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Abstract

State and local governments have long maintained regulatory authority to manage natural resources, and most subnational governments have politically exercised that authority to some degree. Policy makers, however, have increasingly recognized that the dynamic attributes of natural resources make them difficult to manage on any one scale of government. As a result, the nation has shifted toward multilevel governance known as “dynamic federalism” for many if not most regulatory subject areas, especially in the context of the natural environment. The nation has done so both legally and politically—the constitutional validity of expanded federal regulatory authority over resources has consistently been upheld by courts in recent decades, and federal, state, and local governments have been increasingly politically engaged in addressing environmental harms. Yet, remnants of “dual federalism”—which conceives of constitutionally protected, separate spheres of governance as between the federal and state governments—impact the governance of certain resources, like subnational forests. The preservation of the nation’s forests, in turn, is critical to environmental well-being in the coming decades, especially when considering the crucial role of forests in combating climate change. The entrenchment of legal and political dualism in the forest context stymies federal in puts into subnational forest management at a time when state and local governments are unlikely, given current trends, to curb the destruction of a significant acreage of the nation’s forests over the next fifty years. This Article, first, uses forest resources as a case study to shed light on the broader constitutional debate regarding dual versus dynamic regulatory approaches in the United States. Second, the Article is the first to thoroughly detail the under-analyzed status of subnational forest management regulation on the dual-dynamic federalism spectrum and the first to make a normative argument that U.S. forest policy should become more dynamic to avoid the unmitigated destruction of resources of increasing value to the nation, and indeed the globe, in a time of climate change.

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