WHERE WE ARE AND WHITHER WE ARE TENDING:

INTERROGATING THE RETRENCHMENT NARRATIVE IN U.S. ENVIRONMENTAL POLICY

David Sousa, University of Puget Sound

Christopher McGrory Klyza, Middlebury College

To be presented at the 2016 Annual Meeting of the Midwest Political Science

Association, April 2016

In previous work we argued that much of modern environmental policymaking has been
characterized by green drift, which we described as a slow and even halting general
movement in policy directions favored by environmentalists.1 The logic of the
argument is that the legislative gridlock that has held on most environmental issues
since the late 1980s has locked into place the raft of pro-environment, golden era
laws passed in the 1960s and 1970s. On many issues, despite growing opposition from
business interests and repeated, intensifying conservative assaults over the past 35
years, environmentalists have held high ground defined by the most recent layer of
statutes defining the contours of the modern green state. We did not fully develop the
green drift argument, leaving it as an important implication of our work and a
counterpoint to the then-prominent death of environmentalism thesis advanced by
Michael Shellenberger and Ted Nordhaus.2

Judith Layzers Open for Business offered a critical perspective on the green drift
hypothesis, developing the strongest version of what we call a retrenchment narrative
in environmental policy.3 This narrative is quite common among environmental groups
and in the general media. For instance, in a report after President George W. Bushs first
term, the Natural Resources Defense Council stated that Over the course of the first
term, this administration led the most thorough and destructive campaign against
America's environmental safeguards in the past 40 years. And as Bush prepared to
leave office, Sierra Club spokesperson Josh Dorner commented that Bush has undone

1
Christopher McGrory Klyza and David J. Sousa, [2008] 2013, American Environmental Policy: Beyond
Gridlock, updated and expanded edition, Cambridge, MA: MIT Press, p. 271; Christopher McGrory Klyza
and David J. Sousa, 2010, Beyond Gridlock: Green Drift in American Environmental Policymaking,
Political Science Quarterly 125 (3): 443-463.
2
Michael Shellenberger and Ted Nordhaus, 2004, The Death of Environmentalism: Global Warming
Politics in a Post-Environmental World,
http://www.thebreakthrough.org/images/Death_of_Environmentalism.pdf, retrieved June 17, 2015.
3
Judith Layzer, 2012, Open for Business: Conservatives Opposition to Environmental Regulation,
Cambridge, MA: MIT Press. Other examples, taking different forms, would be Robert B. Keiter,
2007,Breaking Faith with Nature: The Bush Administration and Public Land Policy, Journal of Land,
Resources, and Environmental Law 27: 195-253; Daniel Press, 2015, American Environmental Policy: The
Failures of Compliance, Abatement and Mitigation, Northampton, MA: Edward Elgar Publishing;
Shellenberger and Nordhaus, Ibid.

1
decades if not a century of progress on the environment.4 Layzer sees a general right
turn and rollback in environmental policy since the golden era, a central tendency
defined by the rights assault on regulation generally and the green state in particular.
She suggested that we (and others) made the same error that Jacob Hacker illuminated
in his widely-cited work on welfare state retrenchment. As Hacker has it, early welfare
state retrenchment studies looked for major statutory changes and big budget cuts,
found none, and concluded that, despite rising political pressures, retrenchment had
not occurred.5 Hacker argued that this conclusion was wrong, because the real story of
retrenchment was not in statutory changes or even budget numbers but in subtler,
everyday forms of retrenchment below the level of legislated changes that had led to
rollbacks in the welfare state, with substantial increases in citizens exposures to
economic risks.

Following Hackers argument, Layzer contended that focusing on the remarkable staying
power of the golden era environmental laws overlooks the myriad ways that
conservatives have remade environmental policy and policy possibility in the era of
legislative gridlock that has held, more or less, since 1980. Despite their repeated
failures to break the basic statutory commitments of the 1960s and 1970s,
conservatives have

adopted a more subtle strategy aimed at ensuring that laws are implemented
and enforced in ways that reduce the stringency of federal environmental
protection. Couching their challenges in the language of reason and moderation,
they have used procedural requirementssuch as cost-benefit analysis, risk
assessment, risk balancing, and regulatory reviewto discourage new
regulations. They have also modified the wording and interpretation of rules in
ways that have limited their stringency.6

Layzer contends that policy made on what we called alternative pathways around
gridlock has generally favored conservative interests, in a halting but steady movement
to the right. In developing her case for retrenchment-beyond-gridlock, and her story
that this is the central tendency in modern environmental policymaking, she adopted

4
Natural Resources Defense Council, 2005, Rewriting the Rules: The Bush Administrations First Term
Environmental Record, http://www.nrdc.org/legislation/rollbacks/rollbacksinx.asp; Dorner quoted in
Suzanne Goldenberg, 2009, The Worst of Times: Bushs Environmental Legacy Examined, The Guardian,
January 16.
5
Jacob Hacker, 2004, Privatizing Risk without Privatizing the Welfare State: The Hidden Politics of Social
Policy Retrenchment in the United States, American Political Science Review 98(2): 243-260, quote from
p. 246; Jacob S. Hacker, Paul Pierson, and Kathleen Thelen, 2015, Drift and Conversion: Hidden Faces of
Institutional Change, in Advances in Comparative-Historical Analysis, edited by James Mahioney and
Kathleen Thelen, New York: Cambridge University Press, pp. 180-208; Layzer, Open For Business, pp. 3-5,
pp. 333-338.
6
Layzer, Open For Business, p. 4.

2
Hackers concepts of drift, layering, and conversion as core retrenchment
strategies.7

We think that the retrenchment narrative is incomplete, and this paper will interrogate
it in two ways, first with a brief discussion of the substance of modern environmental
policymaking and then with some analysis of the ways that ideas about environmental
policy retrenchment connect to the broader retrenchment literature in policy studies
that has been organized around the work of Hacker and his collaborators.

Our substantive story is straightforward. The rights failure to undo any of the major
golden era statutes matters a great deal. Informed by administrative theories that came
to prominence in the 1960s, the golden era laws typically include clear agency-forcing
mandates and provisions for citizen lawsuits, sharply limiting the discretion available to
those seeking to undo their protections.8 These provisions narrow the possibilities of
everyday forms of retrenchment. Environmentalists have seen some defeats, and the
political barriers to updating the golden era environmental laws have created real
problems. But greens have also made many profoundly important gains on the
pathways around legislative gridlock. Like their opponents, environmentalists have
pursued subtle strategies aimed at advancing their goals, and they have done so from
strategically powerful positions defined by the requirements of the golden era laws.

At the theoretical level, Layzers creative application of the Hacker

drift/layering/conversion concepts opens many great questions, but she failed to
address complexities that arise when trying to apply the Hacker framework to the study
of environmental policy. We will show that untangling drift, conversion, and
layering proves to be difficult in the environmental policy arena. More significantly,
these subtle strategies have often advanced rather than retrenched environmental
protections. This adds an important dimension of complexity to the literature on drift,
conversion, and layering as we try to carry it to the environmental policy arena.

Normatively, Hacker and his colleagues have been deeply concerned with the
undemocratic character of the politics of retrenchment in social policy. They write:

In a world marked by stark information and power asymmetries and vast

differences in resources and organizational capacities, who actually governs?
Political contestation often pits the organized and information-richthe political
actors most able to block the updating of policies, the actors most capable of
changing institutions from withinagainst the disorganized and information-
poor. By opening our eyes to drift and conversion, we can better understand not

7
Layzer, Open for Business, p. 29.
8
Marc Allen Eisner, 2000, Regulatory Politics in Transition, 2d ed., Baltimore: Johns Hopkins University
Press, chapters 6-7.

