UC Berkeley UC Berkeley Electronic Theses and Dissertations
Title A “Stupid Little Fish”: Science, Law and the Politics of Environmental Decline in California
Permalink https://escholarship.org/uc/item/9cc8n1k4
Author Scoville, Caleb Richard
Publication Date 2020
Peer reviewed|Thesis/dissertation
eScholarship.org Powered by the California Digital Library University of California A “Stupid Little Fish”: Science, Law and the Politics of Environmental Decline in California
By
Caleb Richard Scoville
A dissertation submitted in partial satisfaction of the
requirements for the degree of
Doctor of Philosophy
in
Sociology
in the
Graduate Division
of the
University of California, Berkeley
Committee in Charge:
Professor Marion Fourcade, Chair Professor Neil Fligstein Professor Calvin Morrill Professor Andrew Lakoff
Summer 2020
Abstract
A “Stupid Little Fish”: Science, Law and the Politics of Environmental Decline in California
by
Caleb Richard Scoville
Doctor of Philosophy in Sociology
University of California, Berkeley
Professor Marion Fourcade, Chair
This dissertation presents an in-depth study of one of the most controversial endangered species in United States history, and advances a theoretical framework for understanding the emergence of environmental problems in contemporary society. The delta smelt is a tiny fish found only in the Sacramento-San Joaquin Delta, the lynchpin of California’s water system. Legal protections of this once obscure species have made it a central player in California’s “water wars,” mobilizing political actors from the local level to the presidency. Drawing on archival sources, field observations, interviews, thousands of news articles, and social media data, I argue that far from being a mere conflict between interested actors, the contemporary controversy over the delta smelt emerged via sequential clashes among social domains which share jurisdiction over the nonhuman environment yet see “nature” in different ways. I call this process the “intervention cascade.” In the first chapter, “Becoming Endangered,” I show that it was only through the process of reengineering California’s river systems that the delta smelt came to be understood as a unique species, and one in danger of becoming extinct. Beyond simply being driven to near-extinction by California’s water infrastructure, the delta smelt was produced as an object of knowledge by that very infrastructural intervention in the first place. In the second chapter, “Constructing Environmental Compliance,” I theorize scientists as compliance professionals in relation to environmental law, tracing the changing relationship between science and law as the delta smelt’s population has declined. I explain why three distinct “compliance relations” became dominant at different junctures in the course of three decades’ worth of attempts to reconcile the delta smelt’s continued existence with the operation of California’s water infrastructure. In chapter three, “From the Water Wars to the Culture Wars,” I show how attempts to protect the species pursuant to the Endangered Species Act overflowed into a polarized public sphere. The controversy took on a life of its own, disconnected from and disproportionate to the delta smelt’s modest impact on water policy. Rather than the controversy being the straightforward result of constituencies pursuing their interests, the delta smelt’s status as a political symbol has been an important cause of the very constituencies that claim to have an interest in California water politics at all. Broadly, this research motivates a framework for understanding how the nonhuman environment mediates social conflicts, accounting for the dual realities of rapid environmental decline and intense disagreement over the meaning of nature.
1 Acknowledgements
Infrastructures are often least perceptible to those most reliant on them, only to become visible when they break down (Star and Ruhleder 1996). Recent periods of extreme drought have confronted Californians with the prospect, and at times reality, of the failure of the state’s mammoth water systems. Half-empty reservoirs with “bathtub-rings” have shown them far below normal water storage capacity. Fallow fields and laid off farm workers have became symbols of water scarcity’s economic toll. Restrictions on domestic water use have frustrated everyday habits. In a similar but far more extreme manner, the COVID-19 pandemic has exposed the infrastructures of ordinary life. As I write these words, I am fortunate to be in good health and economic security during an acute global crisis. While many have suffered fates much worse, the pandemic interrupted the final stages of my dissertation research and writing. In so doing, it laid bare the infrastructures that had until then made my work possible. As a parent of a small child, access to affordable childcare has been essential to making progress toward the completion of my doctorate. Much as a drought can make physical infrastructures visible in new ways, there is nothing like a pandemic to shine light on all of the people who help us manage our daily lives. This dissertation is dedicated to the teachers at the University of California, Berkeley’s Early Childhood Education Program who made my experience in graduate school possible by caring for my child during the day while I was at work. I hope that early childhood educators will one day receive the remuneration and respect that they deserve, and that high quality affordable childcare will become a universal social right. This dissertation owes to the influence and support of so many individuals that it would be impossible to reliably list them all. Nonetheless I must make an attempt with the knowledge that the following will not do justice to the task. My academic mentors at the University of California, Berkeley helped me turn a set of vague theoretical intuitions into a research agenda. Although I did not come with a dissertation topic in hand, I did have the good sense to come to Berkeley with the intention of working with Marion Fourcade. That proved to be one of the best decisions I made in graduate school. Marion has served as an exemplar of the type of scholar I hope to become. Her intellectual curiosity knows no end. The breadth of her scholarly knowledge is staggering in an era of hyper-specialization. And she somehow manages to write in a way that is at once erudite and unpretentious, incisive in its analysis, and fair to all interlocutors. As my dissertation chair, she has always been available to provide honest redirection and constructive criticism on the turn of a dime, often providing in-line comments on multiple emailed drafts in the course of a single day. At the same time, she has entrusted me with the space to develop my own intellectual personality and to take ownership of my own scholarly ventures, even when they have taken me far outside the conventional jurisdiction of the discipline of sociology. When I received my first email from Neil Fligstein, my life changed forever. He was the chair of the admissions committee when I applied to Berkeley, and the face of the department until I began the program. Since then, Neil has been a consistent source of scholarly, strategic, and personal support. In his seminars, workshops, and one-on-one meetings, Neil has been exceedingly generous with practical guidance on academic writing, presenting, and publishing. Whenever my aim is to make sure I am communicating my ideas in a clear and compelling way to the broadest possible audience, Neil is my first stop. It is no accident that Neil played an active role at critical moments of this project’s formation over my six years at Berkeley. His advice on
i research design and theoretical framing got this project off the ground in the early stages, and helped me get unstuck in various points thereafter. From crafting my initial plan for my Master’s paper in his course during my first year (which would become chapter one of this dissertation and my first major empirical publication), to developing my prospectus, to refining my job market talk, Neil has been an indispensable mentor. Among graduate students in the Departments of Sociology and Jurisprudence and Social Policy, Calvin Morrill is notorious for being one of the most genuinely helpful people on the UC Berkeley campus. Perhaps because he is a great ethnographer, Cal’s ability to listen is unmatched. When going into a meeting with Cal, you know that you will not be pushed to think about the world in his way, or change your topic to suit his whims. He will meet you exactly where you are and help you develop a concrete plan to develop the best possible version of your ideas. Cal’s advanced methods course was where I began fieldwork for this dissertation project. Since then he has provided invaluable methodological guidance. Cal helped me gain confidence in my methodological eclecticism, while also forcing me to consider potential objections to how I mobilize evidence. Additionally, Cal’s expertise in the sociology of law helped me to develop my contributions to that subfield when this project unexpectedly took me into that terrain. I admired Andrew Lakoff’s work prior to coming to Berkeley, but our paths did not cross until I saw that he published an article on the delta smelt just as I was completing my Master’s paper on the case. I must admit that as a budding scholar, I wondered if I should avoid wading further into another scholar’s research site. After experiencing his generosity first hand, it became clear how misplaced my worries were. Andy was among the first to encourage me to write a full dissertation on the delta smelt. He immediately treated me as a serious interlocutor and collaborator. Together we organized an interdisciplinary conference on water in California in 2017. He introduced me to the vibrant intellectual community surrounding Limn via workshops and panel presentations. Given that he is one of the few critical or interpretive social scientists with in-depth knowledge of the case of the delta smelt and the broader techno-politics of water in California, Andy’s comments and questions have helped me account for important dimensions of the case that I otherwise might have ignored. His substantive knowledge has helped ensure my work’s accuracy. Our ongoing exchanges have sustained my focus on the true stakes of this project during a turbulent historical period. Other intellectual mentors not on my committee contributed to the development of this project. Razvan Amironesei has played an immense role in my intellectual formation. Over the last decade, we have developed a unique bond that has shaped all aspects of my life and work. I may not fully live up to his standards of conceptual clarity and coherence, but my work bears the mark of someone who has tried. Razvan introduced me to his intellectual mentor Olivier Clain, with whom we had the opportunity to spend significant time discussing social theory and the philosophy of nature on several occasions both in Quebec and California (all with good food and wine of course). Bearing witness to Olivier’s incomparable style of thinking had an impact on me, which is reflected in this dissertation. Michael Burawoy is the most dedicated pedagogue I have ever encountered. I did not predict how much this project would be shaped by studying social theory under his guidance, but it is now clear that it would have been significantly poorer without his influence. John Lie, Irene Bloemraad, and Ann Swidler helped me find my footing early on through their course assignments, conversations, and written comments. I also acknowledge helpful comments from Stephen Collier, Laurie Edelman, Heather Haveman, Christopher Kelty, Mara Loveman, Nathan Sayre, Jonathan Simon, Sameer Srivastava and Richard Walker in the context of workshops and meetings at various stages of this project.
ii Making it through graduate school is impossible without the support of one’s peers. I am grateful for all members of my cohort at Berkeley, each of whom has had a meaningful impact on my intellectual development. I am especially indebted to Tara Gonsalves, Mary Shi, Joe LaBriola, and Adam Storer. The members of our spontaneous dissertation working group have always been prepared to comment on drafts, weigh in on decisions, and provide moral support or comic relief in times of need. The quality of my dissertation project was improved (directly and indirectly) by working in the company of many other brilliant peers at Berkeley and beyond. This includes Zawadi Rucks Ahidiana-Massac, Ghaleb Attrache, Jose Aveldanes, Alex Barnard, Lindsay Bayham, Lindsay Berkowitz, Boróka Bó, Andrei Boutyline, Carmen Brick, Emily Brooks, Jonah Stuart Brundage, Jesus Camacho, Alida Cantor, Millie Chapman, Esther Yoona Cho, Naniette Coleman, Jessica Compton, Savannah Cox, Isaac Dalke, Alex DiBranco, Cyrus Dioun, Charlie Eaton, Margaret Eby, Martin Eiermann, Fidan Elcioglu, Rebecca Elliott, Michel Estefan, Aya Fabros, Jason Ferguson, Isabel García, Jeff Gordon, Anthony Gregory, Zach Griffen, Matthew Grumbach, Pat Hastings, Chris Herring, Casey Homan, Katherine Hood, Irem Inal, Andrew Jaeger, Kripa Jagannathan, Xuan Jin, Eric Giannella, David Joseph-Goteiner, Samuel Kieke, Jae Kim, Sunmin Kim, Daniel Kluttz, Michael Kowen, Tyler Leeds, Heather Mellquist Lehto, Zachary Levenson, Matty Lichtenstein, Allison Logan, Sigrid Willa Luhr, Beki McElvain, Nallely Mejia, Michael Menefee, Santiago Molina, Meghna Mukherjee, Nataliya Nedzhvetskaya, Kristen Nelson, Onur Ozgode, Melina Packer, Sarah Payne, Michelle Phillips, Robert Pickett, Mark Quinn, Sayd Randle, Chris Rea, Jenny Rempel, Alex Roehrkasse, Maria- Fátima Santos, Josh Seim, Alicia Sheares, Benjamin Shestakofsky, Krista Schnell, David Showalter, Fabiana Silva, Shad Small, Maria Smith, Miranda Smith, Jonathan Smucker, Shelly Steward, Matthew Stimpson, Garrett Strain, Phung Su, Fithawee Tzeggai, Paula Uniacke, Desirée Valadares, Byron Villacis, Skyler Wang, Rachel Wetts, Reid Whitaker, Uğur Yıldırım and Yueran Zhang. I was able to effectively begin working on my dissertation project during my first year at Berkeley because of the foundation laid during the two prior years I spent at the Department of Political Science at the University of California, San Diego. I cannot overstate how much Tracy B. Strong, Harvey Goldman, Richard Biernacki, and the late Marcel Hénaff contributed to my intellectual development during this critical time. Although I would leave that doctoral program for another, I remain proud to claim membership in our only half-ironically named “Best Cohort Ever” (with apologies to my Berkeley cohort). Among the many great byproducts of that experience are enduring friendships with cohortmates Debbi Seligsohn, Dotan Haim, Kelly Matush, Michael Davidson, Nazita Lajevardi, Sean Morgan, and Ike Sharpless. At UCSD I had the benefit of learning from many others including Kyle Haines, Aaron Cotkin, John LeJeune, Scott Guenther, Sara Guenther, Alex Hughes, Jordan Haug, Hans Hubbard, Nicole Bonoff, Tito Brige de Carvalho, and Rumman Chowdhury, among many others. Perhaps the most important intellectual outgrowth of my time at UCSD was the research group, “Politics, Ethics, Ontology,” which included Razvan Amironesei, Ike Sharpless, and Jacob Hellman. My dissertation project would not exist in anything like its current form were it not for this forum, in which I continued to participate for years after leaving UCSD. Prior to my graduate studies, I was fortunate to develop close relationships with two professors at Portland State University who inspired me to apply for doctoral programs, and wrote letters of recommendation on my behalf. Robin Hahnel was my mentor in the Department of Economics. Reading Karl Polanyi in his course might have unwittingly made me a sociologist. His approach to radical political economy opened my political imagination and helped me
iii sharpen my analytical faculties. Craig Carr in the Department of Political Science introduced me to political theory. I can still feel the excitement of his seminars. In important ways, this dissertation responds to questions I first began to formulate under his mentorship. When writing this dissertation, I often relied on the expertise of academics working in the Sacramento-San Joaquin Delta. The project was enriched by the insights of dozens, if not hundreds of people who I listened to at conferences and workshops, spoke with informally, corresponded with and formally interviewed, not to mention the thousands of written documents I rely on that were written by experts who have dedicated their lives to environmental policy and science. The lines between peer, collaborator, mentor, and research subject were often blurred. I am especially thankful to Alejo Kraus-Polk, Peter Moyle, Jon Rosenfield, Ann Holmes, Louise Conrad, Holly Doremus, Richard Norgaard, Teejay O’Rear, and Caroline Newell for generously opening doors into the worlds of science and policy in the Delta. Ben Gburek provided excellent research assistance during the collection of the social media data analyzed in chapter three. The staff in Berkeley’s Department of Sociology, in particular Catherine Norton and Tamar Young, offered indispensable practical and moral support. In addition from my formal coursework, I benefited from methodological training at the Institute for Qualitative and Multi-Method Research at Syracuse University and Berkeley’s D-Lab, as taught by Nick Adams. I learned immensely from my own students at Berkeley and UCSD, and from the instructors who I assisted. This is especially the case of Laleh Behbehanian, whose teaching style and course design are my north star. This research was supported with funding and resources provided by: the Center for the Study of Law & Society’s Berkeley Empirical Legal Studies Fellowship; the Institute of Governmental Studies’ Mike Synar Graduate Research Fellowship; the Center for Technology, Society & Policy and Algorithmic Fairness and Opacity Working Group joint fellowship; and the Sociology Department’s Leo Lowenthal Fellowship. I also benefited from active participation in: the University of California Humanities Research Institute Group, “Cybernetic Algorithms and Biomimetic Processes”; the UC Berkeley Social Science Matrix team, “Assembling Resilience”; the Center for Culture, Organizations, and Politics workshop at Berkeley; and the Genial and Ephemeral Meeting of Sociologists workshop at UC Berkeley. My spouse, Nina, has endured endless monologues about the delta smelt, not to mention moves away from friends, family, and jobs to support my scholarly pursuits. I don’t know how to repay her, but I will keep trying. Mabel, our child, has an unusual amount of knowledge about smelts for someone younger than this dissertation project, and already a sense of the precarious interconnectedness of life on this planet. She gives me hope, even as she makes finding time to write more challenging than ever. I thank my mother for taking me into the forest to smell the bark of ancient redwood trees, and my father for bringing me trout fishing with him on the banks of Big Lagoon when I was a child.
Berkeley, June 2020
iv Table of Contents Introduction ...... 1 Chapter 1: Becoming Endangered ...... 15 Chapter 2: Constructing Environmental Compliance ...... 45 Chapter 3: From the Water Wars to the Culture Wars ...... 80 Conclusion ...... 113 References ...... 120 Methodological Appendix: Interviews and Observations ...... 137
v Introduction
“There is No Drought”
In June 2016, then presidential candidate Donald Trump addressed an ecstatic crowd in Fresno, California with the claim that, “there is no drought.” “It is so ridiculous,” he continued, “where they’re taking the water and shoving it out to sea to protect a certain kind of three-inch fish ... If I win, believe me, we’re going to start opening up the water so that you can have your farmers survive” (Colvin 2016). California was of course in its fifth year of severe drought, the deepest in recent memory. But despite this clear mischaracterization, Trump’s statement was not without resonance, and not without precedent. Two years prior, although already years into that same drought, Devin Nunes, the Congressman representing many in that same audience blamed California’s water woes on a certain “stupid little fish” on the House floor (Clarke 2014). Earlier still, in 2009, Fox News anchor Sean Hannity pointed to the, “incredible suffering in this region because of a government that has put the interest of a two inch delta smelt minnow before the people of California” (Hannity 2009). The much-maligned fish in question is the delta smelt, an endangered species found only in the Sacramento-San Joaquin Delta (or as it is often referred to in California, simply “the Delta”). The San Francisco Bay is the outlet of the Delta, where water from California’s major river systems makes its way to the Pacific Ocean. The Delta, again, the delta smelt’s sole habitat, is both the largest estuary in the western hemisphere and the source of water for more than 29 million people and 3 million acres of irrigated farmland. The United States’ most productive agricultural region—which grosses some $50 billion dollars each year—and the state’s southern metropolises, including Los Angeles, could not possibly exist in anything like their current form if it weren’t for reengineering the Delta to for productive purposes (Water Education Foundation 2020; Maven 2013). The delta smelt is listed under the Endangered Species Act (ESA), arguably the most powerful environmental law in the United States. The ESA is so powerful because it operates as a strict interdiction against actions that jeopardize the continued existence of biological species. Because the delta smelt only lives in close proximity to the pumps in the Delta that irrigate the southern half of California, the species’ protected status has resulted in controversial curtailments of water delivered to southern California cities and even more importantly, the country’s primary agricultural hub, the southern Central Valley (Alagona 2013). Roughly 80% of water used in California, after all, is agricultural (Public Policy Institute of California 2019). Not since the spotted owl controversy in the 1980s and 1990s has an American endangered species ignited such political passion. In all corners of California, and frequently on the national political stage, the delta smelt has become a stand-in for broader conflicts over the rightful relationship between humans and water, and nature more generally. Thus, the delta smelt may appear as a proxy battle for a distributional conflict between resource users and environmental advocates. Below, I argue that this characterization is insufficient. Far from being a mere conflict between interested actors, the contemporary controversy over the delta smelt provides a strategic window into a problem at the heart of contemporary society’s relationship with nature. As I will show, the conflict emerged via sequential clashes among social domains which share jurisdiction over the nonhuman environment, yet see “nature” in different ways.
