The Lacey Act was first enacted in 1900 as a narrow measure for domestic bird preservation and agriculture protection. It was significantly amended in 1981 and 1988 to prohibit trafficking in fish and wildlife "taken, possessed, transported, or sold" in violation of state and foreign laws. For the past three decades, the amended statute has provided the federal government with a powerful tool for regulating imports of fish and wildlife. In 2008 Congress expanded its reach still further, responding to widespread concern about the effects of illegal logging on local governance, the environment, and American business by extending the Act's protections to imported plants.

The Lacey Act's penalty provision imposes both civil and criminal liability for wildlife trafficking. At its most stringent, the Act imposes felony liability on those who "knowingly" import fish and wildlife harvested in violation of foreign laws. Importers and subsequent purchasers of imports who fail to exercise "due care" in determining whether their products are legal may be subject to misdemeanor liability or civil penalties. The due care standard, which originated in the 1981 amendments, is now almost three decades old, yet key differences exist between companies in the timber market and the business enterprises whose operations were traditionally regulated under the Lacey Act's fish and wildlife provisions. These differences limit the applicability of the few existing precedents that have interpreted and applied this standard.

The new President in 2009 will follow an administration which has not been seen as proactive in developing environmental policy to address issues of climate change, alternative energy, and sustainability. Environmental organizations, legal and policy academics, and industry officials are beginning to debate the necessary focus of that next administration as it endeavors to develop sustainable environmental policies. As the nation’s major environmental laws were enacted three decades ago, when the country faced very different environmental problems, this symposium proposes a fresh legal and policy approach to climate change, alternative energy, and sustainability for the next presidential administration to follow.

The Bush Administration squandered eight years denying the reality of climate change and delaying action on it. Nevertheless, the president who comes into office in January will face two happy realities. First, whatever the Bush Administration has done (through obstruction or inaction) on climate change can easily be undone due to its legal and scientific flimsiness. And second, statutes now on the books provide plenty of legal authority for swift action on the most important environmental issue of our time.

The U.S. system for regulating appliances—which account for a huge percentage of the nation’s carbon emissions—is a mess. Since the federal government began regulating appliance efficiency in the 1970s, the process has been characterized by frequent delays and foot-dragging, followed by lawsuits and legislative overhauls. Amidst the turmoil, a number of states have attempted to assert leadership in setting appliance standards but have often faced federal roadblocks in doing so.

Climate change is an environmental problem of global dimensions, but we lack a system of international law that can impose a coordinated response. Bilateral agreements between key nations may present a solution. A partnership between the United States and China to develop technology for carbon capture and sequestration offers hope for mitigating the climate impacts of China’s rapidly growing number of coal-burning electric power plants.