Climate Change, Forests and Federalism: Seeing the Treaty for the Trees
LSU Law Center; LSU School of the Coast and Environment
March 25, 2010
University of Colorado Law Review, Vol. 82, No. 2, 2011
Stetson University College of Law Research Paper No. 2010-02
Despite numerous attempts over the past two decades—including, most recently, the Copenhagen climate discussions in late 2009—international forest and climate negotiations have failed to produce a legally binding treaty addressing global forest management activities. This failure is due in large part to a lack of U.S. leadership. Though U.S. participation in ongoing forest and climate negotiations is essential, scholars have not fully explored the potential limiting effects of federalism on the United States’ treaty power in the area of forest management. Such an exploration is necessary given the debate among constitutional law scholars regarding the scope of the treaty power, the United States’ history of invoking federalism to inhibit treaty formation and participation, and the constitutional reservation of primary land use regulatory authority for state and local governments. This Article argues that due to great uncertainty surrounding the question of whether federalism limits the federal government’s ability to enter into and implement a legally binding treaty directly regulating forest management activities via prescriptive mechanisms, any binding treaty aimed at forests should include voluntary, market-based mechanisms—like REDD, forest certification, and ecosystem service transaction programs—to facilitate U.S. participation and avoid challenges to treaty implementation in the United States.
Number of Pages in PDF File: 67
Keywords: Forests, Federalism, Climate Change, Treaty Power, MarketAccepted Paper Series
Date posted: March 31, 2010 ; Last revised: September 9, 2011
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