3
 just the sources of institutional change but also the structure of power in
advanced societies.9

This is all undoubtedly true, but in environmental policymaking the realities of power
are more complex: environmental interests are well-organized and informed. They, too,
have shown themselves capable of transforming institutions from within, not against
the disorganized and information-poor, but against interests that cannot match their
advantages: the clear language of protective statutes and the strength of protective
frames in policy discourse. Environmentalists, too, have pressed their advantages in
venuesthe appropriation process, executive politics, the courtswhere public
attention is often quite limited and accountability proves elusive. In the era of legislative
gridlock, policy initiative on all sides has been pushed onto darkly lit policymaking
pathways.10 In the era of legislative gridlock, both environmental policy retrenchment
and advancement often take place in what is, for the average inattentive citizen, the
dark.

We organize the second part of the paper around the drift, conversion, and layering
concepts, working to apply them to patterns in modern environmental policymaking.
In developing these substantive and theoretical points, we want to unpack the green
drift concept and highlight its importance. We acknowledge that green drift is not the
only tendency in modern environmental policymaking, but think students of
environmental policy need a more nuanced analysis of where we are, and whither we
are tending than the claim about 30 years of gutting made by Shellenberger and
Nordhaus or the retrenchment narrative of Open for Business. That analysis has to
account for what Karen Orren and Stephen Skowronek would describe as the
intercurrent character of modern environmental policymaking, the co-existence and
juxtaposition of conflicting tendencies and the crashing and grinding of multiple
political orders in this field.11

Of course, at some point an increasingly radicalized Republican party, its hold on the
Congress firm, will, recapture the White House. At that point, the GOP would have an
opportunity to make deep and lasting retrenchments in environmental policy. But it
would be thisthe electoral triumph of extremists seizing power despite rather than
because of their positions on most environmental issues, and not the triumph of
conservative ideas about the perils of the green statethat will drive any historical
discontinuity that eventually occurs in this field.

9
Hacker, Pierson, and Thelen, Drift and Conversion, p. 204.
10
Klyza and Sousa, Beyond Gridlock, p. 13.
11
Karen Orren and Stephen Skowronek, 2004, The Search for American Political Development, New York:
Cambridge University Press, p. 11.

4
I. WHAT WOULD PROGRAMMATIC RETRENCHMENT LOOK LIKE IN ENVIRONMENTAL
POLICY?

Hacker credited Paul Piersons Dismantling the Welfare State? for its careful
specification of the dependent variable of interest in retrenchment studies. He defined
retrenchment as policy changes that either cut social expenditure, restructure welfare
state programs to conform more closely to the residual welfare state model, or alter the
political environment in ways that enhance the probability of such outcomes in the
future.12 Pierson distinguished programmatic retrenchment, immediate changes in
programs, from systemic retrenchment, long-term changes in the political
environment that set the table for future rollbacks. As noted above, Pierson concluded
that by these lights, at the time of his writing, the fundamental structure of social
policy (in Great Britain and the United States) remain(ed) comparatively stable.13

What would programmatic retrenchment look like in environmental policy? First, it

would, involve the repeal of or significant amendments to existing statutes. But as we
documented in Beyond Gridlock, despite fiery conservative rhetoric and the promises of
the 1980s, 1990s, and the Tea Party waves, this has not occurred. The basic statutory
framework established in the 1960s and 1970s remains in place.14

Retrenchment might take the form of sustained budget cuts at agencies charged with
environmental protection. This has not occurred, either. As Peter Balint and James
Conan show, Environmental Protection Agency (EPA) budgets have fluctuated over the
past 45 years, but they have done so within a general, modest, upward trend. The
sharpest short-term reductions were seen in the late Carter years, and then,
unsurprisingly, in brief periods during the Reagan, G.H.W. Bush, and G.W. Bush
presidencies. Between 1970 and 2010 EPA budgets generally moved in the same
direction as overall federal nondefense spending. The average magnitude of changes in
EPA budgets over this period was similar to average changes in nondefense spending as
a whole (so there is no general evidence of budgetary retrenchments unique to EPA),
but there was more year-to-year volatility in EPA budgets than in the nondefense
spending as a whole. This stop-go pattern flows from deep conflicts over
environmental protection, and may have had negative consequences for the agency.
But there is no evidence in the aggregate budgetary data of a sustained retrenchment at
EPA.15 Recent contenders for the Republican presidential nomination may have mused

12
Pierson, quoted in Hacker, Privatizing Risk, p. 244.
13
Ibid.
14
We might look to the adoption of new statutes opposed by environmentalists (major provisions of the
Energy Policy Act of 2005 come to mind), but this would probably qualify as layering in Hackers terms.
The barriers to internal policy conversion are high, due to statutory provisions allowing for citizen
petitions and citizen lawsuits, but events and political conditions in the early 2000s did open the way for a
major statute that reshaped important aspects of energy policy.
15
Peter Balint and James Conant, 2013, The Environmental Protection Agencys Budget from 1970 to
2010: A Life-Cycle Analysis, Public Budgeting and Finance (Winter): 41. The agencys workforce at the end

5
about shuttering the job-killing organization of America, but real-world Republican
presidents have generally presided over at least some growth in EPA budgets over the
course of their whole terms of office.16

By the simplest retrenchment measures, then, no serious rollbacks or programmatic

retrenchments have occurred. So where should we look for evidence of retrenchment?
Layzer, following Hacker, focused on the effectiveness of everyday forms of
retrenchment, backdoor efforts to roll back the green state.

Layzer notes that this subtle strategy has been reinforced by an ideological offensive,
a long game aimed at discrediting government generally and highlighting the costs and
inefficiencies of pollution control and protective conservation policy. This long game
systemic retrenchmentaims to open space for everyday forms of retrenchment
now and to cultivate a political environment in which more fundamental rollbacks
Piersons programmatic retrenchmentmight be achieved in the future.17 Following
Kathleen Thelen and Wolfgang Streeck, Layzer argues that directly or in combination,
direct and low-profile challenges can produce incremental policy changes, which result
in gradual institutional transformations that add up to major historical discontinuities.
Layzer sees an emergent major historical discontinuity in environmental policy arising
from the incremental patterns of drift, conversion, and layering.18

We will turn to these concepts soon, but must start with four critical responses to some
substantive concerns about the retrenchment narrative. First, the failure to repeal or
significantly amend the formal statutes passed in the 1960s and 1970s matters a great
deal. As was noted earlier, the golden era environmental laws generally contain fairly
specific directives to implementing agencies, tied to provisions for citizen petitions to
force agency action and citizen lawsuits to challenge agency inaction. Agencies that
ignore clear legal requirements are regularly and successfully sued by alert
environmental groups.19

of the Reagan years was larger than it was when Carter left office, and staffing held mostly steady at a bit
over 17,000 from 1992 through 2012.
16
New York Times, 2011, What If Republicans Closed the EPA?, August 24,
http://www.nytimes.com/roomfordebate/2011/08/24/what-if-republicans-closed-the-epa.
17
Layzer, Open For Business, chapter 2.
18
Thelen and Streeck quoted in Ibid., p. 25.
19
Layzers suggestion that the courts are an increasingly inhospitable venue for environmentalists seems
problematic. If we look only at the partisanship of appointees, at the end of Obamas second term,
Democrats will have controlled the presidency for 16 of the past 24 years, with important consequences
for the composition of the federal judiciary. As of October, 2014, Obama had filled 280 federal judgeships,
1/3 of the federal judiciary, including 233 district court slots and 53 on the courts of appeal. When Obama
took office Republican appointees were in the majority on 10 of the 13 appeals courts. As of late 2014, 9
of the 13 had Democratic majorities (Jeffrey Toobin, 2014, The Obama Brief, October 27,
http://www.newyorker.com/magazine/2014/10/27/obama-brief). Layzers claim that the Supreme Court
has rolled back standing to sue for environmentalists, backed by references to the 1990 and 1992 Lujan
cases, ignores the important 2000 decision in Friends of the Earth v. Laidlaw, which pointed the other way

6
Consider Layzers own treatment of the George W. Bush administrations efforts to
weaken Clean Air Act (CAA) protections. The Bush administration made relaxing CAA
protections a priority. Its legislative proposals failed, and the administration focused
heavily on rulemaking and subtler forms of retrenchment. Crucially, none of the
administrations major gambitsNew Source Review, the Clean Air Interstate Rule,
Clear Skies, and the cap-and-trade mercury rulesucceeded. Moreover, the Bush EPA
was compelled to finalize a raft of Clinton-era air quality rules because of the
overwhelming evidence supporting those rules. Later, driven by the requirements of the
CAA and the politics of air quality, the Bush EPA adopted new rules covering pollution
from burning diesel fuels that were hailed by environmentalists as great victories.20 The
failure to win rollback amendments to the Clean Air Act meant that the Bush
administration had to fight on terrain defined by the 1970 law. The plain language of the
CAA profoundly limited the Bush administrations leeway for remaking air pollution
policy administratively, or by rule.

