ABSTRACT

In 2010, at the United Nations Global Conference on Environmental Governance and Democracy,4 numerous scholars expressed concern over political disconnects among countries engaged in international negotiations on climate change, perhaps the most complex and challenging environmental issue of our time. Much of the conference discussion focused on strengthening governance at various levels to forge political will for action on climate change, either through the creation of new legislation facilitating climate change mitigation and adaptation or through improved enforcement of existing climate change laws.5 Political will to create and enforce effective regulatory mechanisms on international and domestic scales is undoubtedly critical to effective global environmental governance, especially in an area as contentious as climate change. As highlighted in Chapter 6, however, another question necessarily precedes an inquiry into political will-that is, does an adequate legal institutional framework exist within participant countries to ensure that in the presence of political will, if and when it occurs, international treaties can be successfully negotiated and implemented domestically? Without adequate legal institutions to effectively translate global politics into domestic policy, the most robust of international treaties will not be effectively implemented on domestic scales. Indeed, as demonstrated in Chapter 6, domestic governance limitations in

the form of constitutional federalism may complicate the implementation of a non-self-executing, legally binding climate change treaty that addresses global forest management via certain regulatory mechanisms, or perhaps even complicate treaty formation altogether. In this way, Professor Swaine’s

assertion6 that between potentially insurmountable domestic constitutional law and international treaty obligations may decline to enter into a treaty may ring true in the forest management context. As Professor Wheare acknowledged 60 years ago,7 federalism and participation in international governance regimes may very well “go ill together” under some circumstances. Chapter 6 bears out these potential complications with regard to forest

management in the U.S., where regulatory authority over forest management is currently constitutionally divided between the federal and state governments, with state governments responsible for regulating the nearly 65 percent of “local” U.S. forests that are in either state ownership (approximately 5 percent) or private ownership (approximately 60 percent).8 Yet as discussed in Chapter 6, forests are of both local and global importance, and

[t]he challenge is to find a governance framework that can balance the various local, national and global interests related to forests. Everyone agrees that local groups should be allowed to come up with solutions that reflect their own needs and circumstances; but regional, national and global concerns must also be addressed.9