1 The way this peculiar object became the protagonist of my dissertation would foreshadow the project’s analytical stakes. Much like the actors in the story I tell below, rather than simply “selecting” the case, I became ensnared in it. I came to graduate school with vague intuitions about an interest in nature as a social and political category. Only after being nudged by my academic advisor to temporarily set aside grand abstractions and attach myself to a concrete phenomenon did things start to congeal. At the onset of this process, California was at the depths of that same extended drought that Donald Trump denied by mobilized the delta smelt. Having grown up in the state’s wettest corner, I hadn’t considered water as a topic for intellectual reflection. It was too obvious a fact of life to merit explanation. That was until I moved to San Diego, a city of nearly one and a half million people that owes its habitability to a network of aqueducts, pipes and pumps that import water from hundreds of miles away. In that environment, it is impossible to deny that relations to water are political. Moving again, this time northbound to Berkeley, took me closer to the source of the water that made much of southern California’s existence and continued growth possible. And when I finally began to search in earnest for a way to concretize my theoretical intuitions, I continued to be drawn upstream. The San Francisco Bay, which can easily be viewed from UC Berkeley’s campus on a clear day, is the end point of the Sacramento and San Joaquin river systems. These systems converge to deliver “almost half of California's freshwater supply, collecting and concentrating rainfall and snowmelt from the Sierra Nevada and funneling it towards the San Francisco Bay” (Green 2012). Just east of the Bay lies the Delta (scientists and manager increasingly refer to the two as the “Bay-Delta” to emphasize the oneness of the system). Here where the water is relatively fresh, a significant portion is captured for human uses via a network of hundreds of miles of aqueducts managed by the state and federal governments. The gargantuan pumps in the Delta that extract this water so that it can be used by farms and cities are a critical chokepoint, especially in times of drought. When less water enters the system via snowpack in the mountains and rain is scarce (a condition that is becoming the new normal under climate change), Delta water is saltier, limiting the amount that can be exported. Environmental regulations, such as the ESA protections of the delta smelt which further limit pumping in order to save the species from being entrained or otherwise disrupted, add insult to injury for those relying on Delta water (Lakoff 2016b). Having committed to focusing on the social dimensions of water scarcity in California, I read everything I could find in the popular media about the drought. No matter where I looked, I couldn’t get away from a single, bothersome entity: the delta smelt. Farmers blamed it for their inability to irrigate their fields. Environmentalists and scientists warned of its impending extinction, which would be the first among ESA-listed fish to suffer that fate. Further, as an “indicator species,” its decline is said to portend a broader ecological collapse with dire consequences for humans and nature alike (Lakoff 2016a; Alagona 2013). Politicians, from the local level all the way up to the presidency, mobilized it in pursuit of their electoral interests. The more I read, the clearer it became that I too was stuck with the delta smelt. Being a historically inclined sociologist, I wasn’t satisfied with understanding the present- day conflict as a ready-made phenomenon. I wanted to understand the origins of the contemporary fixation on the delta smelt. Why was so much attention centered on a three-inch fish, especially when the problems associated with water in California were so vast and complex? This took me beyond media accounts to legal and administrative documents, and scientific reports. My genealogical analysis seemed to reach its terminus in the first taxonomic classification of the species in 1963 (McAllister 1963). Yet on a closer look, it became clear that
2 the study that established the delta smelt as a unique identifiable entity potentially worthy of protection, was made possible by the very extractive infrastructure most associated with the species’ subsequent decline, namely, the pumps in the Delta that convey water to the southern half of California (Scoville 2019). As I followed the fish from its emergence as a knowable entity to the present, moving beyond a purely archival approach to incorporate ethnographic observations, interviews, and the systematic analysis of media data, I learned how it successively became invested, not only as a scientific object, but also as a legal and political one. At each stage, actors in one social domain, by objectifying the delta smelt according to the norms of their own jurisdiction, unwittingly implicated others outside of it. Building extractive infrastructure resulted in the proliferation of scientific knowledge about the natural systems it disrupted. That scientific research would be enrolled into environmental law and policy, with the two domains increasingly clashing over the very meaning of nature. And finally legal interventions devised to protect the delta smelt from extinction spilled over into the public sphere and electoral politics, lending intelligibility to Trump’s claim, “there is no drought.” Having been told by some well-meaning interlocutors that the project would be seen as gauche in the discipline of sociology, I initially resisted writing an entire dissertation on a three- inch fish. Indeed, even in the small and subaltern scholarly world of “animals and society,” fish are marginal. Birds, on the other hand, dominate (Cherry 2019; Bargheer 2018; Angelo 2013; Jerolmack 2013). This outsized attention owes in part to the specific characteristics of birds. “What makes bird watching such a good game,” explains Stefan Bargheer (2018:7), “has to do with birds’ material, that is, their biological characteristics. It is the fact that birds can fly, are distributed unevenly in space, and are available in fairly high yet manageable numbers.” In turn, the unique social investment in birds makes for an opportune site of sociological analysis. In a different way, however, the concrete characteristics of the delta smelt portend both its social and analytical significance. Fish lurk beneath the surface, often only becoming fully visible when caught or disturbed. Humans, being the acquisitive terrestrial creatures we are, come to know aquatic environments through the processes by which they are transformed to satisfy ourselves. For this reason, measures designed to protect fish tend to obstruct the means of satisfying our own desires. Further, the means they obstruct are often those that brought the fish and their environments to our attention in the first place. This story is thus full of ironies. Beyond simply being driven to near-extinction by California’s water infrastructure, the delta smelt as an object of knowledge was produced by that very infrastructural intervention in the first place. And as I will show below, rather than a simple effect of constituencies pursuing their interests, the controversy over the delta smelt also significantly expanded the very constituency that claims to have an interest in California water politics at all. Yet, underneath these ironies is a more fundamental tension at the heart of the very idea of “nature” in modern society. The tension is this: we all inhabit one nonhuman environment, but modern life is predicated on the coexistence of many different and often contradictory ways of rendering that nonhuman environment intelligible to us. Put differently, we occupy a single material world, but our access to that world is mediated through distinct social domains that objectify it in different ways, and often clash with each other. This intuition, which I develop in greater detail below, grounds the unifying analytical contribution of this dissertation. The framework that I propose provides a way of understanding environmental conflicts that emerge from interventions into the nonhuman
3 environment, then cascade throughout society, given multiple social domains’ implications in the same external environment. The case of the delta smelt serves as what Arlie Hochschild (2016) calls a “keyhole issue,” which allows one to peer into a much broader set of social and environmental problems that are too complex and diffused to view at once in their totality. In this way, an in-depth case study of the delta smelt provides more general insights into why broad trends in the direction of environmental decline and instability have led, not to coordination among a set of mutually agreed upon solutions, but to widespread disagreement over the meaning of nature. It tells us why the same underlying environmental trends have simultaneously given resonance to scientists’ warnings about the Delta ecosystem’s impending collapse, and a politician’s denial of a drought. My hope is that in the story of the delta smelt, one can unearth lessons for understanding and intervening in the broader politics of climate change.
Nature in Modernity
According to a well-rehearsed tale, the modern relationship with nature is “disenchanted.” The story goes something like this. We used to see nature as inherently meaningful and sacred. Now we don’t. Instead, nature is now an object of calculation, control, and ultimately, domination. For Max Weber, the disenchantment of nature is part and parcel of “rationalization,” understood as the “knowledge or conviction that if only we wished to understand [the conditions under which we live] we could do so at any time. It means that in principle, then, we are not ruled by mysterious, unpredictable forces, but that, on the contrary, we can in principle control everything by means of calculation” (Weber 2004:12-13). In the mid-20th century, Frankfurt School critical theorists appropriated Weber’s argument in a Marxist frame of analysis. This view can be summarized in Theodor Adorno and Max Horkheimer’s (1997:2) claim that “[w]hat human beings seek to learn from nature is how to use it to dominate wholly both it and human beings.” They understand this desire to dominate nature in terms of instrumental rationality, which focuses exclusively on “the best means to fulfill pre- existing ends, without reflecting on the worth of these ends” (Stone, 2005:287). Reason becomes a totalizing and unquenchable form of domination that remakes the natural environment and ourselves, informing “an increasingly mechanistic and mathematized picture of nature, because this picture facilitates prediction and therefore control” (ibid:288). Adorno and Horkheimer’s conceptual apparatus has been influential in the study of environmental politics. For example, Donald Worster (1985) mobilized their theory in his analysis of water in the American West. Worster argues that all modes of water control have their “own arrangement of power.” In the capitalist mode of water control, workers are exploited in order to “extract from every river whatever cash it can produce.” In this context, instrumental reason is personified in the state hydraulic engineer, who tells us “how the dominating is to be done” (Worster, 1985:31-32, 51-57). Marxists are not alone in emphasizing the relationship between modernity and nature’s narrow objectification for calculability and control. James Scott (1999) argues that states render nature legible through “simplifications,” reducing complex systems and relations to “natural resources” amenable to control pursuant to “high modernist” ends. For Scott, such simplifications are often inherently unsustainable and doomed to fail. By virtue of being products of “tunnel vision,” they clash with or outstrip the complexity of the actual ecological systems that they index.
4
From Disenchantment to Differentiation
These accounts of the disenchantment of nature highlight one important dimension of Weber’s analysis of rationalization at the expense of another. For Weber, a second defining feature of rationalization in modernity is the proliferation of many distinct “value spheres,” in which instrumental action is oriented toward particular substantive values. According to this view, modernity does not merely involve a narrowing of vision. It involves a multiplication of visions, what later social theorists would refer to as “differentiation.” The analysis of differentiation centers on how modern society makes nature available to us in distinct ways that are irreducible to each other. These different value spheres, Weber argued, “stand in irreconcilable conflict” because there is no universal method for evaluating the relative value of values themselves (Weber 1958:147-153). Weber’s account is indebted to Friedrich Nietzsche’s (1974) provocation that “God is dead.” Nietzsche’s point was that the modern condition has deposed unified systems of meaning and value. Weber (1958:147-153) associated this condition with the inauguration of a modern “polytheism” organized around “warring gods,” rather than a single source of authority. A number of subsequent social theorists developed this point further.1 For instance, differentiation is a central conceptual pillar for systems theorists. For Talcott Parsons (1964: 342), “structural differentiation” is “central to the development of industrial societies.” He understood this phenomenon as a type of social reorganization that involves emancipating facilities from ascriptive ties to new “differentiated units” (Parsons 1970). Niklas Luhmann (1998) elaborated Parsons’ argument and went beyond it. Like Parsons, he argued that “social differentiation” is the defining feature of the modern condition. Unlike Parsons, who viewed subsystems as operationally open and hierarchically organized, Luhmann conceptualized differentiation in terms of a proliferation of autopoietic and operationally closed social subsystems without a hierarchical structure. A second tradition within social theory that associates modernity with differentiation is field theory. Pierre Bourdieu argued that relations of domination in “undifferentiated” (i.e. pre- modern) societies are reproduced via direct interpersonal interactions, a point he developed most vividly in his analysis of the Kabyle. For Bourdieu (1977:184), modern differentiated societies are defined by the existence of numerous “relatively autonomous fields, functioning in accordance with rigorous mechanisms capable of imposing their necessity on the agents.” Whereas Bourdieu theorized fields as relatively autonomous or standing in relations of “structural homology” to one another (Bourdieu 1984), other field theorists have placed more emphasis on the interrelations among fields. Like Bourdieu, Neil Fligstein and Doug McAdam (2012) associate the proliferation of fields (in their parlance, “strategic action fields”) with modernization. However, they argue that fields are linked to each other in ways that enable novel connections among social actors that would otherwise not have the basis for influencing one another. A consequence is that connections among fields allow for the effects of activities in one physical location to have impacts elsewhere, irrespective of geographic proximity.2
1 Often in conversation with sociologists and social theorists, philosophers and political theorists also developed this problem under the moniker of “value pluralism” (e.g. Berlin 2002; Galston 1999; Walzer 2008). 2 Systems and field theories are not the only approaches to develop the implications of differentiation in modern society, but they are arguably the most explicit about this connection. Andrew Abbott’s (1988) ecological approach, and Howard Becker’s (1982) theorization of “worlds” are further examples that an exhaustive analysis of the career of “differentiation” in contemporary social theory would include. 5
Differentiation and Nature
Contemporary theories of differentiation have tended to focus on how our complex reality is socially constructed. They emphasize what John Searle (1995) calls “social objects,” which owe their existence to collective intentionality, unmoored from the physical, nonhuman environment. Yet the study of contemporary environmental politics in differentiated society undoubtedly requires conceptual vocabulary for understanding the relationship between the social world and the nonhuman environment. Indeed, Weber’s analysis of modernity placed society’s relationship with nature front and center. As we have seen, however, contemporary applications of his analysis of rationalization to environmental politics have tended to focus on the disenchantment of nature, rather than the condition of differentiation. Culturalist approaches to environmental politics suggest one way of incorporating the nonhuman environment into analyses of differentiated society. The analytical strategy here is to treat “nature” as a cultural category. The central problem for culturalists is how different social groups or institutions see, make sense of, or value nature (Bell 1994; Farrell 2015; Espeland 1998). A culturalist interpretation of the modern differentiated condition’s relation to the environment is one in which many culturally constructed “natures” coexist, interact, and sometimes clash with each other. A limitation of the culturalist perspective is that by collapsing nature into culture, it treats nature as a product of what people think it is. In other words, because it postulates that “nature” is in the eye of the beholder, the approach does not provide conceptual resources for making sense of how cultural conceptions of nature relate to the actually existing nonhuman environment itself. In response, some analysts have gone as far as to argue that traditional sociological accounts are fatally flawed, and must be replaced with a new approach that takes nonhuman agency seriously. Along these lines, actor-network theorists, and in particular Bruno Latour, have argued that sociology’s blindness to the nonhuman world suggests that we should do away with the concepts of “nature” and “society” altogether. Rather than following the culturalists in reducing nature to a socio-cultural construction, actor-network theorists claim that we should imbue nonhuman “actants” with causal agency just like human actors (Latour 2005; see also, e.g., Callon 1984 and Law 2009). The provocations of actor-network theorists point to a genuine deficiency in culturalist approaches to the question of nature. However, these criticisms go too far when they assert that accounting for the agency of nonhumans requires a wholesale jettisoning of the traditional sociological toolkit. The trouble with their proposed alternative is that by treating humans and nonhumans “symmetrically” (Latour 2005), they rob the analyst of the distinction between cultural conceptions of nature and the nonhuman world itself, devolving into direct realistic empiricism of the things themselves. By claiming to observe the agency of nonhumans unmediated by cultural categories, actor-network theorists must either deny the condition of differentiation, or treat it as an emergent property of an observable process. If Weber’s diagnosis of modernity is to have any bearing, the analyst must maintain a distinction between the sense- making that occurs within various domains of social action, and the concrete material world itself that we moderns increasingly access through those domains alone.3
3 David Bloor (1999) and Harry Collins and Steve Yearley (1992) make relevant critiques of actor-network theorists’ claims to treat humans and nonhumans symmetrically. 6
The Intervention Cascade
I propose a framework that brings together the insights of culturalist approaches and theories that imbue nonhumans with causal agency to understand how claims about the natural environment take shape and gain social resonance across social domains. This proposal implies reconciling two seemingly competing claims. First, in line with Weber’s original concern with social differentiation, “nature” is specified in many different and often irreconcilable ways in modern society. The second claim is that all of these different ways of specifying nature are implicated in one, actually existing nonhuman environment. This second claim supposes that there is a physical nonhuman environment independent of our cultural conceptions of it. Further, contrary to the temptation to conflate differentiation with ontological relativism, I also assume that this nonhuman environment is singular.4 However, in a modern differentiated society, our experience of that nonhuman environment is increasingly mediated by myriad social domains that render “nature” intelligible and meaningful in different ways. In other words, we tend to relate to the nonhuman environment through various “visions of nature,” to borrow a term from Justin Farrell (2015), immanent in social domains such as science, law and politics. While the nonhuman environment is not differentiated-in-itself, various visions of nature light up different aspects of the nonhuman environment, and privilege different normative ends for how we should engage with it. This is how it is possible for the same river basin to simultaneously be a stock of useful resources, a watershed and ecosystem, a complex of legal rights and duties, and a symbol of partisan distinction or spiritual belonging. I understand social domains to be semi-autonomous social spaces where people seek to enact order, and in the present context, on the nonhuman environment. The process of social differentiation identified by Weber and developed by subsequent social theorists is defined by the proliferation of social domains. Within any social domain, actors may generally agree on a dominant vision of nature, or struggle over competing visions (cf. Farrell 2015; Espeland 1998). I use the generic term “domain” rather than a more specific term such as “field” or “subsystem” to emphasize that my overarching analytical contribution is not wedded to a particular theoretical specification of differentiation. Rather, my theoretical interest is in the implications of the fact of social differentiation as such—widely understood within social theory to be an important constitutive element of modernity—for the study of environmental politics.5
4 Philippe Descola (2013) has proposed that “naturalism” is one of four ontologies operative in humans’ relations to nonhumans. However, all such ontologies rest on the distinction between humans and nonhumans. My premise that there is a singular nonhuman environment independent of our cultural constructions does not contradict even Descola’s account, which goes further to decenter the nature/culture dichotomy than most sociological approaches to the environment, and is arguably more global in scope than Latour’s. However, the applicability of my proposal lies within the “naturalism” that Descola associates mainly with the West. I do not claim to have constructed a framework equally applicable to animist, totemist, or analogist ways of ordering human-nonhuman relations. Rather, I have identified a phenomenon that I claim is operative in modern, differentiated (although not necessarily Western) societies that understand the nonhuman environment as some specification of “nature.” 5 As I suggest above, my argument is consistent with at least two major social theories which developed Weber’s differentiation thesis: field theory and systems theory. Despite important differences, both theoretical traditions rest on the assumption that social domains are semi-autonomous sub-structures of society. Among varieties of field theory, my approach is most compatible with Fligstein and McAdam’s (2012) formulation. This is because they do not make assumptions about the priority of particular fields in relation to each other, or about the nature of fields’ relations to each other another, while also being particularly focused on the dynamic relationships 7 So far my proposal is consistent with a culturalist interpretation of a differentiated society. Yet it goes beyond the claim that there are many visions of the same nonhuman environment. An additional premise of this proposal is that we do not “view” nature passively, as culturalist accounts have a tendency to imply. We intervene. Emphasizing “interventions” (Eyal and Levy 2013; Eyal and Buchholz 2010) takes the challenge of actor-network theorists seriously, going beyond the analysis of how culture mediates our understandings of the natural environment, to understanding the effects of acting on culturally configured visions of nature in the world.6 It also goes beyond the dominant sociological accounts of differentiation, which emphasize actions that are circumscribed within domains at the expense of those that extend outward into the material environment. Other theorists working in similar analytical terrain have been drawn to synthesize sociological accounts of differentiation with actor-network theory. Gil Eyal, for instance, claims that accounting for “interstitial domains” (Eyal and Buchholz 2010) or “spaces between fields” requires negotiating a “truce” between Bourdieu and Latour (Eyal 2012).7 While Eyal is interested in the creative or jurisdictional work that happens in these spaces, my foremost interest is in the physical things that lie between social domains. To the extent that society is differentiated, interventions into the nonhuman environment will tend to originate in semi-autonomous social domains. Yet, if interventions are directed at the nonhuman environment, their effects will tend to be felt beyond the boundaries of individual social domains. This can take at least two forms. First are material transformations. When we intervene into the nonhuman environment, we often directly transform it physically. For example, in attempts to qualify nature as a useful resource, people have dammed rivers, fundamentally altering their shape and flow. Second, our interventions may simply bring new aspects of the nonhuman environment to our attention. For example, deploying a new scientific instrument or method might make an existing kind of organism visible or describable in a new way with potential legal or political implications. Because many social domains are implicated in the same nonhuman environment, the effects of an intervention which originates in one domain may have consequences in others. Michel Callon’s (1998a) concept of an “overflow” is useful for understanding this phenomenon. While a vision of nature immanent in one social domain may allow actors to frame an intervention into the nonhuman environment as a neatly enclosed operation, links between the nonhuman environment and other social domains will increase the likelihood that the effects of an intervention will overflow into them. Overflows may in turn provoke subsequent interventions
among fields. Among systems theorists, my approach is most compatible with Luhmann’s (1998) approach because he theorizes subsystems as operationally closed (his way of conceptualizing their semi-autonomous character) and organized in according to a nonhierarchical structure. However, my argument does not take the form of a field analysis (in the sense of accounting for struggles for position). Nor does it take the form of a systems analysis (with a focus on self- and external-reference). Rather than engaging in debates about the ultimate nature of social structure, I emphasize a problem that cuts across many such accounts: the dynamic interrelations among social domains and the nonhuman environment. 6 The concept of “intervention” bears a family resemblance to “performative” acts (Callon 1998b; MacKenzie 2008). It is a broader concept, however, because interventions need not aim, much less succeed in remaking the world in the image of a theory. However, to the extent that they are grounded in a vision of how the world does or ought to operate, and that they have some effect on the world, the concept is closest to what Donald MacKenzie (2008) calls “effective performativity.” 7 Eyal likely provides the most sustained theoretical excursus of this problem, but economic sociology is a fertile ground for combining the insights of cultural or field-theoretic approaches and actor-network theory (MacKenzie 2008; Fourcade 2007; Fourcade 2011). 8 from affected domains in response. In the aggregate, overflows are inevitable because any particular vision of nature can never completely accounts for all facets of the nonhuman environment. However, rather than focusing on failures of monolithic “state simplifications” to account for the complexity of ecological systems (Scott 1999), my focus is on how interventions into the nonhuman environment and subsequent overflows mediate the relationships among various visions of nature immanent in myriad social domains. I call the process of sequential interventions and overflows among social domains the “intervention cascade.” The intervention cascade rests on my claim that in a differentiated society, many social domains share jurisdiction over the same nonhuman environment, yet they “see” nature in different, and often contradictory ways. The intervention cascade is a consequence of this condition. It specifically refers to the process of interventions from one domain overflowing and triggering subsequent interventions from others. Figure i.1 presents a visual schematic of this dynamic. For simplicity, it shows overflows from each intervention implicating one subsequent domain. However, the specific path of interventions and overflows in any particular case is an empirical question. The dotted lines in Figure i.1 connecting the social domains acknowledges that they may be linked directly in ways that are not mediated by the nonhuman environment. In the case of the delta smelt, such links are particularly important for understanding the interface between science and law, analyzed in chapter two of this dissertation.
Figure i.1: The Intervention Cascade
9 The “cascade” is a common notion used to conceptualize environmental crises and disasters across disciplines (e.g. Wallace-Wells 2019; Oreskes and Stern 2019; Little 2002). While the intervention cascade builds on the same “domino effect” imagery as its counterparts in the biophysical science and engineering, it is important to point out that unlike these constructions, my formulation (including the concepts of “intervention” and “overflow”) does not rest on a particular conceptualization of the nonhuman environment (beyond its singular existence, and its potential reactivity to human interventions). My uncommitted stance to the nature of the nonhuman environment itself is required by my premise that observations of the nonhuman environment (including those of the analyst) are mediated through social domains. My analysis is, in Luhmann’s (1998) terms, a second order observation of those observations, not a first order observation of the nonhuman environment. In this way, my position can be distinguished from those who have attempted to integrate the study of social fields and natural systems (Olsson and Jerneck 2018) and from Latour’s (2005) claim to treat humans and nonhumans “symmetrically.” These alternatives, by claiming to account for the nonhuman environment directly, slide into realist observation of nature (Bloor 1999; Collins and Yearly 1992). Because scientific disciplines offer the dominant vocabulary for natural knowledge, claims of direct observation tend to privilege the contemporary categories of natural science. Alternatively, by tracing the intervention cascade, I follow how the delta smelt became a distinct sort of problem for each subsequent social domain (including science) as a consequence of interventions originating in others. In the case at hand, tracing the intervention cascade includes analyzing how the delta smelt emerged as a scientific object in the first place, rather than presupposing contemporary scientific understandings of the species. I make no claim to a “symmetrical” treatment of humans and fish. If there is symmetry in my account, it is among social domains, which owe many of their mutual entanglements to being implicated in the same nonhuman environment.