Second, while the right obviously has engaged in a long-term ideological project
aimed at creating a political context in which radical retrenchments of the green state
might become possible, this campaign has not been wholly successful. There is general
evidence that the electorate as a whole has become more rather than less liberal in
recent years, and certainly younger cohorts have trended more liberal and
Democratic.21 On environmental issues, generic public attitudes remain fairly supportive
of environmental protection, and again this is especially the case among younger
people, whose attitudes promise to be critical years into the future.22 A March 2014
Gallup poll summarized in the table below, asked respondents to state whether they
prioritized economic growth over environmental protection or vice versa. It showed
considerable support for environmental protection and important differences by age
group.23

and created significant dissonance in this area of law (Layzer, Open for Business, pp. 179-183; Klyza and
Sousa, Beyond Gridlock, p. 177).
20
Layzer does suggest that her argument holds better for natural resources and land management
policies than for pollution control, but this raises more questions than it answers about central tendencies
in environmental policymaking in the Bush years and across the decades she covers. For instance, after
spending eight years passively and then actively seeking to undo Clintons roadless rule protecting
nearly 60 million acres of national forest land, the rule and the protections remain in place in 2016.
21
David Lauter, 2015, More People Say Theyre Liberal, But the Electorate May Not Follow, Los Angeles
Times, June 11, http://www.latimes.com/nation/politics/la-na-more-liberals-20150611-story.html; Pew
Center, 2015, A Different Look at Generations and Partisanship, April 30, http://www.people-
press.org/2015/04/30/a-different-look-at-generations-and-partisanship/.
22
David Daniels, Jon Krosnick, Michael Tichy, and Trevor Thompson, 2012, Public Opinion on
Environmental Issues in the United States, in Michael Kraft and Sheldon Kamieniecki, eds., Handbook of
U.S. Environmental Policy, New York: Oxford University Press, p. 471.
23
Gallup Report, 2014, Americans Again Pick Environment Over Economic Growth, March 20,
http://www.gallup.com/poll/168017/americans-again-pick-environment-economic-growth.aspx.

7
Age group Prioritize environment Prioritize economic growth
18-29 60% 30%
30-49 52% 41%
50-64 49% 41%
65 and older 39% 50%

The struggle to define the role of the state in environmental protection remains just
that, a struggle. The right has surely gained ground, as is evidenced by extremely high
levels of generic distrust in government. But substantial support generic for the cause of
environmentalism remains, and that support is available to be mobilized by defenders of
the green state.

And, of course, there are skilled and well-resourced defenders of environmentalism in

the field, with significant resources and a wealth of experience in framing and reframing
environmental policy problems in ways that complicate realization of the rollback
agenda.24 To put it bluntly, who wants to be on the wrong side of the arsenic-in-
drinking-water question? The right has hammered at the premises of activist
government for decades, but environmental advocates have powerful policy
narratives of their own that carry considerable legitimacy and power.25 This is not to
say that environmentalists dominate political discoursefar from it. But there is little
evidence that the rights narrative has come close to controlling discourse on
environmental policy.26

Third, the political rights ideological project faces major institutional challengesthe
ideas that generated the protective environmental statutes in the 1960s and 1970s are
deeply embedded institutionally. In his treatment of resources policy in the West,
Charles Wilkinson observed that, despite dramatic political, economic, and cultural
changes, policy was still dominated by the lords of yesterday, laws and institutions
reflecting 19th century values and interests.27 As we observed in Beyond Gridlock, the
golden era statutes are the lords of a little while ago, also holding considerable power
to shape policy realities regardless of changes in the broader political-economic and
ideological contexts. The old ideas of the 1960s and 1970s are firmly entrenched in

24
Deborah Lynn Guber and Christopher J. Bosso, 2013, High Hopes and Bitter Disappointment: Public
Discourse and the Limits of the Environmental Movement in Climate Change Politics, in Norman Vig and
Michael Kraft, Environmental Policy: New Directions for the 21st Century, 8th ed., Washington: Sage/CQ
Press, p. 72.
25
On the role of legitimacy narratives in empowering groups representing diffuse interests, see Gunnar
Trumbull, 2012, Strength in Numbers: The Political Power of Weak Interests, Cambridge, MA: Harvard
University Press, chapters. 2 and 5.
26
We have not done the research, but have strong doubts that Baumgartner and Jones-style assessments
of policy image and policy tone focused on, say, air and water pollution policy would show any sharp
negative tilt (Frank Baumgartner and Bryan Jones, 2009, Agendas and Instability in American Politics, 2d
ed., Chicago: University of Chicago Press, chapters 2 and 5).
27
Charles F. Wilkinson, 1992, Crossing the Next Meridian: Land, Water, and the Future of the West, New
York: Island Press.

8
laws, bureaucratic routines, and public expectations. Alert, well-resourced
environmental groups are well-positioned to invoke the requirements of existing laws in
ways that blunt conservative assaults

Finally, it is true that political rights most effective strategies for rolling back
environmental regulation and protective land and resource management policies have
come below the level of legislative politics. Yet non-legislative policymaking
pathways have proven to be productive avenues for environmentalists as well. As
Hacker rightly observed, [P]olitical settings that militate against authoritative change
encourage reformers to seek conversion or erosion of existing policies.28 Legislative
gridlock drives policy initiative out onto alternative pathways. Conservatives have
worked all of the pathways around gridlock: appropriation riders, executive politics
(appointments, administrative centralization through the Office of Management and
Budget, executive orders, rulemaking, the use of discretion over enforcement and
prioritization), collaborative alternatives to traditional regulation, and the states, by
strategically advocating for some authorities (e.g., choices about access to federal lands)
be pushed out to states. But the politics of alternative pathways has been far less one-
dimensional than Layzer suggests. Conservative gambits have often failed, or had only
temporary effects before reversal by courts, Congress, or executive actions taken by
more environmentally-friendly administrations. Environmental interests, too, have used
these pathways around gridlock, often to successful endswitness the Obama
administrations aggressive use of its powers to push for progress on climate policy.
Environmentalists have lost ground on some issues in the struggles of the past several
decades. But it is a mistake to impose a simple retrenchment narrative on the chaotic,
contentious politics of the modern green state.

II. EVERYDAY FORMS OF RETRENCHMENT AND ADVANCEMENT: DRIFT, CONVERSION,

LAYERING

Hacker offered a framework for studying everyday forms of retrenchment, which he

labels drift, conversion, and layering.29 This section will briefly summarize drift,
conversion, and layering, and consider, one-by-one, how each of these concepts can
help us to understand some patterns of retrenchment in environmental policymaking.
(Hackers table summarizing his framework and these types of policy
change/retrenchment is reproduced in Appendix 1 for those unfamiliar with the work.)
As we address each of the concepts we will also attempt to turn the tables, contending
that, properly understood, drift, conversion, and layering are not solely aspects of policy
retrenchment, but instead under some conditions have advanced the objectives of
environmentalists. As we argued in Beyond Gridlock, the chaotic politics of contending
interests and alternative pathways complicates any central tendency in environmental

28
Hacker, Privatizing Risk, p. 247.
29
Ibid., p. 246.

9
policymaking, but we will show that green drift has been an important part of the
story of the past 45 years.

