ABSTRACT
Climate change is perhaps the most important environmental issue of our time, and is clearly the largest quintessential commons problem faced globally. Yet it is also one of the most complex commons challenges ever faced by humans. While it is difficult to craft a regulatory solution or a cooperative response among nations for most global governance issues, it is especially challenging in the case of climate change. Scientific uncertainty regarding climate change’s potential impacts, the difficulties in measuring and predicting changing climatic conditions, the global scale of the problem, the innumerable sources of greenhouse gases (GHGs), the role of those sources in forming the very carbon-constructed foundation upon which society operates, and the political and jurisdictional complexities arising out of these factors make climate change an exceptionally difficult environmental and global governance challenge. The global nature of the problem requires that each nation be able to successfully utilize mechanisms of domestic governance to forge a collaborative international response, and that nations act “irrationally” under the Hardin paradigm in order to overcome the collective action problems that have contributed to the accelerated rise of carbon concentrations in the atmosphere. Chapter 7 described the United States and Canada as two nations in particular that maintain constitutional orders that pose a challenge to international negotiations because regulatory authority over treaty subject matter may be constitutionally decentralized (or non-centralized) and divided in an exclusive manner between the national and subnational governments. As a result, U.S. states and Canadian provinces may legally constrain national governments during international negotiations by resisting domestic treaty implementation as outside the scope of the national government’s constitutional authority. The complications presented by federal systems like the U.S. and Canada for international negotiations have critical implications for global climate governance-at least to the extent that countries wish to preserve a legally binding treaty as one mechanism for addressing climate change. The role of the United States and Canada in climate change and global
forest management negotiations provides a compelling case study of the potential impact of federal systems on global governance via international treaty, as “realization of the significance of climate change impacts of
greenhouse gas and forest degradation has brought renewed impetus to efforts to conserve and better manage forests globally.”2 Recall from Chapter 5 that forest destruction is not only a substantial source of atmospheric carbon, but that one-third of global carbon emissions are absorbed by forests each year, making forests the most significant terrestrial carbon sink on the planet.3 Thus, protecting important global forest resources-70-80 percent of which are found in federal systems-can both halt significant carbon releases and can absorb additional carbon from other sources. The United States and Canada alone account for over 13 percent of the
world’s land base,4 over 15 percent of the world’s forests,5 and maintain two of the top ten world economies as measured by annual gross domestic product6-carbon-based economies to be certain. With these two nations controlling such a significant amount of the world’s natural and financial capital, full and unconstrained participation by the United States and Canada in international climate negotiations is of crucial importance if that route of response is ultimately chosen. As noted in Chapter 5, despite arguments over the merits of dual feder-
alism in the U.S. or Canada, legal perception is political reality, as governments politically refuse to act both domestically and internationally at least in part based upon perceived constitutional constraints. The consequences of this constitutional state of affairs for U.S. and Canadian forests are substantial, with grave threats to domestic forest resources in both countries. Under current understandings of constitutional law in both countries, a prescriptive regulatory response at national or international levels may be an unavailable mechanism for avoiding these dramatic losses of forest cover and the carbon sequestration and other ecosystem service benefits forests provide. The U.S. stands to lose 23 million acres, or 13 percent, of forests in the southeast alone over the next 50 years, as described in Chapter 5. Similarly, the lack of national or international input into Canadian forest practices also has implications for preserving the full slate of climate change solutions. While Canadian boreal forests store a great deal of carbon-an estimated 67 billion tons (equal to 303 years of the country’s 2002 carbon emissions)—deforestation of nearly 230,000 acres of forest a year due to cropland conversion and urbanization is a significant source of emissions.7 At this rate, over 11 million acres of Canadian forest will be lost over the next 50 years. This is in addition to logging activities that remove an average of 122 megatons of carbon dioxide equivalent forest carbon a year, an amount that if released into the atmosphere would equal 16 percent of Canada’s total yearly GHG emissions.8 Without greater coordination of forest policies, either among the provinces or provided by some higher governmental authority, destruction of forests in the name of economic development may proceed apace as provinces jockey for economic growth and development. In the final assessment, if utilization of full treaty-making authority is to be
preserved in the context of climate change, federal systems like the United
States and Canada resource management problems posed by federalism. In other words, mechanisms for forging “Fail-safe Federalism” will need to be established in the event that U.S. states or Canadian provinces do not unilaterally act to protect their respective forests in ways consistent with the needs of a robust global climate change response. Such mechanisms would allow these countries’ federal governments to have the constitutional authority to act as a fail-safe by participating in the establishment of national forest objectives based upon minimum forest protection standards-standards that may need to be coordinated on a global scale to effectively address climate change. In order to provide context for Chapter 9’s analysis of the various mechanisms that may be utilized to facilitate Fail-safe Federalism in the context of global forest governance and climate change in the U.S. and Canada, this chapter digs deeper into the drivers that shape U.S. and Canadian forest policy and the implications of these drivers for the suggested mechanisms of Fail-safe Federalism discussed in Chapter 9.