Beyond the Water Wars
To understand the implications of my proposal, it is helpful to compare it to the most common way of narrating water politics in California. According to the dominant approach, the case of the delta smelt is the latest episode in California’s so-called “water wars.” This perspective has a long history, as encapsulated in the widely repeated dicta, “whiskey is for drinking, and water is for fighting,” and “water flows uphill towards money.” It was artfully brought to life by Roman Polanski’s 1974 film “Chinatown,” in which a private investigator confronts the corrupt politics behind the city of Los Angeles’s acquisition of water resources. Whether the problem is ultimately located in terms of greed, corruption, or instrumental rationality, the water wars framing poses the problem in terms of clashes between various interested parties. Perhaps the most influential scholarly rendition of the water wars thesis is Worster’s (1985) Rivers of Empire. For Worster, the problem is an insatiable drive to dominate nature embodied through an alliance of capital, state agencies, and engineering expertise. His analysis of California as a “modern hydraulic society” predicts ecological and social catastrophe in the absence of a wholesale rearrangement of power. Subsequent accounts have criticized Worster’s formulation as reductionist and provided different pictures of how struggles for water can unfold. Wendy Espeland (1998), for instance, shows how groups internal to state bureaucracies (following the passage of laws like the National Environmental Policy Act), and outside of them (such as environmental and indigenous social movements) clash, not simply over the distribution
10 of water, but over how nature ought to be valued in the first place. Nonetheless this work assents to the premise that the story of water in the American West is ultimately about confrontations between interested parties. Indeed, there is much to be said for the water wars framing to understanding the historical relationship between Californians and water. In 20th century California, struggles over the distribution of water resources and clashes over the rightful relationship between humans and nature were often of a piece (Reisner 1993; Arax 2019). Actors at each of these poles tell an evocative story. On one side were advocates of developing water resources. Among the clearest and most prominent voices of this vision was Floyd Dominy, United States Bureau of Reclamation Commissioner from 1959-69, some of its most productive dam-building years. In his words, building dams implied “putting water to work for man.” “Let’s use our environment,” he argued. “Nature changes the environment every day of our lives--why shouldn’t we change it?” (McPhee 1971:172-173). On the other side were environmental preservationists, seeking to hold back the tide of development in the name of preserving wilderness (cf. Cronon 1996). David Brower, Sierra Club Executive Director from 1952-69 was Dominy’s staunchest opponent, and a moral leader for the environmental movement. “I hate all dams, large and small,” Brower explained. “If you are against a dam, you are for a river” (McPhee 1971:159). Yet, while the development of natural resources and environmental protection do tend to stand in clear opposition, operating with the water wars lens alone begs a more fundamental set of questions crucial to understanding environmental politics in a modern differentiated society. Whereas the water wars framing takes constituencies, interests, and their objects of struggle in environmental conflicts as analytical starting points, the intervention cascade draws our attention to how disparate ways of viewing and valuing nature came to become mutually implicated over time. Understanding the significance of the present day controversy about the delta smelt thus requires more than an analysis of a constellation of interests as they happen to make themselves visible to us now, be they farmers, environmentalists, politicians, or agency heads. Rather, it requires attention to the conditions of possibility for claims about the nonhuman environment, and how environmental objects become imbued with various forms of social significance over time to make the present-day controversy possible. Viewing the delta smelt through the lens of the water wars would place defenders of the species outside of the world of extractive infrastructure, pushing against its imperatives. However, I show that on the contrary, rather than simply being driven to near-extinction by California’s water infrastructure, the delta smelt as an object of knowledge was produced by that very infrastructural intervention in the first place. It was only by pursuing the extractive the imperatives of what Worster (1985) called “modern hydraulic society,” that the delta smelt emerged in a way that could cause trouble for those interested in pursuing those imperatives. Further, whereas the water wars framing would suggest that the contemporary controversy over the delta smelt is a simple effect of constituencies pursuing their interests vis-à-vis their pre- existing relationships to water, I show how the controversy is also an important cause of the very constituencies that claim to have an interest in California water politics at all. Far from being a straightforward play of interests, the political investment of the delta smelt goes far beyond those directly impacted by its legal protection on either side. Rather, an overflow from the domain of law into a polarized public sphere enrolled California’s water wars into a nationally significant culture war.
11 Analytical Approach and Evidence
In this dissertation, I analyze how the delta smelt became a problem. The specificity of this analysis lies in the seemingly innocuous phrase, “became a problem.” Here, I do not refer to the classic definition of “social problems,” as projections of collective sentiments which link societal attention to objective conditions (cf. Hilgartner and Bosk 1988; Blumer 1971). Rather, I use the case to explicate the historical conditions of possibility (Foucault 1984) of how our relation to nature became posed in a particular way. Thus, my analysis resembles what Colin Koopman (2018) calls a “genealogical problematization,” yet with an emphasis, not simply on how we became the kinds of persons we are (as was the case of Michel Foucault’s genealogies), but also on how we became implicated in particular relations to our nonhuman environment. However, given that I am interested specifically in the consequences of social differentiation for the study of environmental politics, this analysis is not merely diachronic. I follow the fish as it became a problem, one social domain at a time. This is not an arbitrary imposition of my theoretical perspective, but one specification of Foucault’s (1984) and Koopman’s (2013; 2018) emphasis on elaborating conditions of possibility as a form of critique. It rests on the observation that today, many if not most environmental political claims are conditioned on antecedent claims in the domain of law. This is especially the case among endangered species conflicts like the delta smelt. Legal claims about the environment are in turn nearly always conditioned on scientific knowledge. The Endangered Species Act is explicit about this point. And as decades of research in science and technology studies has shown, science never operates in a vacuum. Accordingly, I trace how the delta smelt successively emerged as a scientific, legal, and political problem, and how each domain in which it became implicated interacted with others throughout the process.8 The form of analysis here owes in part to the structure of the problem at hand. Callon elaborates a different form of problematization in his analysis of carbon markets that is also predicated on differentiation, but takes a different form. For Callon (2009:543), problematization is a “gradual process of fragmentation and division of issues that evolves into the joint formulation of a set of different problems which in a sense, at least partially, are a substitute for the initial issue.” Climate change, as a mammoth and multifaceted issue, has been fragmented into various problems (e.g. economic, technological, scientific). While Callon’s account and my own share the emphasis on differentiation, they draw different lessons from it. Callon’s approach shows how large amorphous issues like climate change become articulated into distinct problems in numerous domains. My analysis shows how novel problems can emerge at the intersection of distinct social domains that are implicated in the same nonhuman environment. To do so, I rely on a wide range evidence. First are documents. This includes hundreds of government and organizational documents, thousands of publications in science and law journals, grey literature, Congressional records, and museum catalogues. Second are observations. This included approximately 160 hours of direct in-person observations between 2015 and 2020. I attended numerous conferences and symposia on Delta science and policy issues, toured water facilities, visited laboratories, and volunteered to assist in a scientific fish sampling expedition, among other trips to relevant sites in and around the Delta. I followed up by
8 An additional difference between my analytical approach and Foucault’s genealogies is that I do not shy away from the language of causality. The intervention cascade is thus at a similar theoretical register as Ian Hacking’s (2002) “historical ontology,” which is grounded in Foucault’s genealogical approach, yet is also compatible with the insights of institutional explanations of social change and stability. Chapter 1 develops this point in greater detail. 12 interviewing, conversing with, and corresponding with experts including scientists, government officials, legal professionals and advocates. This included 22 interviews conducted in-person or on the phone, and many more informal conversations throughout the course of my observational research. I supplement these contemporary perspectives with recorded oral histories from important figures in California water politics available in university repositories, and transcripts from the Congressional Record and White House briefings. Finally, to track scientific and popular interest in the topic, I built datasets of over 3,000 news articles and nearly 14,000 Tweets mentioning the “delta smelt,” and compiled bibliometric and Google search data. In each chapter of this dissertation, I describe the specific data sources and techniques employed in greater detail. The methodological appendix at the end of this dissertation lists my interviewees and major events attended as part of my observational research.
The Structure of this Dissertation
The remainder of this dissertation is organized into three substantive chapters and a conclusion. While they form a coherent whole, each chapter was written as stand-alone article that speaks to a distinct set of scholarly conversations. Together they follow the structure of the intervention cascade. Because they were written as distinct articles which make their own scholarly interventions, the terminology is not entirely consistent across chapters, and some repetition exists in the framing of their respective core findings. A subsequent book manuscript based on this dissertation will preserve the overall structure of this dissertation, but weave the articles into a more cohesive whole. The first chapter, “Becoming Endangered,” charts the initial step of the intervention cascade in the case of the delta smelt, showing how the species became an object of knowledge. It begins with an intervention from the domain of extractive infrastructure and public works. Reengineering California’s river systems in the mid-20th century qualified nature as a useful resource and empowered a new set of actors reliant on that resource. But this infrastructural intervention did something else as well. It overflowed in to conversation science, making nature visible in new ways. Crucially, it was only through the process of reengineering California’s river systems that the delta smelt came to be understood as a unique species, and one in danger of becoming extinct, in the first place. Science, of course, has little political salience on its own. Only once scientists tracking the delta smelt’s decline were able to successfully petition for the species to be listed under the ESA did the seeds of the controversy truly germinate. At that point, it became illegal to contribute to the decline of the delta smelt, a species found only in the center of California’s extractive water system. The second chapter of this dissertation, “Constructing Environmental Compliance,” traces the consequences of the overflow of science into the domain of law. It follows the shifting relationship between science and law in the form of three distinct “compliance relations.” Each successively became dominant as the delta smelt approached extinction in the wild despite the investment of billions of dollars and significant administrative and scientific resources in attempts to reconcile its continued existence with the continued pumping of water out of its habitat. The vast majority of delta smelts now live in a genetically managed captive refuge population, exacerbating tensions between the way scientists understand the objects and ends of conservation, and the mandates and limitations of the law. Scientists and policy and legal professionals collaborated to protect the delta smelt, with the aim of avoiding costly shutdowns of California’s water conveyance system. However, those
13 policies eventually failed, triggering an intervention from court system, which interrupted water conveyance to farms and cities in the southern half of the state. This legal intervention overflowed into the public sphere, lending broad political significance to the delta smelt in the context of a partisan culture war. At this stage, the controversy became largely disconnected from the delta smelt’s concrete impacts on water policy, and the species entered the national political stage as an avatar of cultural resentment against liberal environmentalism writ large. This is the topic of the third chapter of this dissertation, “From the Water Wars to the Culture Wars.” This dissertation concludes with general reflections on what the case of the delta smelt, and the intervention cascade as a general theoretical contribution might tell us about the future of environmental politics in an era defined by climate change and its corollaries. I suggest that the case and the proposed framework provide general insights which can help to account for the dual realities of rapid environmental change, and intense disagreement over the cultural significance of nature.
14 Chapter 1: Becoming Endangered1
Abstract
Endangered species are objects of intense scientific scrutiny and political conflict. This chapter focuses on the interplay among human-nonhuman relations, knowledge production, and the politics of endangerment. Advancing a historical ontology of endangerment, it highlights the role of transforming the nonhuman world in the coming to be of new objects of environmental knowledge. Such knowledge can provide the basis for credible claims of endangerment, facilitating mobilizations against the very human-nonhuman relations that produced it. An in- depth case study of the delta smelt, an endangered species of fish caught in the center of California’s “water wars,” shows how changes in the instrumentalization of the nonhuman environment can produce new knowledge of nature that allows actors to make claims and form coalitions that would be otherwise inconceivable. Because its sole habitat is the hub of California’s water delivery system, efforts to save the species from extinction have reduced flows to farms and cities, fomenting conflict between environmentalists and water users. This chapter demonstrates that the taxonomic classification of the delta smelt as a species and evidence of its decline arose directly from the reengineering of California’s rivers for extractive ends. Ironically, the knowledge on which environmental advocates relied was a product of the instrumental relation to nature that they sought to transform.
Introduction
Everywhere human activities seem to be endangering earth’s other inhabitants. Species threatened with extinction are objects of immense scientific scrutiny and intense political conflict. However, the relationship between the science and politics of endangerment has not inspired significant sociological reflection. In this chapter, I advance a “historical ontology of endangerment.” This proposal draws attention to the relationship between changes in human- nonhuman relations, the emergence of objects of knowledge, and how their emergence allows actors to mobilize against the very human-nonhuman relations that produced them. Rather than focusing exclusively on the destructive and utilitarian aspects of attempts to reengineer the nonhuman world, this chapter highlights the additional role that such transformations play in generating insights into what nature is, and how this natural knowledge can in turn precipitate conflicts around its endangerment. This chapter’s empirical intervention is an in-depth historical case study of the delta smelt, a tiny endangered species of fish at the center of one of the highest profile and highest stakes environmental political conflicts in the recent history of the United States. Specifically, I show how the taxonomic classification of the delta smelt as a unique species — an important condition of possibility for the contemporary environmental conflict surrounding its endangerment — arose directly from the reengineering of its habitat, and California’s hydrology more generally, for extractive ends. The case demonstrates the applicability of the chapter’s theoretical intervention, suggesting a coherent way of enrolling “nature” into the sociological study of environmental politics without uncritically adopting prevailing scientific understandings of
1 An earlier version of this article was published in Theory and Society under the title, “Hydraulic Society and a ‘Stupid Little Fish’: Toward a Historical Ontology of Endangerment” (Scoville 2019). 15 nature, erasing the distinction between humans and nonhumans, or abandoning the broad insights of institutional explanations of social change and stability. This chapter makes three broad and interrelated contributions, each of which extends an existing sociological literature into new terrain that must be traversed in order to account for the peculiarities of contemporary environmental politics. First, and most essentially, it proposes a way of conceiving of a historical ontology (Hacking 2002) of endangerment in order to analyze the relationship between knowledge production, politics, and the reengineering of the nonhuman environment. Second, by doing so, it answers the call for greater attention to “the world of things” in the study of institutions (Pinch 2008) by inquiring into the specificity of human- nonhuman relations as they relate to the transformation and inter-relations of meso-level social orders (Fligstein and McAdam 2012). And third, it brings together the study of environmental politics with the animating questions of science and technology studies, drawing our attention to “how questions of identity and difference are worked out in specific cases,” (Lynch 2013, p. 449) and how such distinctions are put to political use (Hannigan 2006). I begin by laying out the chapter’s theoretical proposal. I subsequently introduce the case and illustrate its contemporary political significance. The remainder of the chapter charts conditions and consequences of the objectification of the delta smelt leading up to the contemporary period. First, I set the stage with a radical shift in Californians’ relations to water resources and fisheries in the mid-20th century with the onset of what Worster (1992) has called “modern hydraulic society.” The three subsequent sections comprise the primary original empirical contribution of this chapter.2 They show that the first and second half of the twentieth century were characterized by radically different ways of instrumentalizing and objectifying fisheries: first as an object of commerce and natural resource conservation, and second as an object of engineering and systematic science. Subsequently I zero in on the case of the delta smelt, showing that the scientific objectification of the Sacramento-San Joaquin Delta ecosystem and the systematic collection of specimens that could be used in taxonomic studies only occurred because of the reengineering of California’s hydrology for productive ends. This objectification, I show, included the taxonomic classification of the delta smelt and sampling of its abundance and distribution. I follow up by showing how this knowledge of nonhuman nature was put to political use. The delta smelt simultaneously took on the role of an “indicator species” for a collapsing ecosystem, and a focal point of the most recent episodes of California’s “water wars.” This is the aspect of the case that has received the most scholarly attention in the social sciences so far. I argue that the significance of this knowledge mobilization is more fully apprehended when considered in the context of how the knowledge itself was produced. Specifically, the very scientific knowledge that was produced when reconfiguring the nonhuman environment for productive
2 The analysis is based on archival records, official reports and memoranda, legal documents, biographical materials, scientific articles, museum and newspaper databases, expert self-reports (22 formal expert interviews and many more informal conversations with individuals actively involved in the case), approximately 160 hours of observations at workshops, symposia, facility tours, university and public lectures, and a review of the secondary literature on modern California history, biological taxonomy, and endangered species law and politics. Observations, interviews, secondary, and journalistic sources were used primarily to triangulate findings, but the bulk of the evidence used to construct the case consists in over 300 primary documents (including administrative sources, grey literature, and published scientific articles from relevant historical periods) from governmental agencies, nonprofit organizations and associations, universities and research institutions, spanning from approximately 1900 to present. Direct quotations from self-reports have been verified with a recording. All data were collected between 2014 and 2020. Specific sources are noted throughout. 16 ends became an indispensable tool for those seeking to push back against the extractive imperatives of modern hydraulic society and the actors that it empowered. The construction of modern California’s water conveyance apparatus did not only directly reconfigure power relations between existing human constituencies; it also created the condition of possibility for new credible claims in defense of nature that would be as politically potent as they were unforeseeable.
Toward a Historical Ontology of Endangerment
Recognition of the socially destabilizing prospects of anthropogenic global climate change and its correlates — including the “sixth great extinction” (Kolbert 2014) — is becoming increasingly widespread. It is unsurprising, therefore, that attempts to elevate the role of nonhuman nature in sociology and cognate disciplines are also on the rise. Such reappraisals have accompanied a shift from viewing nonhumans as mere repositories of human meaning to being endowed with causal agency in their own right. The traditional orienting question of the study of human-nonhuman relations, “What do objects represent or symbolize?” has been displaced by “What do objects do?” (Domínguez Rubio 2016, p. 60). While this newer line of questioning, associated primarily with Actor-Network Theory (“ANT”) (cf. Latour 2005), has yielded significant insights, its applications are characterized by two major deficiencies. First, the focus on nonhuman agency has come at the cost of ignoring the role of nonhumans in the constitution of human subjectivity, and unwittingly the anthropomorphic conflation of nonhuman agency with nonhuman action (Jerolmack and Tavory 2014). Second, such accounts tend to present objects “as though they were self-evident and given, and our only task was simply to find out what they do” (Domínguez Rubio 2016, p. 60). This devolves into a direct or naive realism, which, as Bloor (1999, p. 91) points out, is itself “an employment of the very knowledge the sociologist typically aims to explain.” These deficiencies are particularly problematic for the study of environmental politics, whereby human constituencies invoke knowledge of nature as the basis of claims against others in a struggle for the determination of the future of human-nonhuman relations. Even in cases when actors disagree about the meaning of nature (Espeland 1998; Jerolmack 2008; Farrell 2015), they must draw on a common stock of knowledge in order to make credible claims. Environmental politics is increasingly mediated through “the sensory organs of science” (Beck 1992, p. 162). Accordingly, environmental sociologists have focused on how environmental problems are constructed as such by making claims, seeking scientific validation and authority, and constituting an audience (Hannigan 2006, pp. 63-78). But even this approach, premised on a division of labor between scientists who collect and analyze data and political entrepreneurs who mobilize it, begs a fundamental question: how did nature come to be understood in such a way that such claims could be made at all? The conditions under which environmental knowledge is produced are thus central to understanding how human-nonhuman relations are contested, transformed, and reproduced. Endangered species conflicts are opportune sites for addressing these issues, yet sociologists have primarily treated scientific objects as a given, using measures of biodiversity as variables in quantitative analyses (Hoffman 2004; Clausen and York 2008). Recent work in the environmental humanities has opened to an alternative approach to the topic focused on the entanglements of politics and science in relation to the “endangerment sensibility,” understood as “a complex of values, affects, and interests characterized by a particularly acute perception that
17 some organisms and things are ‘under threat’” (Vidal and Dias 2016, p. 2; see also Heise 2016). Such entanglements are particularly palpable in the United States. The Endangered Species Act is arguably the most powerful federal environmental law, allowing listed species to exert significant agency in struggles over the use and development of natural resources. This agency, however, is not a property of species as such, nor even simply of species before the law. Credible claims about endangerment rely on the shared perception that a species is in decline, and these perceptions must be supported by documented measurements showing a trend approaching extinction. Antecedent still (and even more essential) is the classification of endangered species as distinct taxonomic entities in the first place. I propose a framework for analyzing the emergence of the objects of environmental knowledge and their mobilization for political ends by extending Hacking’s (2002) concept of historical ontology — which he applies exclusively to humans — to nonhuman entities, and in particular, endangered species. Whereas Hacking is interested in humans as both the subjects and objects of their own knowledge, my focus here is the conditions and consequences of how human subjects qualify nonhuman objects of knowledge. Sociologists have long been attentive to the ways in which human identities and self-understandings are constituted via historical processes not of their own choosing. Extending historical ontology to the objects of environmental science and politics provides a bridge between this traditional concern (for which Hacking provides theoretical support) and the analysis of the historical constitution of nonhuman entities at the center of social conflicts. The term “ontology” has come to take on various meanings in the social sciences, so it is important to clarify that my use of the term has little to do with the “ontological turn” in anthropology and elsewhere (cf. Kohn 2015). Hacking’s invocation of ontology simply refers to the study of “objects in general.” The predicate, “historical” indicates that “we are concerned with the coming into being of the very possibility of some objects” (Hacking 2002, p. 2).3 The historical ontology of endangerment is thus concerned with how endangered species become objectified, and how this coming to be ‘loops back in’ to society with political consequences.4 It is also important to point out that this proposal, with its focus on the constitution of the subjects and objects of environmental knowledge and contention, involves a reevaluation of a dualism that has fallen out of favor in the social study of science and technology since the ascendance of ANT: namely, the subject-object distinction. The point is not to offer a general theory of subjectivity and objectivity, nor to slide into a naive intellectualism in which consciousness is the condition of possibility for all that exists. Instead, the distinction is necessary in order to analyze the conditions of emergence of objects of knowledge, and how their emergence reorganizes relations of subjects to themselves and others.5 Subjectivation and
3 Its scope is similar to what others have suggested as “ontography” (Lynch 2013; Domínguez Rubio 2016), however the diachronic, rather than spatial framing of historical ontology is better suited for studying the relationship between science and politics over time. 4 This concern with the causes and consequences of human knowledge of nature places my position closer to purportedly antique sociology of scientific knowledge (SSK) than ANT. However, the centrality of concrete, material, human-nonhuman relations in this proposal and its empirical illustration blunts the common criticism of SSK that it ignores the causally independent role of nonhumans. Rather than asserting that everything is an actant, the question is: under what conditions do nonhumans come to exert different sorts of agency? 5 Here I am inspired by Foucault’s (2006, p. 459) focus on the relationship between the socio-historically specific “mode[s] of ‘subjectivation’” and of objectification, the “question of determining under what conditions something can become an object for a possible knowledge.” This is consistent with Hacking’s (2002) concept of historical ontology, which was inspired by Foucault’s (1984) “historical ontology of ourselves.” 18 objectification are conceptually distinct but intricately linked in the world, not only through discursive practices, but through concrete, material relations. I am not the first to suggest that environmental politics can be an analytical domain for historical ontology, but prior interventions (Lemke 2015; Fourcade 2011) have not included precise counterparts to Hacking’s conceptual contributions tailored to environmental objects. In order to further motivate such an intervention and clarify its significance, I first point to an important insight that is present in diverse empirical analyses of the relationship between environmental politics and knowledge, which I develop theoretically below. Simply put, it is through the very process of transforming the nonhuman environment — and often even spoiling it — that we gain new insights into what nature is, and hence the ability to construct environmental problems and mobilize in response to them. Appuhn (2009) shows that meeting the engineering needs of the Venetian Republic resulted, not simply in the demand for wood and the exploitation of forests, but in the empowerment of experts who came to understand forests as threatened by this exploitation. This expertise became institutionalized in a new system for the administration of forests and an attendant philosophy of conservation. Alagona (2013, pp. 77-78) shows that in the early 20th century, the U.S. Bureau of Biological Survey did not merely measure the range and abundance of species for its own sake, but that this agenda was embedded in an aggressive program of eradicating predators deemed to be in conflict with the interests of farmers and ranchers. Aquatic environments are particularly potent sites for illustrating the dialectical relationship between remaking nature and environmental knowledge mobilized in its defense. These connections can be wholly accidental, as in the case of the cleanup of a disastrous oil spill generating groundbreaking ecological knowledge (Fourcade 2011). They can also be the effects of deliberate attempts to exert control over rivers that overflow extant hydrologic knowledge, serving as the irritant for environmental controversy, scientific discovery, and new regimes of management (Pritchard 2011; Linton 2010; see also Mukerji 2009 and Carroll 2012). In short, a body of historical and sociological research shows that credible claims of endangerment are often made possible by the fulfillment of the very engineering needs and extractive relations to nature that are understood to cause endangerment in the first place. I develop this claim in theoretical detail below, beginning with a critique and reconstruction of Hacking’s historical ontology specific to this analytical context.