Drift as retrenchment: environmental policy

According to Hacker, drift as a form of retrenchment occurs when (a) authoritative

policy change is blocked by the availability of veto points for supporters of the existing
laws, and (b) the prospects for internal policy conversion are limited by strong interest
group or public support for the status quo and/or clear legal mandates that limit
administrative discretion.30 He defines drift as changes in the operation or effect of
policies that occur without significant changes in those policies structure, typically due
to changes in the social context of policies, such as the rise of new or newly intensified
social risks with which existing programs are poorly equipped to grapple.31 Opponents
of social protection can achieve rollbacks not just by changing lawswhich may prove
to be politically impossiblebut by ensuring that the laws are not updated or adapted
to new demands and changing circumstances. Opponents of minimum wages may not
be able to repeal the minimum wage law (high barriers to statutory change), and they
may not be able to do much to change the policy administratively (there is little room
for amendment by rule). But if they can simply block increases in the minimum wage,
they will have achieved retrenchment and a very real policy success as a result of policy
drift. Scholars looking for statutory changes as indicators of retrenchment wont find
them, and thus might conclude that no significant retrenchment had occurred. But in a
dynamic political-economic environment, the failure to update the law to meet new
circumstances can yield profoundly important policy changes.32

This maps nicely onto challenges in modern environmental policymaking. The old
environmental laws operate in a dynamic context. Economic and technological changes
create new risks, problems, and pressures. Population growth, urbanization, and
globalization continue apace, intensifying old problems and generating new challenges.
Scientific research uncovers new risks, even as the success of old programs at
controlling some sources of environmental degradation illuminate threats from other,
poorly-regulated sources. In the era of congressional gridlock that has held since around
1980,authoritative policy change has proven difficult. Environmentalists seeking to
deepen old commitments and confront emerging challenges have generally failed to win
new laws or major amendments to old statutes.33 Internal policy conversion has also
proven to be challenging in some areas, if not others. The environmental laws of the

30
Ibid., p. 248.
31
Ibid., p. 246.
32
Ibid., p. 245.
33
We should add here, too, that developing knowledge about how to deliver policy results more
efficiently are part of the dynamic political context. In the environmental field, the next generation
school advocates of more efficient, collaborative policy have also failed to achieve anything like
authoritative policy change. See, for example, Donald F. Kettl, ed., 2002, Environmental Governance: A
Report on the Next Generation of Environmental Policy, Washington: Brookings Institution.

10
1960s and 1970s were shaped by the administrative theories of that era, aimed at
avoiding the problems of agency capture that had proliferated across the mid-century
regulatory state. They typically include timetables, fairly specific directives to
implementing agencies, and provisions for both citizen petitions and citizen lawsuits to
force agency action. Given this statutory base, it is difficult to turn the old laws to new,
contradictory purposes. This was especially true because mobilized, attentive
environmental groups, their position buttressed by reasonably strong if highly diffuse
support for their positions, were quick to challenge agency recalcitrance with petitions
and lawsuits.

Thus, the situation seems ripe for drift-as-retrenchment. Retrenchment of this kind
would be most likely when (a) the protective laws passed in the 1960s and 1970s
overlooked or underplayed some important or emergent environmental risk, (b) specific
environmental challenges intensify and overwhelm existing legal and administrative
capacities, and (c) new technologies or societal changes generate new problems not
anticipated by established laws. Where the reach of the existing laws is unclear and a
matter for contestation in the policy process, drift will involve administrative strategies
aimed at blocking the development of new rules, or limiting their scope and effects.

One example of an issue not adequately addressed in the golden era laws is the
regulation of non-point sources of water pollution under the Clean Water Act (CWA).34
Daniel Press accurately observed that the politicians who adopted the 1970 Clean Water
Act focused on what they could see,35 municipal sewage and industrial, point-sources
of pollution. The Acts handling of non-point sources, problems that arise where there
is no pipe, was problematic.36 The very success of point-source regulations magnified
the importance of these non-point sources as degraders of water quality, and in a
different world the law would be updated to account for its obvious weaknesses. But
serious updates to the CWA have not been achievable, and regulations that would
extend the reach of the CWA to address new problems have been blocked or hotly
contested. For example, many states are developing total maximum daily loads (TMDL)
to address rivers and lakes not meeting water quality standards. Such TMDLs are
required under the CWA for threatened and impaired waters, and are becoming the
de facto approach to dealing with non-point water pollution. Many of the TMDLs under
development, often due to court order, have generated considerable controversy (e.g.,
the plan to control nitrogen, phosphorous, and sediment entering Chesapeake Bay).
Although TMDLs are part of the law, each one is developed independently, leading to
substantial administrative and legal conflict that has greatly slowed their development.
Press, citing the failures of the CWA, calls or a new commitment, equal in ambition and
resolve to the one that reformed the dangerous wastewater practices of yesteryear.37

34
See Press, American Environmental Policy, pp. 87-123.
35
Ibid., p. 119.
36
Ibid., p. 87.
37
Ibid., p. 120.

11
For now, though, there are huge barriers to authoritative policy change, and only
limited possibilities for internal policy conversion. So we see Hackers drift-as-
retrenchment: by blocking action to update the law, those opposed to more stringent
water quality regulations win major victories.

Another example of drift enforced by administrative action-as-inaction, one that has

now been slowed by the Obama administration, involves the Clean Air Act and climate
change. Greenhouse gases were not on the minds of those who adopted the CAA. The
CAA does require EPA to issue new standards for emissions found to cause or
contribute to air pollution which may reasonably be anticipated to endanger public
health or welfare, and of course that provision has been at issue in the struggle over
the regulation of greenhouse gases (GHGs).38 The record of the G.W. Bush
administration in blocking waivers and avoiding conducting an endangerment analysis
of GHGs is well knownin this context, this policy of avoidance generated policy drift: if
the CAA could not be updated to address GHGs, opponents of aggressive action on
climate would call the non-decision a major victory. With the endangerment finding of
2009 and the rules that are now flowing from that finding, the Obama administration
has moved to stop the drift, culminating in the Clean Power Plan rule issued in August
2015. Republicans in Congress will attempt to fight this move with policy riders and
industry will seek relief in the courts, seeking to sustain policy drift on climate change.39

The expansion of hydraulic fracturing, or frackingreally the combination of horizontal

drilling and fracturingis an important example of technology running well ahead of
laws and regulations, yielding a form of policy drift. Hydraulic fracturing technology was
introduced in the late 1940s, and the use of new horizontal drilling technologies
expanded in the 1980s. Only in the late 1990s were these technologies effectively
combined to allow extraction from shale, triggering a staggering expansion of oil and gas
drilling in the United States. The nation effectively and quite suddenly became a
petrostate, but the legal and regulatory structure governing the environmental
consequences of this development has been at best slow to respondtechnological and
economic changes fundamentally transformed the meaning and impact of many
environmental laws.40

38
42 U.S. Code 7408, Air Quality Criteria and Control Techniques,
https://www.law.cornell.edu/uscode/text/42/7408.
39
U.S. Environmental Protection Agency (EPA), 2009, Endangerment and Cause or Contribute Findings
for Greenhouse Gases Under Section 202 of the Clean Air Act,
http://www.epa.gov/climatechange/endangerment/.
40
For an excellent overview of the many intersections among existing statutes and fracking, see Adam
Vann, Brandon Murrill, and Mary Tiemann, 2014, Hydraulic Fracturing: Selected Legal Issues,
Congressional Research Service, R43152, September 26. See also James McBride and Mohammed Ali
Sergy, 2015, Hydraulic Fracturing (Fracking), Council on Foreign Relations, June 10,
http://www.cfr.org/energy-and-environment/hydraulic-fracturing-fracking/p31559. It should be noted
that the 2005 Energy Policy Act did exempt fracking fluid from treatment under CWA and the Safe
Drinking Water Act, a statutory change that certainly aided the spread of this technological change.

12
Drift as advancement: green drift

When hostile presidential administrations block or weaken new rules that would extend
environmental protections from the status quo, we agree that policy drift amounts to
retrenchment. But how would we describe movement from the status quo in directions
favored by environmentalists, in an increasingly hostile political environment?

