Climate Change, Forests and Federalism: Seeing the Treaty for the Trees

67 Pages Posted: 31 Mar 2010 Last revised: 12 Apr 2018

See all articles by Blake Hudson

Blake Hudson

University of Florida College of Law

Date Written: March 25, 2010


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.

Keywords: Forests, Federalism, Climate Change, Treaty Power, Market

Suggested Citation

Hudson, Blake, Climate Change, Forests and Federalism: Seeing the Treaty for the Trees (March 25, 2010). University of Colorado Law Review, Vol. 82, No. 2, 2011, Available at SSRN:

Blake Hudson (Contact Author)

University of Florida College of Law ( email )

P.O. Box 117625
Gainesville, FL 32611-7625
United States


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