Looping Effects and (Non)Human Kinds
Hacking’s application of historical ontology to humans hinges on the concept of a “looping effect,” whereby the classification of humans creates new kinds of self-understandings, behaviors, and ways of being in the world (Hacking 1995, p. 369). The metaphysical position behind this concept is “dynamic nominalism,” which grounds its concerns in the processes that connect “what comes into existence with the historical dynamics of naming and the subsequent use of name” (Hacking 2004, pp. 26, 106). However, Hacking claims that this formulation applies exclusively to “interactive kinds,” human beings endowed with agency, language, and self-awareness. For him, looping effects occur when individuals are “treated or institutionalized as of [a particular] kind, and so [experience] themselves in that way.” In contrast, the constitution of “indifferent kinds” (nonhumans) makes no difference to the classified. Nature stays put when we study it, he argues, but people generally do not (Hacking 1999, pp. 104-105, 40).
19 While he is correct to posit important analytical differences between humans and nonhumans, Hacking is wrong to divide up the world so neatly into dynamic human and static nonhuman domains (although see Hacking (2007; 1991) for nuanced, but schematic historical explorations of nonhuman classification). As he suggests, because nonhumans generally do not know they are being classified, they cannot be subject to looping effects in the same sense that humans are. However, the coming to be of new nonhuman objects frequently has real political consequences, reconfiguring not only human-nonhuman relations, but also relations between humans. This, I claim, is the sense in which human knowledge of “nature” loops back in to society. To be clear, I am not concerned here with the subjectivity or perceptual lifeworld of nonhuman animals (cf. Uexküll 2010). Instead, my focus is the dialectical relationship between: the historically, socially, and technically specific relations between humans and nonhumans; the constitution of objects of human knowledge; and relations between humans that are implicated in both. My proposal has two principal parts. The first is that changes in human-nonhuman relations facilitate new modes of objectifying the nonhuman world. Objectification here refers to the constitution of objects of human knowledge: the schemata, concepts or principles or components of classification that mediate sense experience, allowing us to make sense of the things we encounter. It is only by way of concrete human-nonhuman relations that nonhuman entities become objectified in a particular way. This does not imply that nonhumans are infinitely plastic receptacles for human signification. As proponents of ANT have rightly suggested, the nonhuman world serves as a mediator itself, “adding something to the chain of interaction or an association” (Sayes 2014, p. 138). Far from denying that material things are real prior to our knowledge of them, or that human actions transform the material world, I simply reinforce a point long demonstrated by environmental historians (Cronon 1991; Pritchard 2011) and political anthropologists (Scott 1999) — that an immense material and social infrastructure makes it possible to turn mere things into specific objects of knowledge, as bearers of recognizable properties. Below this focus is operationalized with a specific form of objectification: biological taxonomy. The second principal part of my proposal is that in the context of environmental politics, novel modes of objectifying the nonhuman world give actors new ways of making claims against others which can form the basis of new constituencies and the mobilization of resources in order to transform existing ways of co-existing with the nonhuman environment and each other. This means that new human-nonhuman relations also facilitate the constitution of collective human subjectivity.6 However, because it is well known and documented that in endangered species conflicts in general (and the delta smelt case in particular) environmental knowledge facilitates the constitution and mobilization of opposing parties (see: Alagona 2013 and Lakoff 2016a), the empirical illustration below disproportionately focuses on the less commonly studied question of how that knowledge was produced in the first place.
6 My focus is meso-level orders (Fligstein and McAdam 2012) — specifically, how scientific knowledge relates to collective interests, alliances and mobilizations — rather than the self (Jerolmack and Tavory 2014), but the two focuses are compatible. See Epstein (2007) for an excellent example of research that reconciles the Foucauldian concern with the conditions of emergence of knowledge with an analytical focus on meso-level transformation. Similarly, I aim to demonstrate that careful attention to the role of science and the nonhuman in modern society need not come with a rejection of the insights of institutional approaches to social change and stability. 20 This chapter centers on one type of human-nonhuman relation: instrumentalization.7 Contrary to the totalitarian and destructive characterization of “instrumental rationality” proposed by members of the Frankfurt School (Adorno and Horkheimer 1997), I focus on the qualitatively specific ways that humans use nonhuman beings in particular socio-historical contexts, and instrumentalization’s generative (as opposed to purely destructive) character. Following Feenberg (1999, p. 202), I claim that instrumentalization involves both “the functional constitution of technical objects and subjects,” and their realization “in actual networks and devices.” Instrumentalization’s concrete forms reflect contingent interests, social arrangements, values and technical capacities and is always open to contestation and transformation. Far from the imagery of nature “staying put” while humans observe it, instrumentalization implies both objectification and subjectivation. In order for objects to be functionally constituted, they must be isolated and separated from their useless qualities. This can involve physical transformations (for example, transforming habitat can kill organisms or alter the trajectory of their evolution), as well as alterations in classificatory schemes (for example the application of a new taxonomy). With respect to subjectivation, instrumentalization presupposes a technically capable human subject and a set of social relations in which they operate (Feenberg 1999, pp. 203-208).
Taxonomy as a Politically Potent form of Objectification
With the rudimentary components of the theoretical framework identified, I further specify the particularities of the type of objectification most relevant to endangerment, and the specific case at hand: biological taxonomy. I motivate this move by articulating taxonomy’s political significance in the context of contemporary environmental politics in the United States, and then summarize the implications of the chapter’s theoretical proposal in relation to the case at hand. The purpose of the Endangered Species Act (ESA) is to avoid the extinction of species. The ESA defines “endangered species” as “any species which is in danger of extinction throughout all or a significant portion of its range” and “threatened species” as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Ambiguities abound, and interpretations of many terms in the ESA have been subject to wide disagreement and application since its passage (Alagona 2013, pp. 96-121; Doremus 2010). Here I focus on one narrow question: what types of knowledge does the ESA process presuppose? First, and foremost is taxonomy. In order for a species to be considered for ESA listing, it must be a unique taxonomic entity. However, the ESA complicates matters by clarifying that “the term ‘species’ includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature” (Department of the Interior 2003, pp. 2-4). This definition leads to the second and third types of knowledge that the ESA process presupposes: the spatial distribution of a species (its range or habitat); and a record of population trends over time (or some other evidence that the prevalence of the species is declining). As Alagona (2013, p. 97) points out, one of the reasons that the ESA has proved so controversial despite its not being subject to significant contention leading up to its passage is
7 I do not claim that all human-nonhuman relations are instrumental, or that non-instrumental relations are not relevant to the emergence of environmental knowledge. Angelo (2013, p. 354), for example, highlights experiential, aesthetic encounters with nature and points out that “understandings of nature are inseparable from the concrete ways in which we encounter it.” 21 that its framers “failed to grasp the number of species, including some with little economic value or charisma, that would eventually qualify for protection.” Further, few understood the extent to which taxonomic classifications of new species would increase over time. Rather than slowing as the nonhuman world was conquered, new species classifications have accelerated in recent decades.8 The delta smelt is one particularly consequential example of how new distinctions are drawn through shifting modes of instrumentalizing and objectifying the nonhuman environment. Taxonomy is a form of objectification, and as such it is a topic for historical ontology, the coming to be of the very possibility of objects. To test the validity of this chapter’s approach is to inquire into the relationship between taxonomy and instrumentalization. Dupré’s (2002) philosophy of biology does just this.9 His argument against the concept of “natural kinds” complicates the commonsensical notion that there are straightforwardly correct taxonomic distinctions waiting out there for scientists to discover. Taxonomies divide up individuals into similar and dissimilar groups, however they rely on what Dupré calls a “sameness relation,” which defines the relevant criteria for placing individuals in or outside of a particular kind. Dupré’s (2002, pp. 27-79) simple yet profound thesis, which he associates with “promiscuous realism” (a nonhuman counterpoint to Hacking’s “dynamic nominalism”), is that “there are many sameness relations that serve to distinguish organisms in ways that are relevant to various concerns” and that there is no clear a priori basis for privileging any one of these relations. Any taxonomic order will bear the marks of the ends privileged by those who devised it. Many taxa operative in ordinary language have no basis in biological theory, the very category “fish” being “three chordate classes Chondrichthyes, Osteichthyes, and Agnatha.” Taxonomists face considerable ambiguities when navigating the choices in the “range of morphological, phylogenetic, and ecological considerations that have figured in various attempts to define the species.” This does not mean that taxonomic judgments are arbitrary or infinitely plastic. Rather, synthesizing Dupré’s and Feenberg’s (1999) insights yields the proposition that one expects changing ways of instrumentalizing the nonhuman world (e.g. reengineering rivers) to result in new taxonomic distinctions because any such shift will privilege sameness relations specific to its ends. Further, taxonomic innovation is politically potent when preventing extinction is public policy.10 Further still, new ways of instrumentalizing the nonhuman world that are both disruptive of organisms’ life support systems and generative of taxonomic distinctions will be especially likely to result in the coming to be of endangered species as objects of knowledge. To return to the case under consideration, different ways of instrumentalizing fisheries, each embedded in a set of institutions and technologies, emphasize different useful qualities as exemplified in various possible methods of estimating fisheries stocks and qualitatively distinct taxonomies. The material and epistemic residues left by a particular form of instrumentalization (e.g. specimen repositories, catch counts, and ecosystem surveys) can provide the basis for second order knowledge claims, as the taxonomic classification of the delta smelt described
8 The Index of Organic Names demonstrates the acceleration of new species classifications in the mid-20th century. See: http://www.organismnames.com/metrics.htm?page=graphs. 9 There is a vast philosophical literature about “natural kinds” (cf. Campbell et al. 2011). A comprehensive review is beyond the scope of this article, but I aim to facilitate more dialogue between philosophers and social scientists on this topic. Within STS, Dupré’s position is closest to “finitism” (cf. Sismondo 2004, pp. 43-44). 10 The identification of new species has become a purposive strategy for advocates of environmental protection. The snail darter controversy is one important example of this (Plater 2013). This does not go far in explaining the delta smelt case, but there is no contradiction in acknowledging the coexistence of material and social preconditions for taxonomic classifications, and strategic motives behind identifying them. 22 below shows. Political actors who seek to make credible demands on society’s relation to the nonhuman environment often have no choice but to rely on this very body of knowledge. As such, their claims are conditioned by the very form of instrumentalization that they seek to transform. Figure 1.1 presents a schematic model of human-nonhuman looping effects in the context of the historical ontology of endangerment, the way that new nonhuman objects emerge out of human-nonhuman relations and ‘loop back in’ to society, transforming both human-human and human-nonhuman relations. The first premise of this theoretical proposal is that knowledge of the nonhuman world is possible only via concrete relations to it. Given that the object of environmental political conflict is how “nature” is used, the shifting ways of instrumentalizing the nonhuman world provide insights into both the changing balance of power between actors and the very categories by which they come to know and realize their interests. This approach articulates how shifting human-nonhuman relations can produce new nonhuman objects of knowledge. Just as shifts in how the nonhuman world is instrumentalized directly empower and disempower human constituencies, different configurations of knowledge facilitate unique strategic alliances between actors. Thus, modes of objectification provide the basis for the formation of constituencies and alliances which struggle to determine if and how ways of instrumentalizing the nonhuman environment should change.
Figure 1.1: Human-Nonhuman Looping Effects in the Historical Ontology of Endangerment
The empirical questions posed by this model are exactly how instrumentalization facilitates objectification, how objectification facilitates the formation of constituents and alliances, and exactly how they struggle over how to relate to nature. As the case illustrates, a deep irony pervades the politics of endangerment: advocates owe the basis of their claims to the very relation to nature that they see to transform. The reengineering of California’s rivers for productive ends produced not only a set of interested parties striving for dominance, but a new
23 order of knowledge that would serve as a grid of intelligibility for all actors in future struggles over the direction of development in the state. At the center of these struggles is the delta smelt.
Introducing the Case
On December 14, 2007 the United States District Court of Eastern California issued an order that shifted the balance of power in the Western political economy of water. Judge Oliver W. Wanger’s interim remedial order required that the pumping of water from the Sacramento-San Joaquin Delta (“the Delta”) be curtailed in order to save the delta smelt — a small, decidedly uncharismatic pelagic fish — which stood at the precipice of extinction. Coupled with upstream diversions, continuous pumping of immense quantities of water from the Delta to southern California cities and the United States’ primary agricultural hub, the southern Central Valley, has directly contributed to the decline of the species due to reversed streamflows, habitat disruption, and — especially prior to the installation of protective screens and a program that transports saved fish upstream in trucks — the actual sucking up of fish into the pumps themselves. The stakes of this decision were high. Since the mid-20th century, moving water from the northern to southern half of the state has been the underlying substrate of California’s economy and its status as one of the world’s most productive agricultural regions. Completed in the decades following WWII, the federally managed Central Valley Project (CVP) and the California State Water Project (SWP) transformed the Delta, the largest estuary on the Pacific Coast of the Americas and the confluence of California’s two major river systems, into a machine for the conveyance of water southbound. Delta water was a historical condition of possibility for California’s post-war ascendency: the population explosions of southern California cities and the irrigation of millions of acres of farmland that could not otherwise be exploited (Reisner 1993; Hundley 2001; Carroll 2012). The problem is that the sole habitat of the delta smelt is coextensive with the area most directly impacted by the pumps that send water south from the Delta to California’s most productive agricultural regions and largest population centers. “The crisis of 2007 continued into 2009,” writes Alagona of this episode, and evolved into “one of the country’s most contentious and high-stakes endangered species debates.” The subsequent decisions, he explains, “temporarily reduced the total deliveries from California’s two main water systems by 15 to 20 percent. Some farming areas with low-priority water contracts, such as the Westlands Water District in the arid western San Joaquin Valley, faced even greater losses” (Alagona 2013, pp. 199-200). At the height of the controversy academic economists reported losses of “as many as 80,000” jobs. While this figure has been discredited by subsequent analyses, which suggest an upper bound estimate in the low thousands, “fish versus jobs and communities” became a durable way of framing the issue for years to come (Alagona 2013, pp. 221-22). One member of the agricultural community complained that the government had thrown out “enough water to produce crops on 200,000 acres or 10 million tons of tomatoes; 200 million boxes of lettuce; 20 million tons of grapes,” all because of “the science of four buckets of minnows” (Krieger 2015). Since the passage of the California Endangered Species Act in 1970 (CESA) and its better- known federal counterpart, the ESA in 1973, it has been the purview of both levels of government to ensure that no species living under its territorial jurisdiction goes extinct. As the application of these laws have increasingly implied habitat conservation, debates about endangered species have become proxy wars for broader social conflicts over the rightful
24 relationship between humans and “nature,” and the distribution of the benefits and burdens of economic development. Still hovering at the edge of extinction, the delta smelt (see Figure 1.2) remains an object of intense scientific and legal attention, but also a powerful symbol deployed rhetorically by both sides, galvanizing environmentalists and their allies who farm and live in the Delta, as well as their opponents in the southern Central Valley and elsewhere. At once it is “a marker species, the canary in the delta coal mine,” representing conservationists’ concerns about the immanent collapse of the Delta ecosystem, the largest estuary on the west coast of the Americas (Chico Enterprise-Record 2015), and in the words uttered by U.S. Representative Devin Nunes on the floor of the House, a “stupid little fish,” that environmentalists care more about than the wellbeing of their fellow humans (Clarke 2014).
Figure 1.2: The Delta Smelt (Hypomesus transpacificus). Source: University of California, Davis
This ‘stupid little fish’s’ frequent mobilization on the national stage illustrates its political significance. In 2011 former Alaska governor and Republican vice-presidential candidate Sarah Palin claimed that “some of the nation’s richest and most fertile farmland lays fallow,” because a bureaucrat took away their water “in order to protect a two inch fish” (Driscoll 2011). Five years later, in an attempt to woo California voters, Republican presidential hopeful Ted Cruz mocked environmentalists, claiming that “three-inch fish go great with cheese and crackers.” His then running-mate, Carly Fiorina, called protections for the delta smelt an example of the “tyranny of the left, the tyranny of environmentalists” (Siders 2016). “There is no drought,” Donald Trump asserted in a speech to supporters in Fresno just prior to clinching the Republican presidential nomination in 2016. “It is so ridiculous where they’re taking the water and shoving it out to sea,” he clarified, “to protect a certain kind of three-inch fish” (Colvin 2016).
25 As these complaints suggest, the delta smelt is a thorn in the side of actors interested in the continuous conveyance of water, and thus a political rallying point to for those seeking their support. What those who view the ‘stupid little fish’ as part of an environmentalist conspiracy miss is that its emergence as an object of knowledge was a product of the very extractive relation to the nonhuman environment on which they rely. It is to the history of this relation that I now turn.
