties of the Endangered Species Act, I am used to incredulous looks and outraged oaths from clients coming to grips with the Act's incredible burdens on impacted private citizens.

"Are you telling me I can't build my Burger King because a Delhi Sands flower-loving fly that has never been seen and is above ground only a few days a year might be near-by?"

"I can't build a connector road because the noise from construction might damage the hearing of the Stephens' kangaroo rat thus impairing its reproduction?"

"All construction in San Diego involving impacts to road ruts which might contain Vernal Pool Fairy Shrimp is enjoined? All construction?"

Yes, yes, and yes. The list of situations in which the ESA has stopped otherwise legal and fully permitted projects from proceeding is extraordinarily long and getting longer. With Wednesday's decision to list the polar bear as "threatened" the burden on the American economy brought about by the ESA grew exponentially.

I have written here and here on the polar bear controversy. Those columns delineated how the advocates of the polar bear listing planned on using the bear to impose vast new controls on the emissions of greenhouse gases across the United States. When Secretary of the Interior Dirk Kempthorne announced the listing, he also made a bold statement that the new status of the polar bear would not lead to such consequences.

To which the environmental activists replied immediately: "Says who?" The law is the law, they correctly noted, and it cannot be cabined by "guidance" issued by the executive branch. Here's one example of the reality of the listing's aftermath from the pages of USA Today:

Kassie Siegel, a lawyer with the Center for Biological Diversity, said the group does not accept Kempthorne's view.

The act requires federal agencies to take steps to reduce or eliminate those impacts on threatened species, she said. "There is no exemption for greenhouse gas emissions."

If the government fails to address global warming, "we can and will go to court to enforce the law," she said.

The industries most likely to be pummeled by the polar bear are energy production, aggregates extraction, transportation, and commercial building because each can be shown quite easily to result in increased emissions of greenhouse gases and each routinely requires federal permits to go about some aspect of their business. (The coal industry may be target number one, followed by oil drilling in the lower 48.)

The Act operates simply. Once an animal is listed, it becomes a felony to harm or harass it without the permission of the feds.

Harm or harassment has been defined to include destruction or impairment of the habitat the species actually occupies. (Some more radical views argue that harm to habitat that could be occupied in the future should also be a felony under the Act, but that view has not yet been upheld by a court of appeals.)

Because the polar bear has been listed as threatened due to alleged deterioration of its ice habitat, and because the alleged loss of the ice habitat has occurred because of global warming caused at least in part by the emission of greenhouse gases, environmental activists will argue that all emissions of greenhouse gases that flow as a consequence of the grant of a federal permit of any sort are now subject to review under the ESA and, crucially, that those permits cannot be issued unless and until the United States Fish & Wildlife Service reviews and approves of the requested permit under Section 7 of the ESA, a process which takes at a minimum months and which can cost millions of dollars even if it is successful.

Because of the generous "citizen standing" provisions of the ESA, expect dozens of "60-day" letters to begin to arrive in the offices of Secretary Kempthorne very soon, announcing that unless the Department and the Service act to invoke Section 7 vis-a-vis this or that federal permit, a lawsuit will be filed to force compliance. Expect most of those suits to be filed in the Ninth Circuit, where the appeals court has been very expansive in applying the ESA. Continued...