Dynamic Forest Federalism

Table of ContentsI. Introduction 1645II. Deconstructing U.S. Federalism: Political and Legal Dynamism Versus Dualism 1651A. Legal Dynamism Versus Dualism 1652B. Political Dynamism Versus Dualism 1657C. Shift Toward Dynamic Federalism 1659D. The Reality: Bimodal Federalism 1663III. U.S. Forest Policy Situated on the Dynamic-Duel Federalism Spectrum 1668A. The Importance of U.S. Forest Resources and the Forest Regulatory Framework 16721. Importance of U.S. Forests Locally, Nationally, and Globally 16722. U.S. Forest Policy Regulatory Framework and Policy Options 1674B. The Threats to U.S. Forests: A Southeastern Case Study 1680C. U.S. Forest Federalism: Legally and Politically Dual 16891. The Constitution and Jurisprudence on Subnational Forests 16902. Current Federal Involvement in Subnational Forest Policy: A Collection of Insufficient Incentives 1692D. Implications of Legal and Political Dualism for U.S. Forests and the Normative Case for Dynamism 16941. The Fallacy of a Forest Federalism "Matching Principle" 16942. The Legal Perspective, Political Reality Conundrum 16963. An Increasingly Urgent Challenge: Changes in the Ownership and Use of Forest Resources Outpace a Needed Shift to Dynamic Federalism 1698IV. Federalism and U.S. Forest Policy in Context: How History Informs the Path Forward 1703V. Conclusion: Toward a Dynamic Federalism Formula to Protect Dynamic Resources 1711I IntroductionOur world is composed of dynamic natural resources.1 In the natural environment forests burn, rivers flood, sea levels rise, and climate changes. Yet human influence adds an extra, and potentially more potent, layer of dynamism on top of these already dynamic natural processes. Just consider that by 1920 humans had reduced U.S. forest cover by nearly half,2 and over the last century development has claimed over half of all wetlands in North America.* * 3 Humans have extracted, consumed, and released millions of years' worth of stored carbon during the last century and a half alone,4 thereby altering natural background processes of climate change, sea level rise, and associated disaster events such as hurricane-induced flooding. If we have observed one thing from human interaction with dynamic resources, it is that our ability to adaptively and effectively manage those resources is often quite undynamic in its own right. Society often fails to harness effective tools of environmental law and policy until scarcity, disaster, or other resource management challenges arise. One only has to look to polluted rivers catching on fire in the 1970's, the ever-so-slowly recovering ozone layer, the widespread destruction of flood disaster-mitigating coastal wetlands, or deforestation's high contribution to annual global carbon emissions to find examples of human failure to proactively prevent resource crises.5 Instead of continuing to allow dynamic shifts in resource use and preservation to outpace legal and policy solutions, a key challenge faced by modern society is to find congruity between the shifts and the solutions.One of the ways society has sought to achieve dynamic responses to resource management challenges is by utilizing a federal system of government, whereby a nested set of local, state, and federal governments can each flexibly maintain inputs into resource management.6 Yet we often see inaction at one or more of these levels, effectively facilitating or exacerbating resource overexploitation. This inaction may result for one of two primary reasons-either a level of government politically refuses to design effective resource management inputs, or a level of government is legally constrained from doing so due to the allocation of governance authority as established by national or state constitutional or legislative authorities. …