California as a “Modern Hydraulic Society”
In recent years, water has been identified as a site of cultural conflict (Espeland 1998), state formation (Mukerji 2009; Carroll 2012), class struggle (Worster 1985; Swyngedouw 2004), material and technological cultures (Carroll-Burke 2002; Bijker 2007), social volatility and uncertainty (Krause 2017), and neoliberalization (Bakker 2010), to name only a few examples. Water is a fruitful site for studying the relationship between knowledge and government. Efforts to exert hydraulic control reveal new dimensions of the aquatic element’s unruliness, precipitating the need for further scientific scrutiny, and new regimes of managing the relationship between humans and their environment (Swyngedouw 2004; Mukerji 2009 Linton 2010; Pritchard 2011). The same is true of fisheries management, which is entangled, not only with water politics, but also with other power structures including international treaties and the legacies of settler colonialism (Taylor 1999; Halverson 2010; Finley 2011). California is a particular dramatic site for studying the relationship between science and politics. Carroll (2012) shows how water became a crucial boundary object between science and government, and was central to California’s formation as a modern technoscientific state. The case at hand similarly involves the entanglements of science and politics, but instead of focusing on the gradual process of state formation, the present study’s analytical focus is on a single, radical transformation of Californians’ relation to rivers and fisheries. Donald Worster (1992, p. 55), the environmental historian of the American West, called California “a modern hydraulic society — a social order founded on the intensive management of water.” Although many narrative styles and analytic approaches have been used to describe California’s historical relation to water (Reisner 1993; Hundley 2001; Carroll 2012), the broad sequential outlines of Worster’s history are largely undisputed. This section situates the case of the delta smelt against this historical backdrop and describes the significance of the Delta in this history and contemporary water politics in the state. Worster’s history of California is organized around “diversion plateaus,” dead ends in the human ability to extract water, given a particular socio-technological configuration. California encountered its first diversion plateau in the late 19th century with the declining marginal value of creating addition dams and ditches of the scale that a few farmers could build. The rise of the private corporation allowed capital to flow from growing metropolises like San Francisco to pursue more expensive forms of irrigation including canals. Politicians then came to understand irrigation to be a matter of public concern, and a new institution was invented: the irrigation district, which could enroll tax payers in the cause of increasing California’s agricultural productivity. In this phase of history, owing to California agriculture’s increasingly capitalistic modality, the state established itself as the nation’s agriculture powerhouse. But as cultivation intensified, and rivers were diverted to capacity, farmers turned to the pumping of groundwater. The depletion of aquifers coupled with the effects of the Great Depression threatened the sustainability of California’s agricultural empire. Thus a new
26 diversion plateau was met with greater centralization of power. The federal government, with its capacity for deficit spending and its interest in expansionist economic policy (which included the project of electrification, of which dams were no small part), set into motion what was then the largest infrastructural product in the history of humankind: the CVP, which irrigated much of the southern part of the state by diverting the rivers of the north (Worster 1992; Worster 1985; Carroll 2012). I follow Hundley’s (2001, pp. 203-304) adoption of Worster’s term “modern hydraulic society” to refer to the successful implementation of California’s major water projects in the mid 20th century, which culminated in the third and final diversion plateau in Worster’s history, and are defined primarily by the CVP and SWP (see Figure 1.3 for a map of these projects). Importantly, the onset of modern hydraulic society empowered actors including irrigation districts in the southern half of the state, which would gain inordinate political influence throughout the second half of the 20th century (Reisner 1993). Given that these constituencies were empowered, or even called into being by the diversion of water, they would be poised against any barriers to the ongoing extraction of water, and in particular reductions in flows associated with endangered species conservation.
27 Figure 1.3: Map of Major Water Projects in California: Central Valley Project (Federal) and State Water Project. Source: United States Department of Interior, Bureau of Reclamation
28 The Delta is both geographically and politically at the center of contemporary California’s water supply. It sits at the confluence of two major rivers: the Sacramento to the north and the San Joaquin to the south. Water from California’s largest watershed, which accounts for “roughly 45 percent of the state’s surface area” flows to this critical point (Lund et al. 2010, p. 3). What is not used by humans passes through the Delta westward into the San Francisco Bay Estuary en route to the Pacific Ocean. In the 19th century the Delta was transformed from wetlands into highly productive farmland by installing a complex of earthen levees. The 20th century saw the installation of massive pumps and aqueducts associated with the CVP and the SWP, establishing it as a crucial link in a hydraulic system that now provides water for about two thirds of California’s population and irrigates over 3 million acres of agricultural lands (Department of Water Resources 2010; Bureau of Reclamation 2013). Much of the southern half of the state, including the majority of California’s large population centers and its most productive farmlands, could not exist in anything like their current form if it weren’t for this water. In its contemporary status as both infrastructure and ecosystem, the Delta is widely understood to be in crisis. Scientific and policy commentators refer simultaneously to the “Katrina-level fragility of [its] 1,100 miles of levees,” and to an ecosystem on the verge of collapse that represents crucial habitat for hundreds of endemic and migratory species (Lund et al. 2010, pp. 3-9). The regulatory apparatus tasked with balancing relevant interests and integrating contested scientific findings with the decisions of elected officials is as complex and rife with contradictions as the systems it manages. Signaling a multiplication of problems at the intersection of science and government in recent decades, the former chair of the Independent Science Board of the Delta Stewardship Council, the body that coordinates among the many agencies managing the Delta, recently claimed that coherently synthesizing all of the knowledge required to balance long-term ecological concerns and more immediate economic needs would require “a brain 10 times the size of Einstein’s to fit it all together” (Unger 2016). Below I show how the delta smelt emerged at the center of these issues.
Instrumentalizing and Objectifying Fisheries in Early 20th Century California: Commerce and Natural Resource Conservation
Before the onset of modern hydraulic society, Californians instrumentalized fisheries in a markedly different way than in the second half of the century. I lay out this relation and the concomitant ways in which California’s natural resource management agencies objectified fisheries in this era. After comparing two consecutive eras of instrumentalization and objectification, I provide a detailed study of the delta smelt over the same period. Several U.S. Supreme Court cases in the 19th century solidified state jurisdiction over the control of fish and game within their territorial boundaries, culminating in Greer v. Connecticut (1896) which established state ownership of fish and game (Alagona 2013:60-61). In practice California’s regulatory apparatus’s management of fisheries was modest through the middle of the 20th century. Nevertheless, the state did objectify fisheries and regulate their use, and in a distinctive way that was consonant with how fisheries in California were instrumentalized during this period. To Californians during this period, fish were a source of commercial and recreational value. Although recreational and commercial fishers and hunters have long comprised distinct and often antagonistic parties (McEvoy 1990; Halverson 2010), the first two decades of the 20th century
29 were marked by disagreements over what should legally constitute “recreational” and “commercial” uses of fish and game. These debates were inflected by tensions across class, ethnoracial, and regional lines (Alagona 2013, pp. 62-68). As they eventually settled, state regulation of fish and game centered on reinforcing the distinction, meaning enforcing permit requirements and sale prohibitions, and penalizing poaching. Fisheries in California were by and large not an object of engineering during this period, nor were they an object of systematic science. For roughly the first half of the 20th century, the agencies11 tasked with managing fisheries in California viewed their object as a natural resource to be exploited in the interests of “efficient development and wise utilization” (McEvoy 1990, pp. 163-184). Evidence of how agencies conceive of what they are doing can be found in their procedures for accounting for the resources that they manage. Because of the diffuse nature of recreational fishing and the limited fiscal and technological resources for doing so, California fish and game agencies had no systematic reporting of recreational catches (“landings”) in this period. Instead, agencies reported revenue from fishing licenses, seizures of illegally harvested fish, and penalties for fishing without licenses. By the end of the first decade of the 20th century, however, patrolling rural spaces proved to be an ineffective way of enforcing fish and game code. In 1911 California state legislature authorized the California Fish and Game Commission (CFGC) to regulate wholesale fish and game markets. Focusing on the point of sale was more efficient from a policing perspective. Those who illegally traversed the boundary between recreational and commercial uses of fish and game could be caught selling their catch in highly centralized urban markets (Alagona 2013, p. 62). Moving to urban enforcement at the point of sale also provided the basis for the modern statistical system of objectifying commercial fisheries in California. For the first half of the twentieth century, counting fish caught and sold in wholesale markets was the state’s sole method of systematically objectifying fisheries stocks. Enforcing fish and game code was not the only justification for data collection. As a defender of the public trust, one of the Division of Fish and Game’s (CDFG) imperatives was to ensure rational exploitation of California’s natural resources. In a report of commercial fish catch statistics from 1930-34, the agency justifies their data collection activities in a way that spells out what rational exploitation meant at the time:
In attempting to administer a fisheries resource on conservation principles, the object is to so manage that the return derived from the resource will be the greatest possible over a period of years. The goal is a high annual return repeated year after year, indefinitely into the future. The all important essential is a knowledge of the supply drawn upon because the yield depends on the extent of the supply, its capacity to yield and the degree of utilization of the supply.
This is an unambiguous definition of natural resource conservation as conceived by the agency. However, there remain various possible methods of constructing the knowledge of fisheries supply. In the context of commercial fisheries, the initial method of doing so was to simply count fish at markets. For the purpose of understanding the actual status of the resource in question, this method has obvious limitations, of which managers were well aware. In the same
11 A few words are required to identify the relevant agencies. The California Board of Fish Commissioners, established in 1870, was the first wildlife conservation agency in the United States. In 1909 it became the California Fish and Game Commission. In 1927, its administrative functions were taken over by the Division of Fish and Game in the Department of Natural Resources (CDFG), with the Commission retaining regulatory powers. The Division was elevated to departmental status in 1951. The Department of Fish and Game (DFG) was renamed the Department of Fish and Wildlife in 2012. To avoid confusion I refer to “California fish and game agencies” when discussing time periods that span these name changes and changes to agency structure (Department of Fish and Wildlife 2016). 30 report cited above, the CDFG articulates these limitations and explains the efforts of the agency to devise more valid measures by estimating “the amount of fishing effort expended” using “the number of deliveries for each boat” (Scofield 1935). Even with efforts underway to produce more valid measures of fish catches than those based purely on dealers’ reports, the essential logic remained stable. The attempt to quantify “fishing effort” was subsumed under the goal of extracting an efficient yield over a long time horizon. The practicalities of coordinating counts of commercial landings are markedly different from those of executing a systematic scientific survey. Decentralized reporting with weak enforcement created issues of reliability. In order for counts in individual markets to be commensurable, all parties must agree on a system of classification. While the commercial actors of early 20th century California and the agencies that policed them did not use “vernacular categories” as idiosyncratic as those described by Ritvo (1997) in her study of the classification of animals in Victorian Britain, the general claim that she defends holds in this case. Much as Dupré (2002) argues, she observes that systems of biological classification reflect the “particular needs and experience” of individuals doing the classifying. Commercial actors and regulators alike reported catches in categories relevant to market transactions, not to zoologists. Compared to scientific survey designed to identify specimens based on precise biological taxa, a system of categorization for an object of commerce is likely to be far less fine grained, delimited by market categories. While several then-identifiable species of smelt were viable commodities in California in the early 20th century, in commercial landings reports (and reports of fish imports) published by the California fish and game agencies, they are all reported as “smelt” simpliciter.12 Fisheries managers did recognize that the “smelt” category in commercial reports actually included multiple species. As a 1928 report on the smelt fishery in the Los Angeles region confirms, the vernacular use of “smelt” employed in the commercial catch reports at that time included various species of not only “true smelts” but also “silver sides” (Clark 1928). The lack of species-specific (or even genus- or family-specific) data collection shows that the classificatory scheme most relevant to the management of the natural resources in the early 20th century was not a scientific taxonomic order. This does not mean that the data were collected under erroneous assumptions, nor that the choice of a taxonomic order in any circumstance is arbitrary. Instead, choices among sameness relations are contingent upon the concerns of the classifier. In the case of fisheries management in the first half of the 20th century, “smelt” simply referred to small fishes with similar commercial uses and visual characteristics. This, however, would all change with the onset of modern hydraulic society after the Second World War in which a new set of sameness relations between humans and fish would become relevant for natural resource agencies, and new linkages between taxonomic science and fisheries
12 California’s fish and game agencies have published a “Fish Bulletin” (hereafter, FB) series since 1913 and a journal, California Fish and Game (hereafter, CFG) since 1915. From 1928 to 1986, FB included commercial landing report with a quantification of total commercial landings. CFG also included commercial landings reports for much of this period, although at varying intervals. During the first half of the 20th century these were the only systematic, comprehensive, and consistently collected data on fisheries in California, although many individual studies on particular topics of concern were commissioned and published in one or the other. A representative sample of the commercial catch reports from 1928-1950 shows that “smelt” simpliciter is the category used in commercial landings reports: CFG 14.1 (1928) p. 102; CFG 18.2 (1932) p. 197; CFG 24.3 (1938) p. 207; FB 30 (1929) p. 128; FB 44 (1935) p. 108; FB 58 (1942) p. 42; FB 67 (1947) p. 45; FB 80 (1951) p. 31; FB 86 (1952) p. 92. 31 management would be forged. These epistemic shifts would have significant political implications after the passage of the CESA and the ESA.
Instrumentalizing and Objectifying California’s Fisheries in Modern Hydraulic Society: Engineering and Systematic Science
The onset of modern hydraulic society resulted in a radical transformation in how Californians instrumentalized and objectified fisheries. They became an object of engineering and systematic scientific knowledge. Fisheries management, in the language of Fligstein and McAdam (2012), is a “proximate field” to water management for the simple reason that fish live in water, and there are vested interests that seek to ensure that they continue to do so. Not only does reengineering rivers alter their physical states, but it reconfigures the relations between actors interested in determining how they are managed. As with the early 20th century, the metrics and procedures for objectifying fish provide evidence of a particular human-nonhuman relation. In the context of the Delta, the first systematic survey of the aquatic ecosystem was conducted from 1946 to 1949 and published in 1950 by the US Fish and Wildlife Service (FWS) as an attempt to evaluate the effects of installing the Tracy Pumping Plant, which reverses streamflows in the Delta to convey water to the CVP (Erkkila 1950). The study was an early part of a greater trend in fisheries management and science in California. In 1959, the California Department of Fish and Game (DFG) initiated annual townet surveys to estimate fish populations and distributions in the Delta which now serve as the basis for measuring delta smelt (and other fish) populations (Alagona 2013, p. 212). The 1950s and 1960s also saw the development and diffusion of “electrofishing” techniques, which amounts to stunning fish in streams, rivers, lakes or reservoirs in order to take a census (Halverson 2010, p. 118). Since the 1950s, California fish management agencies initiated a number of other systematic geography- or species-specific surveys employing techniques including nets, electrofishing, tagging programs, and direct observation (Skinner 1962). Fish also became an object engineering. California had established itself as a laboratory for fish culture technology in the 19th century, but prior to the late 1940s, artificial fish propagation had not been particular efficient or economically viable on a large scale. “The only factor that can be affected,” wrote a CDFG official in a pessimistic statement on attempts to reengineer fisheries in 1945, “is the rate of predation by man” (quoted in McEvoy 1990, p. 184). Just a few years later, this assessment would be falsified. The period directly following WWII saw a proliferation of techniques for the direct manipulation of fish populations, and a stark increase in their utilization. California fish and game agencies were among the most aggressive in the country, and were on the frontier of new techniques including the aerial stocking of remote lakes with surplus military aircraft beginning in 1948 (Halverson 2010, p. 88). Like the scientific objectification of California’s fisheries, their reengineering required institutional resources that were not present in the first half of the century. It wasn’t until the development of the Shasta Dam (a core element of the CVP) in 1945 that water and wildlife agencies at the state and federal level began to coordinate their planning efforts in California (McEvoy 1990, pp. 177-178). The mid-century water development boom and increased investments in fish culture were of a piece. On one hand the expansion of hatcheries was seen as relatively easy technical fix to fisheries depletion that was caused in great measure by new water projects (Halverson 2010, p.83), and by overexploitation by commercial and recreational fishers (McEvoy 1990). On the other hand, stocking new reservoirs was used as a direct economic justification for reengineering
32 the hydrology of the West. For example, the value of recreational fishing of hatchery fish was often included in the “plus” column of the Bureau of Reclamation and U.S. Army Corps of Engineers’ cost-benefit analyses of prospective projects (Halverson 2010, p. 148; Porter 1995, pp. 148-189). McEvoy (1990, p. 197) charts the entanglement of water and fisheries management, supported “by an increasingly powerful sport fishing lobby” as California’s modern hydraulic apparatus was being built in the 1950s and 1960s. This came with a newfound focus on “enhancing wildlife in reclamation projects,” beginning with the initial plans for the SWP. The “enhancement” of fisheries was not an operative concept in the prior period, in which managers believed that the ‘the rate of predation by man’ was the only policy lever at their disposal. Cultural, demographic and fiscal changes reinforced the positive feedback loop between water development projects and artificial fish propagation. Recreational fishing, which had often been associated with social elites, became a national pastime. Mass-manufactured reels, rods and monofilament allowed members of a growing post-war middle class to spend its paid vacations and weekends taking up a new hobby outdoors. “One person in five [in the United States], about 21 million people, went fishing in 1955,” writes Halverson (2010, p. 88), “together spending 400 million days trying to catch fish, a huge increase over the prewar years.” Fishing took on significance as a populist ideal infused with a nostalgic mythos of reconnecting with nature. Whereas fish stocking in the United States began as an attempt to spread fish to new waters, and in particular to propagate certain “desirable” species over others, by the mid 20th century, it became ruled by the logic of maximizing total fish in particular waters. State fish and game agencies, heavily reliant on fishing and hunting licenses for financing, produced and became beholden to new constituencies, the most populous of which were “anglers” (McEvoy 1990, p. 197). The logic of “[m]ore fish, more anglers, more licenses” was reinforced with the passage of the federal Dingell Johnson Act in 1950, which assessed a 10% tax on the sales of sport fishing equipment to be disbursed to state fish and game agencies (Halverson 2010, p. 81). State governments invested millions of dollars every year in the propagation of “ready to catch” fish which were favorites of a growing middle-class constituency of anglers. More than ever, fish and game managers became “calculative agencies” (Callon 1998) as they oriented their decisions to a metric called “return to creel” which represents the “percentage of the stocked fish that were ultimately caught by anglers” (Halverson 2010, p. 86). This metric enabled agencies to construct an unambiguous maximization function, analogous to the capitalist pursuit of profit, allowing fisheries managers to justify the eradication of “trash fish” (and incidentally many invertebrates) by mass poisoning in watersheds all over the West to make way for fish more attractive to anglers (Halverson 2010, p. 110). Combined with biotic cleansing, the propagation of rainbow trout — a species native to the West Coast of North America that would dominate fish culture in all six inhabited continents — came to resemble a monoculture agriculture operation in states like California and Colorado. Whereas commercial catch reports had previously constituted the only comprehensive source of information about California’s fisheries, in the post-war period fish and game agencies produced direct surveys of aquatic ecosystems and data on artificial propagation, something that had been done infrequently, irregularly, and mainly with respect to particular commercial fisheries of concern in the early 20th century. Because this new form of data collection was not mediated by commercial actors, the broad taxonomy of commerce (e.g. the use of the category, “smelt” simpliciter) was no longer the most relevant. More fine-grained data was required in order to precisely identify specimens to produce meaningful assessments of native and
33 introduced fish populations. Whereas commercial reports produced only counts of fish, direct sampling produced specimens which could be preserved for future scientific study. While in the first half of the 20th century, fisheries managers in California merely drew on taxonomic knowledge to inform their own interventions, in the second half, taxonomists could in turn draw on the specimen collections produced by fisheries managers to inform their research. New ways of instrumentalizing water and fisheries in the second half of the 20th century created the conditions of possibility for new kinds of scientific claims. In the next section, I show how the scientific objectification of Delta aquatic ecosystems, commissioned as part of the reengineering of California’s hydrology, directly resulted in the classification of the delta smelt as a taxonomic entity. Table 1.1 provides a schematic summary of this section and the last comparing the two historical periods.