We call this green drift. As we see it, green drift has two dimensions: policy drift and
organizational drift. Policy drift occurs in two circumstances. First, without changes to
the underlying statutes, new rules and executive actions push the environmental laws
into new areas, giving them new power and meaning and enhancing environmental
protections. Outcomes sought by environmentalists are not mandated by statutory
language, but that language opens the way and the processes required by those laws
enable environmental interests and presidential administrations to extend the reach of
the laws. Citizen petitions, citizen lawsuits, routine agency processes, and presidential
administrations preferences all drive this along. We are departing from Hackers drift
concept here, since the adoption of new rules might be viewed as internal policy
conversion in his terms. If that is the case, then the elaboration of environmental
protections under the gridlocked statutes is a form of conversion. But given the stakes
here the specific terms matter little, though we think that the drift metaphor captures
something important in modern environmental policymaking. The realities of green
driftas drift or conversionbelie the retrenchment story. Second, policy drift
occurs when statutes, like the Clean Air Act, require regular updating based on scientific
findings, as in the case of identification and standard-setting for the most widely
occurring air pollutants (legally referred to as criteria pollutants). The CAA requires the
EPA to revisit the National Ambient Air Quality Standards (NAAQS) for these criteria
pollutants every five years, and the agency must revise the standards to protect the
public health based on science without regard to costs of implementing pollution
controls to achieve the standards. Since 2008, despite sometimes vehement opposition
within Congress, the EPA has made the NAAQSs stricter for five of the six criteria
pollutants.41

There are many, many examples of green drift, perhaps best documented in the
expansion in the number of pages in the Federal Register decried by conservatives. As
weve detailed elsewhere, the case of regulating mercury emissions from coal-fired
power plants clearly demonstrates green drift. Although upon entering office the
George W. Bush administration had some flexibility in determining how it would
regulate, it had no choice but to regulate mercury emissions due to the Clean Air Act
and court decisions. The debate over such regulations centered on how to regulate and

41
U.S. EPA, 2013, The Clean Air Act in a Nutshell: How It Works, p. 3,
https://www.epa.gov/sites/production/files/2015-05/documents/caa_nutshell.pdf; U.S. EPA, NAAQS
Table, https://www.epa.gov/criteria-air-pollutants/naaqs-table.

13
how much to regulatethe choice of not regulating the emissions was not an option
(and in the end, the cap-and-trade approach was not an option either).42

Another illustration of policy drift is in the impact of a provision of the Federal Land
Policy and Management Act (FLPMA) of 1976, requiring the Department of the Interior
to take actions to prevent the unnecessary or undue degradation (UUD) of lands
under its control that would be affected by extractive uses, particularly mining. The first
regulations implementing this provision, adopted in 1980, were weak. The rule
essentially ignored the undue degradation language of FLPMA and conceptualized
necessary damages to lands as those that would be caused by a prudent operator
engaged in proficient and customary operations. In 2000, the Clinton
administration, as part of an effort to remake the Mining Law of 1872 administratively,
revised the rule, replacing the prudent operator standard.43 The 2000 regulations
asserted the Interior Secretarys authority to block mining operations that threated
substantial and irreparable harm (SIH) to significant scientific, cultural, or
environmental resource values, harms that could not be effectively mitigated.
According to the Clinton administration, FLPMAs command to the Secretary to prevent
unnecessary or undue degradation created the responsibility to prevent degradation
that is necessary to mining, but undue or excessive. This includes authority to
disapprove plans of operations that would cause undue or excessive harm to the public
lands (my emphasis).44 For the first time, the Bureau of Land Management (BLM)
claimed the power to reject a mining permit because in its view the site was unsuitable
for mining due to potential impacts on environmental or cultural resources.45 That is,
the SIH standard underpinned a novel power to say no to hardrock mines on federal
lands, cracking the right to mine institutionalized in the 1872 Mining Law. The
administration immediately used this new standard to block a California gold mine
based on concerns about Native American cultural sites and undue environmental
degradation. Interior Secretary Bruce Babbitt said,

This is the first large gold mine we have rejected. The reason is that for a quarter
century the mining industry has prevailed in arguing that the Mining Law of 1872
gives them an absolute right to do whatever is necessary to further their mining
plans on public land. Thats simply not the case. In 1976 Congress forbade
undue degradation. No previous administration has taken that position. We do.46

Policymaking on the executive politics pathway is unstable, changing with partisan

control of the White House. After the 2000 election the Bush administration pushed

42
Klyza and Sousa, Beyond Gridlock, pp. 450-455.
43
David Sousa, 2013, Hard as a Rock? The Mining Law of 1872, presented at the Annual Meeting of the
Pacific Northwest Political Science Association, Vancouver, BC, October.
44
Quoted in Christine Knight, 2002, A Regulatory Minefield: Can the Department of the Interior Say No
to a Hardrock Mine?, University of Colorado Law Review 73: 648.
45
Ibid.
46
Babbitt quoted in Knight, A Regulatory Minefield, p. 653.

14
back with new rules. Bushs Interior Department accepted several of the new limits on
mining imposed by the Clinton administration, but returned to the prudent operator
standard, rejecting the Clinton-era prohibition against substantial and irreparable
harm. A coalition of environmental groups sued, arguing that the prudent operator
standard blocked only environmental damages unnecessary for mining, thus
abdicating the Interior Departments legal responsibility to prevent undue
degradation as well.47 In Mineral Policy Center v. Norton (2003), federal district court
judge Henry Kennedy agreed that the Bush Interior Department misread FLPMA, which
by its plain terms, vests the Secretary of the Interior with the authorityand indeed
the obligationto disapprove of an otherwise permissible mining operation because
the operation, though necessary to mining, would unduly harm or degrade the public
land.48 That is, Kennedy declared that the Department of the Interior has the authority
to say no to mines on environmental grounds. Having made this explosive
interpretation, Kennedy then backed away, arguing that Chevron deference required
him to let the Bush rule stand.49 Still, the Bush Interior Department made a host of new
commitments: it would prevent UUD by exercising case-by-case discretion to approve or
reject plans of operations, requiring financial guarantees, linking mine performance
standards to the panoply of laws that apply to mining operations, including the
Endangered Species Act (ESA), the Clean Water Act, the Comprehensive Environmental
Response, Compensation, and Liability Act (commonly known as Superfund), the Clean
Air Act, and the Archeological Resources and Protection Act, and using the Secretarys
FLPMA withdrawal powers to block mining in areas of critical environmental concern. 50

The most aggressive part of Clintons campaign to restrict mining on federal lands was
turned back, but Mineral Policy Center v. Norton was a Pyrrhic victory for mining
interests. Judge Kennedy explicitly ruled that FLPMA UUD requires the Interior Secretary
to reject mines that threatened undue degradation of public lands. There is a power to
say no, where it did not exist before. The Mineral Policy Center, the environmental
group leading the litigation, saw Kennedys decision as the most significant ruling on
mining law in decades for this reason; Roger Flynn of the Western Mining Action
project, said the court decision means the Interior Department is obligated to protect
public land from the most destructive mining practices. Kennedys ruling would not be
particularly meaningful in the Bush years, but the right to say no is now firmly
established as a tool in the arsenal of those determined to restrict environmentally
damaging mining practices.51

This is one of the ways green policy drift works. The statutory language slowly, even
haltingly, changes the world in ways sought by environmental interests. The Clinton
administration, supported by allies in the environmental community, pushed at the

47
Mineral Policy Center v. Norton, 292 F. Supp 30 (2003).
48
Ibid., p. 35.
49
Ibid., p. 45.
50
Ibid., pp. 43-44.
51
Marty Coyne, 2003, Federal Court Tells Interior to Bar Damaging Mines, Land Letter, November 20.

