Fail-Safe Federalism and Climate Change: The Case of U.S. and Canadian Forest Policy

Recent research demonstrates the difficulties that federal systems of government may present for international treaty formation, a prime example being legally binding treaties aimed at harnessing global forests to regulate climate change. Some federal constitutions, such as the U.S. and Canadian constitutions, grant subnational governments virtually exclusive direct forest management regulatory authority for non-federally owned forests. With subnational governments controlling sixty-five percent offorests in the United States and eighty-four percent in Canada, the U.S. and Canadian federal governments may be constrained during international negotiations and unable to legally bind subnational governments to any agreement prescribing methods of utilizing these forests to combat climate change. These constraints are especially important since these two countries control fifteen percent of the world's forests. Decentralized forest policy in the U..S. and Canada certainly provides valuable benefits. Yet constitutional decentralization in federal systems should be more effectively balanced with global forest governance if that mechanism for addressing climate change is to be preserved in its most flexible form. Though a binding agreement has yet to materialize, and other increasingly touted mechanisms may be utilized to tackle climate change, it is imperative that world governments maintain every legal and policy tool at their disposal to address the problem. A recent comparative constitutional analysis of five federal systems controlling fiftyfour percent of global forests determined that the United States and Canada lack two of the three key elements offederal constitutional structure that best facilitate a federal nation's ability to enter into and successfully implement an international climate agreement including forests while also preserving the recognized benefits of decentralized forest policy. This Article addresses how these constitutional deficiencies might be remedied to achieve more effective climate and forest governance. In other words, the Article explores mechanisms for establishing "Fail-safe Federalism " for forest management in the United States and Canada, by first highlighting the domestic nuances of both constitutional structure and forest policy in the two countries and next assessing whether top-down, bilateral, horizontal, or transnational approaches are the most effective mechanisms for forging Fail-safe Federalism within each.

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