Table 1.1: Two Eras of Instrumentalizing and Objectifying Fisheries in California
First Half of 20th Century Second Half of 20th Century engineering (fish culture), commerce and recreational “enhancement,” systematic Fish as an object of… value, natural resource science, recreational value, conservation commerce systematic ecosystem Metrics commercial landing counts surveys, commercial
landings Relevant system of commercial taxonomy scientific taxonomy classification preserved specimens, fish counts from direct surveys, Data repositories fish counts from markets fish counts from markets
The Delta Smelt Objectified: the Origins of a Species
Ichthyologist Peter Moyle (2002, p. 226) describes smelts as “small silvery fishes with adipose fins that can occur in enormous numbers of inshore marine and fresh waters of the Northern Hemisphere.” As of 2002, seven of the 12 recognized species of smelt were known to be found in California. However, up until the reengineering of the Delta through the CVP and the SWP, there was no taxonomic entity called the “delta smelt” (Hypomesus transpacificus). Biologists and natural resource managers operated with a much broader category of smelt (that included what is now classified as the delta smelt) with a habitat extending from California, north to the Arctic and around to the other side of the Pacific to Russia and Japan called “pond smelt” (Hypomesus olidus). This section presents the upshot of the two previous sections, showing how the objectification of the delta smelt as a unique species and object of potential environmental concern arose out of the historical shift from treating fish as an object of commerce and natural resource conservation to an object of engineering and systematic science, a shift sparked by the onset of modern hydraulic society. 34 Taxonomic distinctions have always been drawn on the basis of specimen comparisons, but the techniques for doing so have changed over time. Disagreements remain regarding the ontological status of higher taxa, but “species” is and has been the most important taxonomic concept scientifically and legally (Wilkins 2009). Although Linnaeus’ hierarchical system of biological classification significantly predates theories of natural selection and was built on assumptions antithetical to it (Foucault 1970, pp. 125-162), that it was based on morphological resemblance allowed for the cooptation of its basic form by early evolutionists. This owes to the fact that morphological and phylogenetic similarities tend to roughly correspond to one another. Morphological resemblance, however, remains highly ambiguous, contingent on the judgments of the taxonomist and on the stock of available specimens for comparison. As early as 1965, Hennig, a founder of phylogenetic systematics, could complain that there was “no definition of the concept of morphological resemblance which is not open to theoretical objection” (Hennig 1965, p. 99). Sound as Hennig’s contention may be, any technique for taxonomic comparison requires a stock of readily available specimens in order to make claims about sameness or difference (Hamilton 2013). There are thus two major conditions of possibility for the maintenance and development of taxonomic order. First is the collection, cataloging, and preservation of specimens (Kohler 2013, pp. 227-270). Specimen collections are often stored in museums (Star and Griesemar 1989; Daston 2012). Second are the technologies and organizations, including universities, journals and professional associations that allow for the communication and standardization of taxonomic knowledge across institutional and spatial boundaries (Fleck 1979; Latour and Woolgar 1986). Both of these conditions are relevant to the case at hand, however below I place primary emphasis on the former. Historians of science have demonstrated the relationship between economic globalization (and in particular, colonialism) and the explosion of opportunities for (often exotic) specimen comparisons which forced philosophers, scientists and practitioners to reevaluate existing taxonomic systems. Although not as taxonomically disruptive as was Ritvo’s (1997) example of the introduction of the Australian platypus and kangaroo to 18th century England, international specimen comparisons similarly provided much of the basis for the earliest taxonomic distinctions between species of smelt. The first scientific taxonomy of smelt can be found in the German biologist Peter Simon Pallas’s Zoographia Rosso-Asiatica (1811), his three volume collection on Russian and Asian zoology. It contains a reference to Salmo olidus, classifying what is now known to be the “pond smelt” (Hypomesus olidus) as a member of the Salmoniformes order (Bailly 2015; Stafleu 1983, p. 20). The origins of the modern taxonomy of smelts date back to David Starr Jordan’s expeditions to Japan on the U.S.S. Albatross in the first decades of the 20th century. He was at once an ichthyologist, peace activist, and scientific eugenicist, and accordingly Starr Jordan’s writings provide evidence of a dual purpose — diplomatic and scientific — of his expeditions to Japan. The introduction of a 1913 catalogue on the fishes of Japan, which includes an entry on Hypomesus olidus, shows that he saw the promotion of international rules of zoological nomenclature as constitutive of his role as a scientist (Jordan, Tanaka and Snyder 1913, p. 2). Expeditions from the U.S.S. Albatross also added significantly to the stock of fish specimens available in museums in the United States, which were in turn used to draw new taxonomic distinctions. Following Star Jordan’s 1922 expedition to Japan (Jordan and Hubbs 1922), his junior associate Carl Hubbs drew upon these new resources deposited in American museums to
35 publish his 1925 “A Revision of the Osmerid Fishes of the North Atlantic.” Here, referring to the species that then included the present day delta smelt he writes:
Hypomesus olidus ranges from the mountain lakes of central Japan and the shores and coastwise fresh- waters of northern Japan, northward through Kamchatka to the Arctic shores of North America; thence southward along the east side of the North Pacific as far as the upper or brackish portions of San Francisco Bay.
As the basis for his revision, Hubbs (1925) claimed to have examined “nearly all the material preserved in American museums.” However, because there were no systematic sampling programs of fisheries in California prior to the CVP, the stock of samples he drew upon included few samples from California itself. Unlike later revisions, Hubbs’ study does not cite specimens used as the bases for his revision. However, as of 2016 the California Academy of Sciences had on record 518 specimens Hypomesus genus, but contained not one labeled Hypomesus olidus (pond smelt) from the continental United States collected prior to 1940, 15 years after Hubbs’ study, and well after the construction of the CVP was underway.13 The Smithsonian National Museum of Natural History, which houses the world’s largest collection of preserved fishes including most of the material collected by the U.S.S. Albatross, had on record 120 specimens labeled as Hypomesus olidus, but only two collected in California (in 1890).14 A majority of the specimens of smelt of any variety deposited at either of the two museums collected prior to Hubbs’ study were collected by the U.S.S. Albatross either in Japan, Russia, or off the Pacific coast between Alaska and the San Francisco Bay. At least in the case of smelts, in the first few decades of the 20th century, taxonomic science was largely divorced from fisheries management in California.15 This all would change with the onset of modern hydraulic society in California. The 1950 FWS report discussed in the previous section was the first systematic scientific objectification of Delta fisheries. This meant not only counting fish according to an already established grid of categories, but collecting and preserving samples that could provide the basis for future taxonomic revisions. The study’s purpose was to generate recommendations for how to mitigate some of the CVP’s effects on commercially and recreationally valuable fisheries, although it mainly consists of descriptive statistics, with analyses and recommendations presented as highly tentative. Pumping commenced in 1951, and for the first time federally subsidized Delta water flowed to the southern Central Valley to irrigate millions of arid acres, producing a new constituency of agricultural interests — the same constituency that would be pitted against environmentalists and Delta farmers decades later in the fight over the delta smelt. Although the principal object of the 1950 study was “the most valuable fishery resources in the Delta,” the authors of the report explain that it was “conducted with a view toward ascertaining the biology, composition, and abundance of the populations considered to be most vulnerable to the Tracy Pumping Plant and the Delta Cross-Channel.” Therefore, “in order that a complete understanding of the aquatic complex of the area would be gained,” the study included
13 Collection data for the California Academy of Sciences are available at: http://researcharchive.calacademy.org. 14 Collection data for the Smithsonian National Museum of Natural History are available at: http://collections.nmnh.si.edu. 15 Another collection of note is the University of Michigan Museum of Zoology. However, most of the Hypomesus specimens deposited there prior to the 1925 revision were collected by Hubbs himself during his tenure as there as the curator of fish, and not one Hypomesus Olidus specimen on record was collected in North America. Complete collection data are available at: http://fms02.lsa.umich.edu/fmi/webd/ummz_fish 36 reports on other fish caught as well. Among the other fish included in the study was the pond smelt, Hypomesus olidus. Although the report explains that live specimens were returned to the water after measurement, those “killed in towing operations were measured and then preserved in five percent formalin” (Erkkila 1950, pp. 9-10). That the FWS Fishery Research Biologists preserved specimens from the study proved to be a crucial factor in the story of the delta smelt, a point I return to below. Following in the footsteps of the 1950 FWS study, the State of California implemented its own study of the Delta ecosystem to similar ends in 1961. This time the impacts of interest were associated with the SWP, which included the installation of a second pumping plant to convey water to southern California and the Central Valley (Department of Water Resources 1961). The multiyear Delta Fish and Wildlife Protection Study executed by DFG in coordination with the Department of Water Resources was “designed to answer specific questions raised by water development plans proposed for the estuary, and to provide a background of information that could be used to evaluate these plans.” This meant a second systematic inquiry into the “the distribution, relative abundance, food and spawning habits of fishes in the Sacramento--San Joaquin Delta” (Department of Fish and Game 1966, p. 7). As did the FWS Study, the study added to the stock of preserved specimens of smelt which would later be available for the purposes of comparisons. The first decades of the 20th century saw taxonomic revisions of smelts emerging from international communications between Japan and the United States, as the case of Starr Jordan and Hubbs exemplifies. On the other side of the Pacific, the 1950s and 1960s saw additional taxonomic revisions building on the work of Starr Jordan and Hubbs, owing to specimen comparisons between Japan and the USSR, and within Japan (Hamada 1957; Hamada 1961). A close reading of these revisions suggests why Japanese taxonomists would have had more opportunities for novel specimen comparisons during this period. Unlike the United States, by the mid 20th century, smelt in Japan were being propagated artificially for commercial use throughout the country. Hamada, in his 1961 revision of the genus, directly motivates his taxonomic work with respect to the propagation of smelt, arguing that it would allow for more effective cultivation (Hamada 1961, pp. 50-51). The comparatively higher level of scientific scrutiny of smelts in Japan versus the United States in this period was of a piece with the fact that smelts were an object of engineering in Japan. Indeed, California fisheries managers knew this, and they relied on expertise in smelt propagation to further their own goal of reengineering California’s fisheries. In the late 1950s, DFG began experimenting with ways to sustain large populations of hatchery trout in its growing number of reservoirs. In order to do so, managers needed to be able to identify reliable food sources for them. They decided that what was then known as pond smelt (Hypomesus olidus) would provide ideal forage for rainbow trout. Unable to obtain sufficient wild smelt eggs in California, DFG officials (as explained in one of their annual reports):
…began correspondence with Japan, where the species is well established in many lakes, with the hope that smelt eggs could be purchased. Biologists of the Research Institute for Natural Resources in Tokyo furnished a great deal of information on the ecology of the fish and put the Department in contact with a Tokyo firm from whom eggs could be purchased.
Eggs of what was then understood to be a species ‘distributed as far south as San Francisco Bay on the North American continent and as far south as Japan on the Asiatic side of the Pacific’ were shipped from Japan on March 18 and 31, 1959 and were introduced in several reservoirs in
37 California (Wales 1962). Smelt had been enrolled in the project of reengineering the state’s fisheries, a project that was a direct result of the onset of modern hydraulic society.16 As smelts in California transitioned from an object of commerce and natural resource management to an object of systematic science and engineering, a disruption of the taxonomic order from the eastern side of the Pacific soon followed. Canadian ichthyologist Donald McAllister’s 1963, “A Revision of the Smelt Family, Osmeridae” draws directly on the resources provided by the two studies conducted to evaluate the effects of the CVP and SWP pumping plants on economically valuable fisheries. This revision includes the first taxonomic distinction between the pond smelt (Hypomesus olidus) and the delta smelt (Hypomesus transpacificus), which is based primarily on fine-grained organ and head measurements, and scale and ray counts 17 taken under a microscope. Unlike the taxonomists of the early 20th century and before who had to rely on specimens procured from far flung expeditions or collected on an ad hoc basis, McAllister was an early inheritor of the systematically collected and preserved specimens produced in the process of reengineering California’s hydrology.18 McAllister’s 1963 revision is emblematic of the increasing entanglement of the fields of fisheries management, water management, and taxonomic science. In contrast with Hubbs’ sole reliance on existing museum collections, he directly cites the FWS study, and relies on the preserved specimens from it and of the SWP study in order to make morphological comparisons. The holotype19 used to distinguish Hypomesus transpacificus (the delta smelt) from Hypomesus olidus (pond smelt) was obtained directly from the FWS and was collected in 1949 as a part of the above-described study. The paratypes used in the comparison consist of other specimens
16 The introduction of Japanese smelt (wakasagi) to California is now considered a problem (Moyle 2002, p. 227). 17 In the description of the pond smelt, McAllister (1963, pp. 31-34) writes that it can be “[d]istinguished from other Hypomesus by the low number of pyloric caeca, 0 to 3; the attachment of the ductus pneumaticus behind the anterior end of the bladder (discovered by Hamanda, [sic] 1957); and the great length of its longest anal ray, 1.8 to 2.3 in head length.” Of the delta smelt, he writes that it can be “[d]istinguished by the low number of midlateral scales, 54 to 60; the ductus pneumaticus attaching to the anterior end of the gas bladder; and the high number of pyloric caeca, 4 to 5; from H. t. nipponensis by the lower number of pectoral (10-12), higher dorsal (9-10) and anal rays (15-17). One or no chromatophores between mandibles.” The McAllister revision also distinguishes between wakasagi and delta smelt at the sub-species level. Later revisions would designate them as distinct species (Moyle 2002, p. 227; Stanley, Moyle and Shaffer 1995). 18 As in the United States, Canadian fisheries research in the first half of the 20th century was primarily focused on the promotion of economically important commercial and sport fisheries. However, rather than developing its own line of taxonomic research, Canadian specimens collected during this period were typically submitted to museums in the United States for identification and cataloguing (Drymond 1964). Prior to McAllister’s appointment as its first Curator of Fishes in 1958, the Canadian National Museum had no full time ichthyologists on staff, with fish collections being subsumed under herpetology. The small collection of specimens held by the museum remained mostly uncatalogued prior to McAllister’s appointment. His efforts contributed to a massive increase in the size of the specimen collection at the museum, and to a pioneering attempt to computerize species distribution data, both achievements buttressed by the proliferation of specimen collections associated with the reengineering of rivers in the North American West (Cook et al. 2010). 19 “Holotype” is defined as “the single specimen upon which a new nominal species-group taxon is based in the original publication.” Other specimens included in same “type series” are referred to as “paratypes.” Source: International Code of Zoological Nomenclature, http://www.nhm.ac.uk/hosted- sites/iczn/code/index.jsp?nfv=true&article=73. 38 collected and preserved by the FWS and the California DFG during the period of their respective studies of the impacts of the CVP and the SWP pumps and conveyance systems.20 Although this revision was published a decade before the passage of the ESA, McAllister’s oeuvre and testimonials from those who worked with him indicate that he viewed taxonomic and distributional knowledge of species as integral to the preservation of biodiversity (Mosquin 2002; Coad 2010). An early instance is a review of Silent Spring published the same year as his taxonomic revision of smelts, in which he presents Rachel Carson’s intervention as an exemplar of how basic biological research can positively influence public policy decisions (McAllister 1962). Later testimonials suggest that taxonomy was not merely a technical activity for him, but had an ethical dimension. As a friend and colleague of McAllister of almost 40 years writes, “He firmly believed that ecological knowledge was power and he worked to spread as much of it as far and wide as possible … [and] that humanity could not and would not preserve biodiversity until there was a widespread understanding and appreciation of it” (Mosquin 2002). As the founding editor of the scientific journal Biodiversity (among other publications) McAllister insisted that in order to “engender and foster respect for all living species, this journal [Biodiversity] capitalizes the common names of all formally named species” (Dang 2001). It would be tempting, then, to view taxonomic revisions as reflections of zoological interests. It is after all, the vocation of ichthyologists to draw distinctions between classes of fish. This genre of explanation has a venerable place in the sociology and history of science (e.g. MacKenzie 1976), however, to cede primary explanatory power to ichthyological interests and values is to sidestep the central irony of this case. Whatever professional and ethical motivations this Canadian ichthyologist harbored, it was only because the habitat of the delta smelt was reengineered for the purposes of extraction that the physical and institutional resources for its taxonomic definition — namely, systematically collected and preserved specimens conducted as part of the completion of the CVP and SWP — were available to him in the first place. First and foremost it was the shifting relation to fisheries created by the onset of modern hydraulic society that produced the conditions of possibility for a new, more fine-grained taxonomy of smelts, one grounded in the imperatives of modern hydraulic society and the concomitant sameness relations and data repositories that it privileged (see Table 1.1). The new modes of objectifying fisheries in California associated with the implementation of the CVP and SWP produced unprecedented systematic spatial and longitudinal data of Delta fisheries that would make possible credible claims about the delta smelt’s endangerment.
Coalition Formation and Political Challenges: Science Loops Back in to Modern Hydraulic Society
The reengineering of the Delta as the center of the state’s hydraulic apparatus did not merely result in the emergence of new scientific knowledge. It gave challengers to the imperatives of modern hydraulic society the basis for making convincing claims about its ecological unsustainability, fomenting ongoing legal and political conflicts that have reverberated throughout, and occasionally beyond the state of California. Peter Moyle, widely considered the foremost expert on the delta smelt, did not know McAllister, nor did he set out to intervene in environmental politics. Nonetheless, he also worked
20 The author compared all of the individual specimen catalogue numbers listed in McAllister’s (1963) revision with the records in the Canadian Museum of Nature to determine where, when, and by whom they were collected. Complete collection data for the Canadian Museum of Nature are available at: http://collections.nature.ca/. 39 within the infrastructural conditions laid by the onset of modern hydraulic society, and contributed to a body of scientific knowledge that would have significant political effects. While working on a book on the inland fish of California in the 1970s, Moyle took advantage of the DFG’s surveys, often riding along in their boats. At the time these surveys still only picked up delta smelt incidentally, their primary mission at the time being the tracking of valuable recreational fish like striped bass. Moyle was struck with the delta smelt’s abundance and asked DFG for specimens that he would use to significantly advance the state of knowledge on the species.21 By the late 1980s, Moyle and his colleagues noticed a troubling decline in delta smelt numbers using data from those same surveys, and decided to file a petition to have the species listed as endangered. It was finally listed under the ESA in 1993. Moyle noted in a public lecture that he made the decision to file a petition as “the principal expert on the smelt at the time” and “felt it was [his] responsibility to let people know that the fish was in serious trouble.” In retrospect, he likened the policy influence of his work on the species to “stirring up an ants’ nest,” gesturing at the unforeseen controversies fomented by tracking a tiny fish.22 Notably, Moyle himself has reportedly “been threatened anonymously with violence for his role in listing the delta smelt as an endangered species” (Thayer 2003, p. 43). As Lakoff’s (2016a, pp. 244-247) analysis of the decades following the ESA listing of the delta smelt shows, the species has provided environmentalists and their allies with a credible proxy for the “onset of an event that is difficult to directly perceive or measure: the collapse of an ecosystem.” Because of its low fecundity (spawning only once yearly and dying afterwards) and its high sensitivity to currents, salinity level, and phytoplankton availability (all of which are impacted by the CVP and SWP pumps and upstream diversions) the decline of this once abundant species has been able to stand in as an indicator of the overall health of the Delta ecosystem. As a legal matter, the data showing a sharp decline in the species’ abundance over time has provided crucial evidence in support of its ESA listing, and has guided subsequent policy. In chapter two, I analyze the relationship between science and law, and how it has changed as the species has approached extinction. The delta smelt’s listing was widely viewed by environmental organizations as an opening to bend the state’s water policy in a more ecologically sustainable direction. This strategy— especially given that the delta smelt is such a small and otherwise obscure species—came at the expense of legitimating “fish versus jobs and communities” as a durable counter-frame and rallying cry for agricultural interests reliant on Delta flows and the generally conservative politicians that represent them (Alagona 2013, pp. 221-222). Some opponents sought to undermine the science itself. For example, a fraudulent academic paper circulated that called into question the prevailing taxonomy. It claimed that the delta smelt was in fact a non-native species introduced from Japan and therefore not worthy of ESA protections (a jumbled version of the story of DFG’s introduction of Japanese smelt, discussed above). After Southern California water interests invoked these dubious claims in their defense,
21 Interview, Peter Moyle, 26 September 2018. 22 Moyle’s petition was initially only sent to the state of California because he “had some inkling the petition would be controversial” and since “the California Endangered Species Act was a much weaker law than the federal act,” he “thought there would be more flexibility in dealing with the water controversies that seemed likely to follow its listing.” While this initial petition was rejected, “the following year the American Fisheries Society slapped a new cover letter on the petition and submitted it to the U.S. Fish and Wildlife Service and it became [ESA-]listed in 1993.” Moyle’s Plenary Lecture, Bay Delta Science Conference in Sacramento, California. 15 November 2016. 40 Moyle and colleagues responded with a genetic analysis that further solidified the delta smelt’s taxonomic status as a unique species native to California.23 In regulatory practice, since the early 1990s, the delta smelt has sat at the center of a complex series of attempts to reconcile the continued conveyance of water to agriculture and municipalities with the legally mandated protection of fish and wildlife. Instituted in 1994, the multi-billion dollar CALFED Bay-Delta Program (which would later be replaced by the Delta Stewardship Council) was created to coordinate the intersecting activities of federal and state agencies tasked with managing the Delta. One result was a program which attempted to throttle pumping in the Delta depending on the presence or absence of delta smelt (Lakoff 2016a, p. 244). After several years of relative stability, a sharp decline in delta smelt population in the early 2000s sounded the alarms that the extant approach was not working. Scientists recognize that the likely reasons for the species’ decline are multi-faceted and complex, although most relate to the historical transformation of the Delta for extractive ends. The pumps in the Delta, however, can be directly blamed for fish mortality because one can actually track how many fish are sucked into the pumps, or “entrained” (Lakoff 2016b). Section seven of the ESA stipulates that consultation with the FWS is required whenever an action a federal agency “carries out, funds, or authorizes (such as through a permit) may affect a listed endangered or threatened species.” Upon consultation, the FWS may issue a biological opinion in order to determine “whether an action will result in jeopardy.” This determination is made by considering the “baseline” status of the species (in this case, the delta smelt index) as well as “various effects – direct, indirect, interrelated, and interdependent – of the proposed Federal action” (United States Fish and Wildlife Service 2016). In 2004, the FWS issued a biological opinion in response to the Bureau of Reclamation’s proposed plan for the CVP and SWP which stated that it did not jeopardize the survival or recovery of the delta smelt. Given that this opinion was in discord with the consensus of environmental scientists and the interests of environmentalists, the Natural Resources Defense Council filed a federal lawsuit. The consequence was the momentous Wanger decision discussed earlier in this chapter, which resulted in “the largest court-ordered water diversion in California history” (Alagona 2013, p. 218), unsurprisingly fomenting significant opposition from those who relied on the southbound conveyance of Delta water. The revised biological opinion ordered by Wanger claimed that there was in fact a causal link between Delta pumping and the jeopardy of a listed species. It required that agencies adopt “reasonable and prudent alternatives” to their proposed activities, including more fine-grained tracking of delta smelt movement and adjusting the rate of freshwater flows to manage the salinity of the water in its critical habitat (Lakoff 2016a, p. 251). Protests followed. Emblematic is a 2009 Wall Street Journal editorial which lamented the “Man-Made Drought” that constituted a “green war against San Joaquin Valley farmers.” Citing a petition with 12,000 signatures, the editorial called for the intervention of the so-call “God Squad,” a committee created by a 1978 amendment to the ESA that allows for exemptions to the law under “economic emergencies, such as the one now parching California farmers” (Wall Street Journal 2009). Such calls reached the highest levels of government. The aforementioned testimony by Congressman Nunes decried the human costs of protecting a “stupid little fish,” as he pleaded with his colleagues in the House for relief for his constituents who rely on Delta flows (Clarke 2014). The irony of Nunes’ pronouncement is that much like those of his
23 Interview, Peter Moyle, 26 September 2018. See also: Tranham, Shaffer and Moyle 1998. 41 opponents, his position as a politician groomed to serve the interests of southern Central Valley agricultural interests reliant on Delta flows was made possible by the very transformation of human-nonhuman relations that resulted in the delta smelt’s emergence as a taxonomic entity and object of environmental concern. The nearby Westlands Water district, the nation’s largest and most economically productive agricultural water district, was formed in 1952, the year after the Delta pumps switched on for the first time. The powerful constituencies that Nunes and fellow Central Valley politicians are beholden to owe their very existence to the same historical act that was responsible for the delta smelt’s taxonomic objectification. Water districts affected by the Wanger decision counter-sued, but after a series of appeals in 2014 the revised biological opinion was upheld (Lakoff 2016a, pp. 250-255). Even with the legal battle over the delta smelt temporarily settled, the species remains an important signifier for advocates and opponents to environmental protections alike. In appeals to the public, regional organizations like Restore the Delta deploy the species’ status as “an indicator of the health of the estuary as a whole …. somewhat like a caged bird in a coal mine that dies first if there are dangerous gases present that could kill miners” (Restore the Delta 2017). “Congress Created Dust Bowl” signs along the southern Interstate-5, and “Save the Delta” signs prevalent in the San Francisco Bay Area serve as reminders of the geographic, economic, and cultural divisions in the state that this conflict has reinforced. In chapter three I analyze how the legal interventions protecting the delta smelt overflowed into the public sphere. This analysis shows how the controversy took on a life of its own, disconnected from and disproportionate to the delta smelt’s actual impact on water policy.