15
settled language of the law. The Bush administration pushed back, accepting some new
limitations on mining practices while undoing the core Clinton rule. This led to a legal
challenge, which in this case was a victory for the Bush administration wrapped inside a
measurable gain for environmental interests. The Bush administration promised new
case-by-case assessments of the environmental impact of mines and their consistency
with the panoply of environmental statutes, and Mineral Policy Center v. Norton also
established a judicially-recognized FLPMA-based power to say no to mining projects
based on environmental concerns.

Under what conditions would we expect to see green drift?

1. Green drift is far more likely where statutes establish clear requirements
(including time constraints to set and reexamine standards), attached to
provisions for citizen petitions and citizen lawsuits.

2. Green drift is not confined to issues where there are clear requirements
attached to provisions for citizen petitions and citizen lawsuits. Even vague
protective language, like the authority to prevent unnecessary or undue
degradation in FLPMA, can have powerful effects when mobilized by friendly
administrations or concerned interest groups.

3. Green drift is more likely when presidential administrations are more supportive
of environmental protection goals. The executive politics pathway is an
important source of innovation and instability in environmental policymaking.
Executive orders, rulemaking, the creative use of discretion built into statutes,
and discretion in enforcement are used by both Democratic and Republican
administrations, and in service of and opposition to the policy goals of
environmentalists. It is also true, as in the case of the George W. Bush
administrations diesel rules, that statutory requirements, scientific
understandings, and politics can come together to push policy in protective
directions despite the preferences of presidential administrations.

4. Some issues may lend themselves to framing that greens can use to advance
their agendas. Green drift will be more likely to occur on issues involving clear
and easily identifiable public health concerns (e.g., arsenic in drinking water).
This may also be at work where icons are in play, be they cathedral forests or
northwest salmon. (Frightening icons, like wolves and grizzlies, may have a
harder go of it.)

5. On the other side of things, groups like the Center for Biological Diversity may
have great success moving policy when dealing with narrower problems,
challenges posed to a particular, localized species by a specific development
project. These less visible controversies may be insulated from the macropolitics

16
 of left and right, leaving the issue to be decided by the plain language of the laws
and administrators implementing those laws.

6. Green drift can come as a form of conversion, as when environmental interests

transformed the ESA into an occasionally powerful tool for attacking
development interests, despite the original intentions of the statute.

7. Because of the role that scientific knowledge plays in shaping the

implementation of crucial environmental statutes, we are more likely (but
obviously not certain) to see drift in areas where there is scientific consensus.
The desperate struggles on the part of opponents of environmental protection
to manufacture doubt only highlights the importance of scientific consensus in
powering drift.

8. Green drift is more likely when it is driven by regulatory requirements and does
not rely on government spending (e.g., the Clean Air Act requiring a reduction in
mercury emissions by coal-fired utilities). For instance, green drift is less likely to
lead to ecological restoration that relies on substantial funding.

The second form of green drift comes in the form of slow organizational change,
organizational drift, as the constant pounding of agencies like the Forest Service and the
Bureau of Land Management by statutory requirements, citizen petitions, litigation,
negative publicity, and pressures from presidential administrations committed to
environmental protection challenge established agency premises, opening them to new
values and new interests. This is a tortuous process, but as it takes hold it deepens the
green state and blunts some of the pressures that Layzer has documented. While
conservatives have tried to alter the macro-political environment in ways that would
open up opportunities for policy retrenchment, the Forest Service and the BLM have
been operating under the Endangered Species Act and FLPMA and the National
Environmental Policy Act for what is approaching half a century. We should expect that,
eventually, the process predicaments that have bound these and other agencies will
foster more balanced approaches to stewardship. Scholarship on the Forest Service
shows that it is increasingly open to environmental concerns, and that younger agency
employees carry different value sets than their predecessors.52 Edward Weber and Sara
Miller Chonaiew find this pattern at the Bureau of Land Management, suggesting that
the traditional vision of a captured agency should be revised. They find

52
The literature on the breakdown of capture at the Forest Service and BLM politics begins with Paul
Culhane (1981, Public Lands Politics: Interest Group Influence and the Forest Service and the Bureau of
Land Management, Baltimore: Johns Hopkins University Press for Resources for the Future). A useful
recent study is Greg Brown, Trevor G. Squirrell, and Charles C. Harris, 2010, Growing Organizational
Challenges for the US Forest Service: Results of a Longitudinal Study in a Period of Major Environmental
Change, Journal of Forestry 108 (2): 77-85.

17
 that the BLM of contemporary times is not captured to the same degreeas
during the classic capture period (1950-1976). Instead, the contemporary BLMs
story reflects the slow accumulation and solidification of environmental
protection, and even sustainability, into its multi-faceted approach to developing
and managing the many natural and mineral resources under its control. In
short, the growing power of environmental policy constraints and competition
from the new uses (recreation) reflecting changing societal values appear to be
limiting the potential for capture by development interests.53

These developments are missing from accounts of environmental policymaking that

emphasize rollbacks and a changing public discourse about the role and effectiveness of
government. These agencies have been forced into engagement with actors carrying
new sorts of values into the policymaking process, and with courts empowered to
compel agencies to accommodate environmental interests.

Conversion as retrenchment: environmental policy

For Hacker, conversion, the internal adaptation of existing policy, is most likely when
there are high barriers to authoritative policy change, but where constraints on internal
policy conversion are lowdecision makers have considerable discretion and the policy
is highly mutable.54 Hacker, Pierson, and Thelen expand upon this, asserting that
conversion-as-retrenchment occurs when political actors are able to redirect
institutions or policies toward purposes beyond their original intent.55 They point to
the Sherman Antitrust Act, aimed at monopolistic corporations but quickly turned into
an anti-union weapon. Hacker pointed to the ways that employers have used their
discretion to restructure the publicly-subsidized benefits that they voluntarily provide,
shifting greater health benefit and retirement risks and costs to individuals.56

Carrying this concept to regulatory policy yields some interesting connections and some
real problems for the conversion-as-retrenchment idea. The regulatory capture
literature that grew at mid-century develops a powerful conversion story. In the least
cynical version of this story, politicians seeking to protect public interests create
agencies to regulate railroads, trucking, airlines, food and drug safety, and the like. But
flaws in institutional design, the sundry incentives of bureaucrats, politicians, and
regulated interests, and the publics inattentiveness turn those agencies into servants of
regulated interests. This surely looks like Hacker, et al.s conversion.

53
Edward Weber and Sarah Miller Chonaiew, 2015, The Question of Capture for BLM: Whos Really in
Charge?, presented at the Annual Meeting of the Midwest Political Science Association, Chicago, April, p.
19. See also James R. Skillen, 2009, The Nations Largest Landlord: The Bureau of Land Management in
the American West, Lawrence, KS: University Press of Kansas.
54
Hacker, Privatizing Risk, p. 248.
55
Hacker, Pierson, and Thelen, Drift and Conversion, p. 180.
56
Hacker, Privatizing Risk, pp. 248, 252-256.

18
But there are difficulties carrying this capture narrative into environmental policy. Again,
the laws of the 1960s and 1970s were shaped by concerns about agency capture that
preoccupied scholars around mid-century. The laws were written precisely to avoid
conversion. EPAs political masters may lead it to timidity. But it would be hard to
describe EPA as captured, or to point to examples of pollution control policies that have
been twisted in the way that the Sherman Act was twisted. Hindering this sort of
conversion was the very point of the agency-forcing mechanisms built into the laws, and
those laws have been effective in this respect. It may be easier to carry this conversion
narrative into land and resource management. The close ties of the Bureau of Land
Management to grazing and extractive interests, and the Forest Services good service
to the timber industry, are well-documented. Yet even here, the capture/conversion
narrative is problematic because, as Weber and Chonaiew show in their study of BLM,
the superstructure of environmental laws passed in the 1960s and 1970s has
challenged those old relationships, and created ongoing pressures for changes in the
operating premises of the agency.57 BLM may attempt to evade laws that constrain its
behavior, but thats not conversion, its illegality. In conservation and natural resources
policy the trend has been from closed policy subsystems to more open ones, leading to
increased conflict over forest management, grazing, mining, and water development
and management.58

Conversion as advancement: green drift

In fact, if conversion occurs when political actors are able to redirect institutions or
policies toward purposes beyond their original intent,59 there has been a considerable
amount of green conversion over the years. Conversion can yield policy advances as
well as retrenchment.