A “Functionally Extinct” Species, a Living Controversy
Today, it is hardly novel to claim that hydraulic society killed the delta smelt. Surveys in recent years have yielded the lowest numbers of specimens in history, inspiring claims by experts that the species is “approaching the point of no return” and “functionally extinct” in the wild (Moyle 2015; Ruyak 2015; Quinton 2016). What is more surprising is that, in a different sense, modern hydraulic society produced the delta smelt in the first place. The delta smelt continues to be an object of intense scientific and legal scrutiny, possibly more than any other species in California (and even the United States) today. As a result of the struggles in which it was implicated, its objective status has been transformed once again. A multi-million dollar efforts to maintain a “refuge population” that mirrors the genetic properties of a dwindling wild population is but one node in an intricate network of actors working on the delta smelt as a “biosecurity” project: the preservation of genetic information in the face of looming extinction. The ultimate aim is the resuscitation of the species in the wild. Scientists, regulators and advocates are faced with complex ethical, legal, even metaphysical questions over the relationship between “natural” and “artificial” populations, and how to measure and promote ecosystem health in the face of a rapidly declining indicator species. In this context, the delta smelt has inspired academic proposals for a reappraisal of the very definition of extinction. These proposals in turn stoke debates among scientists, managers and policymakers over the metaphysical status of genetic lineages, and specifically what a species becomes when its only natural habitat has been so transformed as to be no longer hospitable to its members.24
24 Author’s field notes. Moyle, Peter and Jason Baumsteiger. “Assessing Extinction in Fishes: Preparing for Extinction of Delta Smelt.” Delta Stewardship Council Brown Bag Lecture, Sacramento California. 4 Aug. 2016. These problems are analyzed in further detail in chapter 2. 42 The delta smelt has also been a crucial touchstone in debates over the proposals to build $17 billion (or significantly more, depending on how one runs the numbers) tunnels (or more recently a single, but no less controversial, tunnel) underneath the Delta to “fix” the state’s conveyance system. One of the main reasons proponents argue that the tunnels are needed is to reduce the direct impacts of pumping water from the Delta on the delta smelt (Boxall 2016; Moyle and Hobbs 2017). The project would transform both the physical state of California’s hydraulic apparatus and of the political terrain on which future struggles over water and fisheries are fought. In addition to protests over the financial costs of the project and complaints that it will further entrench the state in an unsustainable relation to water, fights over the tunnels center on the correct balance between streamlining the state’s water conveyance system, and mitigation projects which would aim to “restore” the delta smelt’s habitat, and the Delta ecosystem at large. As a legal matter, these two “coequal goals” are framed as a harmonious whole. But the tensions between the constituencies they empower and the forms of knowledge they presuppose portend a continued struggle at the intersection of politics and science into the future which is likely to intensify with the specter of anthropogenic climate change. In this case, the subjects and objects of environmental political conflict were constituted in dynamic relation to one another. Without the technological interventions of the CVP and SWP — unprecedented interventions into the nonhuman environment — the most powerful actors in California’s political economy of water simply would not exist in anything like their current form. Farmers located in the Delta region (who have riparian rights to Delta water and generally prefer policies that restrict its extraction by others) and environmentalists would have tenuous grounds for a strategic alliance at best, and the movement to “Save the Delta” would have little basis. Today, organized residents of the Delta link this species’ fate to their collective interests, complete with the hashtag, #deltasmeltstrong (Restore the Delta 2018). The same shift in human- nonhuman relations that deeply configured many of these constituencies produced the very object of knowledge that has mobilized them in opposition to one another most fervently, facilitating new alliances and precipitating new relations to the nonhuman world.
Conclusion
This chapter has proposed a historical ontology of endangerment. Changes in concrete human- nonhuman relations — and specifically, the way that the nonhuman environment is instrumentalized — facilitate the emergence of new objects of environmental knowledge and potential concern regarding their endangerment. This knowledge in turn allows actors to make claims and form coalitions in efforts to transform the very human-nonhuman relations that produced it. In the case of the delta smelt, the emergence of a new taxonomic object and evidence that it was threatened with extinction empowered actors to make claims and form coalitions in a struggle over the future of modern hydraulic society. However, it was the very reengineering of California’s rivers for extractive ends that resulted in the emergence of this politically potent knowledge in the first place. The basis of environmental advocates’ credible claims was a direct product of the relation to the nonhuman environment they sought to transform. This chapter has contributed to our understanding of the historical constitution of nonhuman beings as objects of knowledge and how their objectification ‘loops back in’ to society with political consequences. Proponents of ANT have suggested that enrolling nonhumans into the social scientific enterprise implies treating humans and nonhumans “symmetrically.” This
43 chapter proposes an alternative approach based on a theoretical reflection on the specificities of human-nonhuman relations. It is concerned with the concrete social and material conditions under which knowledge of the nonhuman environment is produced, and how that knowledge reconfigures not only human-nonhuman relations, but also relations between humans. I have not claimed to exhaustively theorize historical ontology with references to the environment, much less nonhuman entities in general, but have specified one important mechanism operative in environmental political conflicts surrounding endangerment. Further research might propose others and further specify their scope conditions. The contribution points to one way of expanding the role of “materiality” or “the world of things” in the study of social institutions (Pinch 2008). According to this proposal, there is no need to abandon the wide-ranging insights of institutional approaches in order to account for the role of nonhumans in societal stability and change. Nor should researchers simply adopt prevailing scientific understandings of nature, side-stepping connections between the production of environmental knowledge and its mobilization. On the contrary, the case and approach show that relations between humans and the nonhuman environment should be of serious interest to scholars interested in the inter-relations between meso-level social orders (cf. Fligstein and McAdam 2012). Specifically, the mechanisms that link proximate or overlapping social fields include, not only rules, frames, alliances, or financial or political resources brokered at their interstices (Evans and Kay 2008), but also concrete human-nonhuman relations, and the modes of objectification that they enable, that implicate actors across multiple fields. The onset of modern hydraulic society did not merely affect the distribution of water, nor did the objectification of the delta smelt merely affect the field of fisheries science. Instead these changes reorganized relations between water and fisheries managers, biologists, environmental advocates, farmers, and the elected officials that represent them. The emergence of environmental objects of knowledge — enabled by a change in how the nonhuman environment was instrumentalized — facilitated meso-level transformations in collective subjectivity. This chapter also brings together the sociological study of environmental politics with the animating questions of science and technology studies. Whereas a social movements or social problems perspective focuses on science’s role of bringing legitimacy to the concerns of social entrepreneurs, this chapter shows that how the nonhuman environment is objectified is both determined by extant human-nonhuman relations and conditions the possible ways that knowledge of nature can be mobilized for political ends. The emergence of the delta smelt as an object of knowledge was not merely a socio-technical event. It was enabled by the politically contentious project of reengineering of California’s rivers, and it prefigured the terms of debate over the future of water policy and the contours of the very coalitions would compete for influence. With a global scientific consensus cementing around the narrative of the anthropocene, and growing evidence that our species is the driver of earth’s sixth great extinction, social inquirers have no choice but to confront the complex and sometimes surprising relationship between what we know about the nonhuman environment and how we collectively determine how to live in it. The case of the delta smelt lends new significance to Worster’s (1992, p. 63) observation that in California, one can see in its “sharpest detail … the process by which, in the remaking of nature, we remake ourselves.”
44 Chapter 2: Constructing Environmental Compliance
Abstract
Law and society scholarship demonstrates the crucial role of compliance professionals in the construction of law’s meaning. This chapter extends this literature into new terrain by conceptualizing scientists as compliance professionals in relation to environmental law. I provide a synthetic reconciliation of perspectives that view the science-law interface in terms of either hostile worlds or mutual constitution, arguing that the visions of nature immanent in scientific and legal fields can serve as the basis for several possible environmental compliance relations between science and law. The approach is developed via a thirty year historical case study of the delta smelt, a controversial and intensely studied endangered species. Three compliance relations became dominant at distinct junctures in the case’s history. First is aligned visions, a relation of coordination predicated on the construction of a boundary object between science and law. Second is judicial subordination, a relation of domination, associated with periods of acute crisis (and especially litigation), in which science serves as underlaborer to judicial reason. Third is contested visions, a relation of conflict associated with boundary object breakdown. I identify specific facilitating mechanisms for each compliance relation and theorize their dynamic relationship as a general process of constructing compliance amid acute environmental decline.
Introduction
Law and society scholars have shown that compliance professionals play a crucial role in the construction of law’s meaning. This research focuses on contexts in which compliance professionals are located inside regulated organizations (Edelman et al. 1999; Dobbin and Kelly 2007; Edelman 2016). In this chapter, I extend the scope of the sociology of legal regulation to contexts in which the most important professionals tasked with interpreting and operationalizing law are not creatures of regulated organizations or law. I do so by focusing on environmental law, a legal area which has yet to be studied intensively by sociologists.1 The U.S. Endangered Species Act (ESA), arguably the most powerful American environmental law, has seen a particularly low level of sociological attention (although see Rea 2017), despite warnings from scientists that life on earth has entered the “sixth great extinction,” and that this time humans are the cause (Kolbert 2014). In a world increasingly characterized by perceptions of environmental loss (Elliott 2018) and ecological instability (Tsing 2015), there is added urgency to understanding the science-law interface in the context of environmental governance. Identifying and responding to all significant environmental problems today involves an interface between law and science. Scientists, being experts who constitute legitimate understandings of “nature,” are indispensable in the application of environmental law. At the same time, science and law often view nature in markedly different ways. How is compliance constructed amid divergent assumptions about what nature is and the rightful ends of environmental conservation? To address this question, I investigate the interface between
1 Important exceptions include Rea (2017), Fourcade (2011), and Espeland (1998). Notably, the Law and Society Association has no collaborative research network dedicated to environmental law. 45 contemporary conservation science2 and the ESA through a historical and ethnographic case study of one of the most contentious endangered species in American history: the delta smelt. Existing research on the science-law interface is divided into two camps: those who subscribe to a hostile worlds view, which suggests that science and law stand in a relation of conflict or incommensurability, and those who prefer an alternative account which points instead to the mutually constitutive character of science and law. Both accounts contain important insights. However, the single case of the delta smelt demonstrates that science and law can stand in various relationships under different conditions, an empirical reality that strains attempts to pin down their essential relation. I argue for shifting the analysis away from the debate between the hostile worlds and mutual constitution camps while appropriating their insights. According to the approach advocated in this chapter, the most important analytical tasks are instead: identifying the various relationships between science and law; understanding the conditions and consequences of their emergence and decline; and theorizing changes in the character of the science-law interface over time. Specifically, I use junctures in the case of the delta smelt to show how lines of action across science and law take the form of three compliance relations, which are both analytically distinct, and processually linked in the construction of environmental compliance amid acute environmental decline. The delta smelt is a small endangered species of fish that lives exclusively in the center of California’s water system, and as of this writing is on the verge of becoming the first ESA-listed fish to go extinct. Its sole habitat, the Sacramento-San Joaquin Delta (“the Delta”), is the confluence of California’s major river systems, the largest estuarine ecosystem in the western hemisphere — one that is widely recognized to be in crisis — and the central node in California’s water conveyance system, providing water to “more than 27 million Californians as well as 3 million acres of irrigated farmland” (Maven 2013). ESA protections of the delta smelt have resulted in controversial reductions in water delivery to southern California cities and the U.S.’s primary agricultural hub, the southern Central Valley, mobilizing political actors in opposition at local, state and national levels. California Congressman Devin Nunes, for example, found it politically advantageous to dub the species “a stupid little fish” on the U.S. House floor (Clarke 2014). Impacted farmers decry a “Congress- created dust bowl,” holding signs with the words, “Don’t Smelt Our Economy.” Environmental organizations like the Sierra Club and Natural Resources Defense Council mobilize the delta smelt’s imperiled status for their own purposes. The regional advocacy group Restore the Delta claims that the species’ decline signals, not only an environmental crisis, but also of how authorities have forgotten about the Delta’s 500,000 human residents (Restore the Delta 2018). This chapter builds on a small body of historical and social scientific research on the delta smelt. Alagona (2013) provides a historical overview of the case and its political and legal stakes. Lakoff (2016a; 2016b) analyzes the techniques and values inherent in efforts to save the species including its status as an “indicator species,” which allowed the delta smelt to operate as “a sentinel for the declining health of the delta ecosystem more generally” (Lakoff 2016b). Scoville (2019) shows how the taxonomic classification of the delta smelt and knowledge of its decline were (ironically) a direct product of the reengineering of its habitat for extractive ends. The present analysis is complementary to these prior treatments, but it brings significant new empirical material to bear on broader questions that traverse sociological subfields.
2 “Conservation science” refers to expertise called upon to respond to environmental problems, especially conservation biology and restoration ecology. 46 First, this chapter contributes to the law and society literature on regulatory compliance by analyzing the role of professionals that are independent of regulated organizations and law, but are nonetheless integral to the construction of compliance. In so doing, it also provides a synthetic critique of the existing literature on the science-law interface, by highlighting an array of compliance relations and mechanisms that facilitate their emergence and sustainability. Finally, contributing to the intersection of science and technology studies, environmental sociology, and law and society, this chapter provides insights into how boundary objects are constructed at the interstices of legal and scientific fields to respond to concrete environmental policy problems, and how the breakdown of such boundary objects can transform the relationship between science and law. Taken together, these contributions suggest the outlines of an agenda for studying the science-law interface in an era increasingly marked by acute environmental instability and decline. Below I situate the chapter’s intervention within the existing literatures on legal compliance, the science-law interface, and broader sociological work on fields, nature as a social category, and boundary objects. I then describe my data sources and methods, and sketch the visions of nature embodied in the ESA and contemporary conservation science. I subsequently demonstrate how the ESA has pushed science to focus disproportionately on the delta smelt, despite conservation science’s increasingly ecosystem-centric vision of nature, tracking scientists’ role in three compliance relations. These findings are analyzed in typological and processual terms. I conclude with reflections on the science-law interface in the face of acute environmental decline.
Constructing Environmental Compliance
Environmental law cannot act alone. The text of the ESA itself makes this abundantly clear, with the statute mandating the use of the “best available science” in its application. But even this requirement does not tell the whole story of scientists’ implication in the construction of compliance to the ESA, which often goes far beyond the confines of “mandated science” (Salter 1988; Winickoff and Mondou 2017:8). Rather than focusing exclusively on the explicit statutory mechanisms that link science and law, I argue that the appropriate analytical starting point for understanding the science-law interface in the application of the ESA is to consider scientists’ various roles as what Edelman (2016:12-14) calls “compliance professionals,” actors who are tasked with “interpreting law and managing compliance.” In the context of the ESA, such tasks are multiple. No credible claim of an action’s status as compliant or in violation of the ESA is possible without some sort of input from scientists to operationalize the law’s concern for protecting endangered species. Scientists (whether working for government agencies, in academia, or in the private sector) are enrolled into listing and de- listing decisions, to assist in the design of policies devised by agencies to avoid litigation, to inquire into the legality of proposed actions and policies, and to help to determine the thresholds of compliance to the law’s explicit mandates in the context of litigation. One must of course distinguish the claim that scientists act as compliance professionals from the arguments made about compliance professionals most prominent in law society scholarship. This research is focused largely on labor and employment law (Edelman et al. 1999; Dobbin and Kelly 2007; Edelman 2016), thus raising the question of how the insights from one legal context can be transported to another that is very different. Because the ESA explicitly requires scientific input at multiple stages of its application, constructing environmental compliance is not a mere matter of performing “ideologies of rationality—the accounts, stories, and myths about how
47 organizations should respond to law” (Edelman et al. 1999:407). And because the science-law interface is so intrinsic to the ESA’s application, neither is it primarily a story of struggles over professional jurisdiction between scientists and legal professionals (Dobbin and Kelly 2007; Abbott 1988). While these prior accounts of compliance professionals are aptly theorized for their empirical contexts, they do not constitute an exhaustive treatment of the topic. I propose that analytically, one should not reduce the category of “compliance professionals” exclusively to those who officially hold positions as “compliance officers,” even if they are the most relevant compliance professionals in some legal areas. Rather, when studying the construction of compliance in a new legal domain, one should look to which actors on the ground are actually tasked with “interpreting law and managing compliance” (Edelman 2016:12-14). Put another way, I understand “compliance professional” as a role that is real where exercised, as opposed to an essential property of a predefined set of actors. In short, identifying compliance professionals in a new legal arena is an empirical question, not merely an analytical one. Extant work on legal compliance does provide important theoretical touchstones for any such intervention into a new legal area. A foundational contribution of research on compliance professionals is the concept of the “endogeneity of law,” understood as “a process through which the meaning of law is shaped by widely accepted ideas within the social arena that law seeks to regulate.” According to this thesis, the meaning of law is shaped by “compliance professionals within and around organizations” (Edelman 2016:12-14). In the construction of the meaning of the ESA, however, the relevant professionals charged with interpreting law and managing compliance — scientists with expertise on listed species and their habitats — are not mere products of law, and are largely located outside of regulated organizations, even if they are influenced by both. Thus, the construction of compliance to the ESA does not appear to be endogenous to regulated organizations in the same sense as compliance to American labor and employment law has been shown to be.3 Even if the legal endogeneity thesis cannot capture scientists’ role in the construction of compliance to the ESA, its core premises apply: law is inherently ambiguous, it does not self- enforce, and it tends to be written in broad terms (Edelman et al. 1999; Edelman 2016). Accordingly, extra-legal experts (i.e. compliance professionals) are required to construct and evaluate policies that claim to operationalize law’s general concern in particular cases. I argue that scientists assume this role in the context of environmental law, and I develop this specifically in the case of the ESA’s application to the delta smelt.4 But how? And in what sort of relation do science and law stand in such contexts? The law and society literature takes a bifurcated stance on the relationship between science and law, seeing them as either hostile towards one another or mutually constitutive. I review each perspective, then offer a synthetic reconciliation which can support a variety of compliance relations.
3 I do not claim to rule out the applicability of this approach to environmental law as a whole. For example, the legal endogeneity thesis may be more directly applicable in the context of environmental mitigation requirements imposed on developers (see: Lave 2012). 4 This case-based approach is an admittedly limited. The analysis of pollution control measures regulated by the Environmental Protection Agency, for example, would also require an investigation into the role of scientists in the construction of compliance, but my specific results can only be seen as a jumping off point for such a study, and not a precise parallel. 48 Two Views of the Science-Law Interface: Hostile Worlds and Mutual Constitution
One important source of conflict between law and science concerns standards for evaluating evidence. Legal reasoning tends to be deterministic, with probabilistic explanations prevailing in science (Gold 2013). A lack of scientific training can make legal professionals poor judges of expert testimony (Huber 1991). While a body of jurisprudence concerns the discrimination between admissible and non-admissible science in legal settings, it has been criticized for providing a means of excluding science from courts that is not applied to non-scientists’ claims (Tomaskovic-Devey 2011). Temporality is another dimension of conflict. The uneven pace of development between science and law can lead to a “cultural lag,” resulting in periods of “maladjustment” (Ogburn 1922). Science may be a “dynamic force of motion,” and law a “restrictive force of inertia” (Bodenheimer 1948:227). Science is “in a state of perpetual revision,” whereas legal decisions must be handed down, with “the principle of finality [arguing] strongly in favor of letting those decisions stand” (Cole 2017:444). Law typically presumes that environmental hazards can be ascertained prior to decisions, an assumption not borne out in scholarship on the production of scientific knowledge (Ottinger 2013). Conflicts may simply reflect differences between professional cultures. Such differences may be primarily linguistic (Klein et al. 2017), or manifest in values, incentive structures and decision techniques, and characteristic biases (Shuck 1993). For example, science’s commitment to “progress” may come up against law’s emphasis on “process” (Goldberg 1994). An alternative perspective sees, not incommensurability between science and law, but mutual constitution. This may involve the “co-production” of law and science, meaning that scientific developments “slice into settled social relationships and compel a redefinition through law,” enlisting courts “into an interactive process of social and technological change” (Jasanoff 1995:19). The emergence of new regimes of governance, and especially attempts to impose cross-jurisdictional standards, can bolster legal and scientific authority in concert (Winickoff and Bushey 2009; Quark and Lienesch 2017). Mutual constitution can also turn on the “ideological power” (Silbey 2005) of one domain to shape the other. Scientific trends can shape the ways in which the legal profession understands its objects of concern (Kahn 2017). Alternatively, legal developments can shape scientific research agendas and generate professional opportunities for scientists (Stryker et al. 2012). Specific to the environmental context, Espeland (1998) illustrates the constitutive power of environmental legal reform, and how it can empower certain versions of scientific rationality over others within organizations, with significant implications for the balance of power in broader social conflicts.