One example is the expanding impact of the Endangered Species Act, far beyond the
expectations of those who enacted the law. Environmentalists converted a law aimed at
protecting a few charismatic megafauna into a powerful tool for institutional
disruption. The ESAs record in recovering species has been uneven, in many cases with
timid implementations to blame. But in critical instancesthe spotted owl/timber and
salmon recovery/river management in the Northwest come to mindthe ESA has been
an effective tool for disrupting established policy subsystems, forcing agencies to adapt
to new demands. Environmental groups have sought to leverage climate policy through
the listing of polar bears, and sought to rein in oil and gas development in the West by

57
Weber and Chonaiew, 2015, The Question of Capture for BLM.
58
On forest policy, see the contrast between Paul W. Hirt (1994, A Conspiracy of Optimism: Management
of the National Forests since World War Two, Lincoln, NE: University of Nebraska Press) and Samuel P.
Hays (2007, Wars in the Woods: The Rise of Ecological Forestry in America, Pittsburgh: University of
Pittsburgh Press); on water management, reading about the raging conflict over managing Californias
Bay-Delta region, where endangered fish face off with California agriculture, hardly illuminates a story of
retrenchment by conversion.
59
Hacker, Pierson, and Thelen, Drift and Conversion, p. 180.

19
pressing for listings of various grouse populations. These efforts were likely a bridge too
far, but who in 1973 would have imagined that anyone would attempt to use
convertthe law in this way? Moreover, on lesser issues, groups like the Center for
Biological Diversity have used the law successfully to block or rechannel development
(e.g., significantly reducing grazing in riparian areas in the Southwest).

A similar example is the conversion of the Antiquities Act of 1906 into a major tool for
land protection. Theodore Roosevelt took this law, aimed at protecting small
archeological sites in the West, and used it to protect the Grand Canyon. Some of his
successors carried on this legacy of conversion and Bill Clinton, chasing Teddy
Roosevelts ghost, built much of his environmental record on the aggressive use of the
Antiquities Act to protect millions of acres of land.60 The threat of monument
designations under the Act gave Clinton and now the Obama administration leverage in
fights over formal designations under the Wilderness Act. Recently, Idahoans led by
Representative Mike Simpson (R) supported the creation of the new Boulder-White
Clouds Wilderness as an alternative to what might have been a much larger monument
created by Obama under the Antiquities Act.61

We might also look, once again, at the climate issue. As was noted above, those who
passed the Clean Air Act did not see climate change as a critical issue, and they did not
explicitly provide for regulation of GHGs. But the law created a process for identifying
and setting standards for pollutants not considered in the original law. The Obama EPAs
endangerment finding promised to slow drift on climate, bringing GHGs and the
climate issue into the ambit of the CAA. The full implications of this move are not yet
clear, and there will be considerable political and legal contestation over the rules and
orders that will flow from the endangerment finding. But Obama and his allies have
converted the CAA into a tool for limiting carbon emissions, drawing the green state
more deeply into core processes of the U.S. economy.

Layering as retrenchment: environmental policy

In Hackers terms, layering occurs when the barriers to authoritative policy change are
low, but constraints on internal policy conversion are high. New policies are layered
over the old, leaving the original statutory framework intact. Hackers leading example is
the creation of tax breaks for private retirement accounts, as part of a conservative
effort to establish the infrastructure for an alternative to Social Security. Layering occurs
when proponents of change work around institutions that have fostered vested
interests and long-term expectations by adding new institutions rather than
dismantling the old.62

60
Klyza and Sousa, Beyond Gridlock, pp. 100-112, 370n9.
61
Robert Semple, Jr., 2015, President Obamas Eleventh Hour Conservation Efforts, New York Times,
August 14.
62
Hacker, Privatizing Risk, p. 248.

20
In environmental policymaking, layering-as-retrenchment takes two related forms.
Administrative layering imposes new requirements on regulatory agencies, mainly
through executive orders. Presidentially-mandated requirements for the cost-benefit
analyses of proposed rules, and for the role in regulatory clearance played by the Office
of Management and Budgets Office of Information and Regulatory Affairs (OIRA), are
especially important kinds of layering.63 Republican and Democratic presidents alike
have issued executive orders requiring and expanding the reach of cost-benefit analysis
and mandating regulatory clearance, in part to create greater efficiencies and in part to
bring agencies into line with presidential priorities. Administrative layering takes other
forms. For example, OIRA directors have made less formal efforts at administrative
centralization that have laid new processes atop established administrative procedures,
offering backdoor access to industries to complain about proposed rules creating what
one critic called a one-way ratchet that only weakens agency rules.64

So administrative layering occurs as presidents seek to lay new process requirements

over those specified in the Administrative Procedures Act and the core environmental
statutes in order to rein in the agencies. The resulting rollbacks will be subtle, involving
blocking rules (non-decisions), delays during which the political landscape might change
in ways that favor polluting interests, or substantive changes favoring polluters, whose
environmental and economic effects are understood best only by affected industries
and a few repeat players in administrative politics. Hacker, et al. are correct that
understanding this kind of retrenchment requires getting very close to the policy
ground, and the retrenchments that occur may be visible only to specialists with deep
knowledge of administrative processes and standard-setting.

But there are sharp limits to administrative layering-as-retrenchment. First, the impact
of this sort of layering will depend on the priorities of presidential administrations.

Second, there is evidence that the institutionalization of cost-benefit analysis, and the
maturation and acceptance of specific methodologies for estimating regulatory costs
and benefits, has increased rather than impinged upon the autonomy of agencies and
enhanced the case for environmental protections. Law professor Michael Livermore

63
The OIRA was itself created in an act of statutory layering, the Paperwork Reduction Act of 1980 (PRA).
OIRA assesses federal government agencies demands for information under the PRA and oversees agency
implementation of the Data Quality Act, including peer review practices at the agencies. It also oversees
implementation of executive orders imposing various cost-benefit analysis requirements on regulatory
agencies, and reviews draft regulations to ensure compliance with the executive orders (Office of
Management and Budget, Office of Information and Regulatory Affairs, n.d.,
http://www.reginfo.gov/public/jsp/Utilities/faq.jsp).
64
Layzer, Open for Business, pp. 267-68. It is notable that Layzer herself reported that two of John
Grahams more aggressive moves when head of OIRA during the George W. Bush administration, one
aimed at changing the ways that EPA estimated the value of human life to lower the estimated benefits of
regulation, and the other the publication of a Risk Assessment Bulletin aimed at guiding agencies risk
assessments, both failed.

21
shows that EPA has taken the lead in the development of cost-benefit methodology.
EPAs in-house resources for developing cost-benefit assessments dwarf those of OIRA,
and some core assumptions built into the method (e.g., the value of human life)
generate estimates of regulatory benefits that far exceed economic costs. EPA estimates
that its air pollution regulations generate $1.3 trillion per year in benefits, a figure that
dwarfs the costs of regulatory controls. The recent mercury and air toxics standards
turned back in the Supreme Court because the majority found that EPA did not
adequately factor in costs, was based on a cost-benefit assessment that showed $9.7
billion in costs, and health benefits estimated at between $37 and $90 billion. Livermore
contends that when it was instituted in the Reagan years, cost-benefit analysis was
designed to constrain regulatory agencies, but since that time Cost-benefit analysis has
matured as a methodology. The costs are lower than many people would think and the
benefits are quite high.65 As the practice of cost-benefit analysis has developed, cost-
benefit analysis may offer environmentalists leverage.

Third, the administrative layer rests atop the pre-existing environmental laws, which
carry clear legal mandates. So whatever its dark powers, the OIRAs actions are subject
to legal and political challenges from alert environmental groups. Industry groups may
have superior financial resources, but there are simply no information asymmetries in
this spheregreens know exactly what is going on and they have sufficient resources to
carry their resistance to the courts and out to the media and the larger public. This
complicates the inside game of administrative layering. For example, the clearest
example Layzer offers of OIRA action in the Obama years was OIRA head Cass Sunsteins
blocking of new ozone regulations due for issuance in 2011. Environmental and public
health advocates sued immediately and successfully, and the administration issued
aggressive new rules in 2014.66

While administrative layering is an occasionally powerful tool, these administratively-

imposed processes constitute a rather thin stratum of policies set atop the
environmental laws that define the policy terrain. Administrative layering may
occasionally block or trim the logics of the golden era statutes, but it is reactive, dealing
with realities and policy possibilities defined by laws carrying powerful, lasting
mandates.67 Unlike the laws, administrative layering is also reversible, to the extent that

65
Livermore quoted in Elizabeth Shogren, 2015, The Arrival of the Cost-Benefit State, High Country
News, August 3, p. 3; Michael Livermore, 2014, Cost-Benefit Analysis and Agency Independence,
University of Chicago Law Review 81: 609-688..
66
Coral Davenport, 2014, Obama to Introduce Sweeping New Controls Aimed at Ozone, New York
Times, November 25; Layzer, Open for Business, Ibid; Rena Steinzor, Michael Patoka, and James Goodwin,
2011, Behind Closed Doors at the White House: How Politics Trumps Protection of Public Health, Worker
Safety, and the Environment, Center for Progressive Reform,
http://www.progressivereform.org/articles/OIRA_Meetings_1111.pdf.
67
Orren and Skowronek use the metaphor of modern planners confronting the existing downtown
Tokyo as a way of describing the impact of past commitments on current possibilities. The planners
options are powerfully constrained by the maps given them by history (Orren and Skowronek, The Search
for American Political Development, p. 6).

22
future administrations can easily undo the actions with new orders. Like their
Republican counterparts these administrations have offered side-door access to the
regulatory process to industry groups, moves which are anathema to environmentalists.
But Clinton and Obama (moreso than their Republican counterparts) also advanced
many profoundly important, protective rules on air and water pollution and land
protection.

Statutory layering occurs through the adoption of new laws or policy riders on
appropriation bills that carry purposes contrary to the core environmental statutes.
These statutes and riders can be narrowly procedural, like the Paperwork Reduction Act
of 1980 and the so-called Data Quality Act, a 2001 policy rider aimed at making it easier
to challenge the quality, objectivity, utility, and integrity of scientific findings and data
used by federal agencies. They can have broader procedural effects, like the Healthy
Forests Restoration Act of 2003 (HFRA), which exempted some logging projects from
searching National Environmental Policy Act reviews and limited administrative appeals
of Forest Service decisions to proceed with timber cuts reframed as anti-wildfire fuels
reduction projects.68 HFRA and the infamous 1995 salvage rider had similar layering
effects, imposing new, expedited procedures to try to break the process predicament
confronting the Forest Service as it faced a host of mandates from the core
environmental laws. Statutory layering can also be deep and substantive, with long-term
implications for the reach and power of the green state. The Energy Policy Act of 2005,
with its vast subsidies to domestic oil and gas producers, both on and offshore, and
provisions insulating fracking from regulation, can be read as reinforcing an already
thick commitment to fossil fuels and resource extraction on public as well as private
lands, layering that policy over the broad commitments to pollution control and
balanced land management built into the golden era environmental laws. Hacker saw
the tax subsidies to private retirement plans as part of a long-term effort to foster
alternatives to Social Security. The Energy Policy Act has helped to deepen the American
addiction to relatively inexpensive oil and gas, andas the drilling economy has grown
up in new areas of the countryfurther embedded oil and gas extraction at the core of
the U.S. economy.

Layering as advancement: energizing environmental policy conflicts, driving green drift

Layering, then, can drive policy retrenchment. But we think that forcing the layering
concept into the retrenchment narrative misses critical aspects of the layering
phenomenon. Administrative and statutory layering are not only tools for retrenchment.
Both types of layering have at times advanced the cause of environmental protection.
Obamas efforts to curb greenhouse gas emissions through various executive actions is
an important example on the administrative side; the $90 billion green stimulus built
into the 2009 American Recovery and Reinvestment Act (the so-called stimulus bill),

68
United States Forest Service, 2015, Healthy Forests Initiative and the Healthy Forests Restoration Act:
Interim Field Guide, August 10, http://www.fs.fed.us/projects/hfi/field-guide/web/page03.php.

23
which offered substantial subsidies for alternative energy among other projects, is an
example of statutory layering.69

But the problem with focusing on layering-as-retrenchment and using this to inform a
retrenchment narrative runs deeper. Students of American political development have
shown that layering is the process by which almost all political change takes place. In
building the modern green state with the laws of the 1960s and 1970s, policymakers
layered new commitments to environmental protection over an industrial economy
which had grown up easily shifting the costs of environmental degradation onto the
larger community, and commitments to more responsible management of land and
resources over venerable, industry-friendly policy regimes governing timber and grazing.
The result is a classic case of what Orren and Skowronek call intercurrence, the
grinding together of incongruous, even contradictory policy commitments rooted in
different values, interests, and historical periods. The tensions between these layers
energize environmental policy conflicts, and are really the very stuff of environmental
politics. Cramming the resulting fuguelike motion of stops and starts, with backtracking
and leapfrogging into a simple retrenchment narrative requires ignoring the deep
complexity of modern environmental politics and policymaking, and the nature of the
modern green state itself.70 Indeed, it is this intercurrence between policies from
different layers of the green state, such as irrigation or public lands grazing and
endangered species, that often make environmental issues so conflictual. As we have
argued, the basic contours of modern policy, the ground on which policy struggles take
place, was set by layering that occurred at the demand of environmental interests in
the 1960s and 1970s.

III. CONCLUSION

The paper develops two lines of argument. First, even when we look past statutes and
budgets to the subtle strategies by which policy is made, the retrenchment narrative
appears to offer, at best, a partial assessment of modern environmental policymaking.
Policymaking on alternative pathways has frequently worked to the advantage of
environmental interests capable of exploiting attractive policy frames and the
requirements of settled statutes to push the logics of environmental protection forward.
Second, the political science literature on retrenchment, spearheaded by Hacker in his
work on drift, conversion, and layering, can help us to understand some of the ways that
rollback occurs. But, at least in environmental policy, patterns that look like drift,
layering, and conversion have advanced rather than retrenched environmental
protection. As scholars work to connect the environmental policy field to the broader
field of policy studies, it appears that there is an opportunity here for theoretical
development in both areas.

69
Jim Tankersley, 2013, Solyndra Stunk: The Green Stimulus Didnt, Washington Post, January 9.
70
Orren and Skowronek, The Search for American Political Development, p. 11.

24
We have, perhaps, confused the link between our work and the Hacker, et al. project by
calling what we have seen in modern environmental policymaking drift, which has a
specific and narrower meaning in the policy literature. We wanted to name what we
have seen in ways that would, we hoped, resonate with students and others interested
in understanding some broad patterns in the environmental policy field. So our larger
argument is that the green drift phenomenon is an important tendency in modern
environmental policymaking. It may be a central tendency, given the lay of the land and
the shape of public opinion on many environmental issues, but, minimally, the realities
of green drift complicate the retrenchment narrative and need to be accounted for as
we write our books, teach our students, and communicate with the larger community
about the policy legacies of the 1960s and 1970s and what has come after.

25
APPENDIX 1: HACKERS FOUR MODELS OF POLICY CHANGE
(Adapted from Hacker, Privatizing Risk, p. 248)

Barriers to
Internal Policy
Conversion

High Low

High DRIFT CONVERSION

(Transformation (Internal adaptation
of stable policy of existing policy)
due to changing
Barriers to conditions)
Authoritative
Policy Change

Low LAYERING REVISION

(Creation of new
policy (formal reform, replacement,
without elimination or elimination of existing
of the old) policy)

26