Toward a Flexible Synthesis
Rather than choosing between the hostile worlds or mutual constitution theses, I propose a framework that is open to various possible relationships between science and law in the construction of compliance including coordination, domination, and conflict. Developing this approach in the context of my case rests on the claim that conservation science and the ESA embody distinct visions of nature. I understand visions of nature to be a specific type of institutional logic (Friedland and Alford 1991; Thornton, Ocasio, and Lounsbury 2012; Haveman and Gualtieri 2017) immanent in legal and scientific fields, which are distinct, yet overlapping
49 (cf. Evans and Kay 2008; Fligstein and McAdam 2012). I associate different relations between scientific and legal visions of nature with distinct compliance relations. As the hostile worlds view suggests, contending ways of seeing and approaching nature contain the seeds of conflict, but such differences can be bridged, albeit in ways that the existence of specific facilitating mechanisms predict. Drawing on the broad contributions of field theory (Fligstein and McAdam 2012), and Edelman’s (2016) account of legal compliance as a construction at the intersection of legal and organizational fields, I argue that environmental compliance is constructed at the intersection of legal and scientific fields. Fields are meso-level social arenas in which “something is always at stake” (Fligstein and McAdam 2012:217). What is at stake in the context of environmental compliance largely turns on what nature is, and how best to protect it. I conceptualize answers to these questions in terms of the visions of nature immanent to scientific and legal fields. I claim that these visions of nature are a particular type of institutional logic, which helps actors interpret what nature is and what should be done about it. An institutional logic can be defined as a system “of cultural elements (values, beliefs, and normative expectations) by which people, groups, and organizations make sense of and evaluate their everyday activities, and organize those activities in time and space” (Haveman and Gualtieri 2017:2; cf. Friedland and Alford 1991; Thornton, Ocasio, and Lounsbury 2012). Clemens and Cook (1999) use the related term, “schema,” to refer to the cultural dimension of institutions, drawing on work on institutional logics. Defined in this way, either term would be adequate for my purposes, but I use “logic” to avoid potential confusion, given that “schema” has recently taken on a somewhat different meaning in the context of culture and cognition studies (Wood et al. 2018). Visions of nature immanent in scientific and legal fields help actors orient themselves to the objects of conservation, and help them evaluate courses of action. Prior work on the interface between legal and extra-legal domains has similarly drawn on field theory and institutional logics. Legal fields and their domains of regulation may “have different core logics, or principles, that drive the field” (Edelman 2016:23). Work on the science-law interface in particular has focused on their distinct institutional logics (Stryker et al. 2012). If a vision of nature is a particular kind of institutional logic, what specifically is it made of? As the double-meaning of “vision” implies — the faculties of both seeing what is, and imagining a desired state of affairs — environmental protection rests on two sorts of claims. The first are constitutive claims about what exists, or what nature is in the first place. Here I draw on Goodwin’s (1994:606) analysis of “professional visions,” which makes a similar point in distinct legal and scientific settings, showing how members of a profession concretely “shape events in the domains subject to their professional scrutiny,” a process which ultimately “creates the objects of knowledge that become the insignia of a profession’s craft.” As I show below, the legal and scientific fields in question operate with different conceptualizations of what nature is and how it works. Second are normative (or alternatively “moral”) claims about how best to relate to nature. After all, the purpose of the ESA, and the impetus behind contemporary conservation science is environmental protection. Here I draw on Farrell’s (2015:35) conception of a “moral vision of nature,” which refers to “a bundle of practices, beliefs, and feelings … [used] to discern right and wrong, good and bad, desirable and undesirable, just and unjust about the natural environment.”5 Recent work in the sociology of morality suggests that normative and constitutive claims are
5 A similar focus on the cultural constitution of “nature” as a moral object has also been taken up by Espeland (1998), Fourcade (2011), Barnard (2016), and Bargheer (2018). 50 often predicated on one another (Abend 2014). As such, I understand the constitutive and normative dimensions of visions of nature as being intrinsically linked and not always neatly distinguishable (and indeed, this is also consistent with the above-discussed research on institutional logics).
Boundary Objects and Compliance Relations
Despite being markedly different (a claim that I substantiate below), the visions of nature immanent in contemporary conservation science and the ESA can sustain several distinct compliance relations. In line with the hostile worlds view that emphasizes the discordant temporalities of science and law (Ogburn 1922; Bodenheimer 1948; Stryker et al. 2012; Cole 2017; Ottinger 2013), over time the ESA and conservation science have moved further apart. This is largely because the science has changed more than the law. While there is some flexibility its interpretation (Rea 2017), in important ways the ESA’s vision of nature remains inscribed in a statute that is by nature of being a legal construction, largely static (Doremus 2010). Conservation science, on the other hand, has nothing analogous to a statutory anchor. As I show below, conservation science in particular has dramatically shifted its focus since the passage of the ESA. Yet because of their different social functions, science and law do not stand in relation to each other as equals. The ESA has been able to push scientists to focus disproportionately on certain endangered species, including the delta smelt. For all its power, however, law cannot determine conservation science’s vision of nature. Taken together, the claim that law pushes scientists to focus on certain questions and objects and cannot determine how it views nature provides the basis for several potential compliance relations. The first compliance relation involves forging of a space of compatibility between two fields with distinct visions of nature. This allows for a relation of coordination that I term aligned visions, a compliance relation closest to supporting the mutual constitution thesis. In this case, constructing a boundary object between science and law can potentially facilitate instrumental coordination despite different visions of nature. Boundary objects assist in the development and maintenance of coherence across fields by virtue of their qualities as “plastic enough to adapt to local needs and the constraints of the several parties employing them, yet robust enough to maintain a common identity across sites” (Star and Griesemer 1989:393). In its role as an “indicator species,” the delta smelt played the role of a boundary object, reconciling science and law’s visions of nature in the context of devising compliant policy. As both an endangered species and a reflection of the health of the Delta ecosystem, it facilitated coordination across the domains of science and law which avoided lapsing into conflict over the objects or ultimate ends of conservation. It is important to note that environmental law and science are both concerned with a specific type of object: those belonging to what we refer to as the “natural environment.” Even if there are different ways of carving it up, the constructions of environmental law and science remain indices of material nonhuman entities that exist outside of those constructions. While some approaches that seek to elevate the status of nonhuman “actants” have claimed to also require a radical renunciation of “the social” (Latour 2005), recent advances at the intersection of cultural sociology and science and technology studies show that the agency of nonhumans is often mediated by culture, institutions, and politics (Fourcade 2011; Jerolmack and Tavory 2014; Barnard 2016). In the case at hand, imperiled fish gain their social significance through legal and scientific visions of nature.
51 Research on boundary objects has tended to focus on how they are constructed or maintained (e.g. Bowker et al 2016; Kertcher and Coslor 2018). What happens when boundary objects break down? Just as the delta smelt facilitated coordination across legal and scientific fields, its decline reconfigured their relationship. In a second compliance relation, associated with periods of acute crisis (and especially litigation), science assumes the position of underlaborer to judicial reason. This is a compliance relation of domination that I call judicial subordination. Scientists involved in the construction of compliant policy are dominated by law’s overarching end, irrespective of incongruences between science and law’s visions of nature. As the species’ population plummeted, the constructed space of compatibility between science and law was dismantled. Whereas they had previously enjoyed the (constrained) status of partners in the policy formulation process, scientists were forced to bracket broader ecological concerns and were tasked with parameterizing the law’s overarching end. Science became enrolled in a narrowly epistemological role to answer a single question: what, precisely, had to be done to stop directly killing the fish? A third compliance relation emerged after this acute crisis, a relation of conflict that I term contested visions, one that closely resembles the hostile worlds thesis, due to the sometimes incommensurable commitments that govern legal and scientific fields. As the delta smelt has approached extinction, it has lost the ability to facilitate instrumental coordination between science and law, fomenting conflict between them. The disjuncture between science and law’s visions of nature is acutely visible in deliberations over the status and use of laboratory-raised fish, which may comprise the majority of the species’ remaining living individuals. While the ESA continues to push scientists to focus on the delta smelt, debates over the policy implications of their work call into question the very meaning of nature. Tracked historically, the case of the delta smelt illustrates the multiplicity of environmental compliance relations between science and law and suggests specific mechanisms that enable their emergence and sustainability. As I argue below, not only does the case serve as a proof of concept and provide the basis for a powerful typology for the analysis of environmental compliance relations, it also suggests a more general process whereby legal and scientific fields are drawn together and then apart via boundary object construction and breakdown in the context of acute environmental decline.
Data and Method
My empirical analysis is influenced by approaches that seek, not to test hypotheses, but to extend and develop theory by drawing on ethnographic and historical evidence (Burawoy 1998; Snow et al. 2003) to understand the conditions of possibility for credible claims and controversies (Epstein 1996; Eyal 2013). I follow the delta smelt for over thirty years, beginning with its emergence as an environmental problem. I engaged in a dialectical process of reading archival and secondary sources, engaging in observational field work, refining and expanding my analysis of documents, and triangulating and testing the validity of my interpretations and inferences with targeted expert interviews. I rely heavily on documents, including publications in science and law journals, policy papers, gray literature, and unpublished documents produced by organizations. Recurring themes in my fieldwork (discussed below) and historical background research raised questions about the relationship between science and law in the context of the case. I reviewed the scientific literature on the topic chronologically, initially referring to Google Scholar, searching for
52 relevant terms like “delta smelt” and “indicator species,” compiling and reviewing all relevant articles chronologically by year to capture the emergence and transformation of concepts, supplementally referring to Scopus and Web of Science. I triangulated between these and secondary sources to identify influential documents, piecing together historical narratives on the evolving relationship between science and law, snowballing beyond my initial sample with their references, official documents acquired through the websites of government agencies, online archives, and tips from informants. Although this constructed “data set” contains several thousands of documents, only sources used to substantiate specific claims are cited. Additionally, I used Google Scholar to compile global yearly counts of publications mentioning specific terms, as discussed below. I also rely on field observations and interviews conducted between 2015 and 2020. I sought out instances in which experts and decision-makers convened to discuss water and endangered species policy in California. I draw on approximately 160 hours of observation at conferences, symposia, public meetings, lectures and facility tours, 22 in-depth interviews between 30 minutes and 2.5 hours with individuals with first-hand knowledge of the case including scientists, legal experts, and policy practitioners, and many more informal conversations and correspondence with knowledgeable actors undertaken throughout the course of my observational research. Observations were usually conducted in quasi-public settings in which speakers were already being recorded. In some cases, I was able to access official recordings. In others, I audio recorded the events myself. I took field jottings and wrote up field notes after, referring to recordings as a validity check, and transcribing portions that were relevant to my research questions. I anonymize utterances from field observations unless transcripts or recordings have been published elsewhere. Interviews were used primarily to test the comprehensiveness and accuracy of my understanding of the case and to probe for further lines of inquiry. Quotations from interviews are attributed to individuals who consented to be identified. All quotations from observations and interviews have been validated with a recording.
Two Visions of Nature
The Endangered Species Act
The overarching end of the ESA is to prevent actions which directly contribute to the extinction of individual biological species. The law was enacted out of a concern for “vanishing” species, especially iconic animals like the bald eagle which represented the nation’s patrimony and the concerns of an ascendant modern environmental movement (Heise 2016). Several sections form the core of the ESA. Section 4 covers listing decisions. Section 7 requires federal agencies to consult with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service before they take actions that might impact an endangered species, and prevents them from “jeopardizing” species or “degrading” their critical habitat. Section 9 is what a legal professional in my observations described of as “the teeth of the Endangered Species Act.”6 It specifies prohibited actions, the most important being “take,” meaning, “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, [a listed species] or to attempt to engage in any such conduct.”7 Sections 10 and 11 spell out exemptions and criminal penalties.
6 Delta Smelt Culture Program Event. Davis, California, 18 May 2017. 7 16 U.S.C. §1531 et seq. 53 Despite several congressional amendments (Goble et al. 2005; Alagona 2013), the ESA reflects the cultural context of its inception. First are attributes common to the American legal tradition. Species are treated as moral individuals, granted rights analogous to those bestowed upon persons by deontological theories of justice. The protection against extinction resembles a negative right, a “prohibitive policy” (Yaffee 1982) along the lines of the Kantian “categorical imperative” or the biblical commandment, “thou shalt not kill.” The ESA rests on the assumption that what is ultimately best for nature is to be left alone (Doremus 2010:206), and that the threshold at which law should be concerned about nature is when actions “endanger” the prospects of a species’ future existence. This is not the dominant mode of environmental conservation globally. As Heise (2016:96) points out in her comparative analysis of biodiversity law, rather than “focusing on species at the moment they are already endangered conservation laws in many parts of the world target the preservation of biodiversity in general, and endangered species conservation forms part of this broader goal.” The ESA also reflects the historical context of its inception. Doremus (2010:175) argues that the ESA embodies a “static vision of nature,” which is out of step with contemporary scientific views, but that was more plausible at the time of the law’s passage. This owes in part to the “static structure is typical of law in generally, which has traditionally embodied the human search for stability,” but also to the fact that “scientific understanding was itself in transition as the law was being crafted, moving from a focus on the tendency of ecological systems to approach equilibrium to one on the ongoing dynamics of many systems.” This static view of nature is evident in the law’s conception of “species,” and the presumption that management actions will not alter evolutionary trajectories into the future. This can result in privileging concerns about the genetic purity of “natural” populations over maintaining biodiversity as such, and creating conservation conundrums over hybrid species and the introgression of “wild” and “domesticated” variants of the same taxonomic group (Doremus 2010), or of in situ and ex situ populations (Braverman 2015). The ESA also embodies a static view of habitat, built on the assumption that “in the absence of human action habitat will remain stable, and therefore will continue to support species” (Doremus 2010:208-209). This view is grounded in an equilibrium conception of ecosystems, colloquially referred to as the “balance of nature” view, which is in conflict with prevailing non- equilibrium conceptions ecosystems as complex, dynamic and interconnected, as well as the concrete realities posed by anthropogenic climate change (Doremus 2010:226-229).
Contemporary Conservation Science
Contemporary conservation science is inevitably more heterogeneous than a single statute and its interpretations in case law. Broad claims about the consensus of practitioners are aided by the significant body of work which criticizes the ESA from its perspective. The overarching end of conservation science is the promotion of the health, functionality, or resilience of ecosystems. Conservation scientists remain extremely concerned with the accelerating rate of extinctions caused by human activities. However, this concern is grounded in a holistic, dynamic view of nature, and a radically different form of moral reasoning than that embodied in the ESA. Conservation biology and restoration ecology blossomed in the 1980s and 1990s, after the passage of the ESA. These fields share a concern with “the long-term viability of whole systems” (Soulé 1985:727). Conservation scientists often assume the role of “crisis managers who ply the full array of biological organization from gene to ecosystem” (Wilson 2000:1). This active stance
54 is grounded in the view that “communities and ecosystems possess traits such as health and integrity, that they exhibit an organic development, that their ‘health’ can be injured or harmed and then can be restored through informed efforts of ecologists” (Davis and Slobodkin 2004:1). Contemporary conservation scientists favor a non-equilibrial view of nature, which does not presume a tendency toward stability, and rests on the recognition that how we operationalize concepts like “health” will inevitably be “strongly influenced by human needs, values, and goals” (Briske et al. 2017:212). Figure 2.1 uses Google Scholar data to illustrate this shift in how scientists have conceptualized nature since the passage of the ESA, furthering the gap between science and law’s visions of nature.8 The top pane shows that the use of “wildlife,” a generic conservation term, “species,” a generic biological term, and “climax community,” associated with the ESA’s “balance of nature” view, have been fairly static since the law’s passage. The bottom pane shows a dramatic increase in the usage of terms associated with contemporary conservation science’s vision of nature.
8 To calculate normalized prevalences, I first collected total yearly number of documents indexed by Google Scholar containing a search term from 1970 to 2015. To adjust for changes in the total amount of scholarship over time, I divided the raw counts by the total number of reported entries in Google Scholar by year. Because I am interested in change over time, not differences between terms, I normalized yearly quantities by the total for the entire range for each search term. 55 Figure 2.1: Normalized Publication Prevalence Over Time. Source: Google Scholar
Conservation scientists have offered a litany of critiques of the ESA, the most common being that the ESA focuses disproportionately on individual species at the expense of overall biodiversity. Not only do they claim that ecosystem function is a worthy goal in itself, they argue that ESA’s “‘emergency room’ approach to biodiversity conservation,” which only protects 56 species when they are nearing extinction “expends inordinate effort and resources on a few species that, by the time they are finally listed as endangered or threatened, may be too far gone to save” (Rohlf 1991:273). Ecologists have also criticized the ESA for implicitly treating all endangered species equally, regardless of their function within an ecosystem, or taxonomic distinctness (Carroll et al. 1996). The tension between the single-species focus of the ESA and the ecosystemic vision of contemporary conservation science is palpable in the Delta. The ESA has pushed scientists’ substantive focus toward the delta smelt. If conservation science operated as an autonomous field, one would expect that the increasingly ecosystemic visions of conservation science would result in a substantive focus on ecosystems in particular studies, and of placing studies of individual species in relation to ecosystems. However, while the Delta is home to “roughly 50 species of fish and close to 300 species of birds mammals, and reptiles,” (Lund et al. 2010:1) one particular species has received a tremendous amount of scientific attention. As Peter Moyle, the foremost expert on the delta smelt remarked, “one of the main interesting things to emerge from this [ESA] listing was an information explosion on smelt. The rarer the fish has become, the more we have studied it.”9 Figure 2.2 shows a spike in publications mentioning the delta smelt following its ESA listing in 1993, followed by a precipitous increase over time. The number of publications mentioning the delta smelt vastly outnumber the publications mentioning the “Sacramento-San Joaquin Delta ecosystem” (and the alternative “California Delta ecosystem”), which only became an object of intense scientific scrutiny in the 2000s. Figure 3 also includes the term, “delta ecosystem” which includes references to all “delta” ecosystems globally. Even with many irrelevant inclusions (e.g. the Mississippi and Niger river deltas), the delta smelt is mentioned in slightly more publications than all mentions of “delta ecosystem” worldwide (2,744 versus 2,568). To investigate this further, I manually reviewed all 240 documents indexed in Google Scholar mentioning “delta ecosystem” published in 2015, and found that 83 (35%) referred to the Sacramento-San Joaquin Delta. I replicated this analysis for the year 2000, and found that 13 out of 60 (22%) mention the Delta, and for 1985, finding that neither of the two articles mentioning “delta ecosystem” for that year do. This suggests that, whatever lexical variations exist, studies mentioning “delta smelt” vastly outnumber studies that mention the ecosystem in which it is embedded.
9 Bay Delta Science Conference. Sacramento, CA, 15 November 2016. 57 Figure 2.2: Publications Over Time. Source: Google Scholar
Beyond disagreements over the relative priority of species and ecosystems, another source of tension between science and law pertains to the notion of causality implied in the ESA’s execution, if not the statute’s structure. Whereas conservation scientists operate with a stochastic understanding of causality which presupposes a high degree of uncertainty, “decisions involving conservation of threatened and endangered species often ignore or discount uncertain threats to these species or use the existence of uncertainty to justify inaction” (Rohlf 1991:279). Relatedly, a species-centric approach can often blind decision makers to the interrelated fates of species, some of which may not meet thresholds for listing (Boyd et al. 2014). Whereas the model of moral reasoning in the ESA is deontological, bestowing rights to species as moral individuals, contemporary conservation science more closely resembles a perfectionist model of moral reasoning, oriented toward a telos of ecological health. If the rights bestowed upon species by the ESA are negative, the distinction between interdictions and positive actions is not operative in contemporary conservation science. Contemporary conservation science’s holism can be interpreted as bestowing upon ecosystems a positive right to flourishing, with priority given to the most important, vulnerable or unique functions. Table 2.1 schematizes these two visions of nature, delineating the core substantive and normative claims that they imply.
58 Table 2.1: Two Visions of Nature
Law: The U.S. Endangered Contemporary Conservation Species Act Science Substantive Claims The Priority of Entities Individual species are Ecosystems are conceptually conceptually prior to prior to individual species ecosystems Temporality Static equilibrium view of Dynamic non-equilibrium view nature of nature Causality Deterministic notion of Stochastic notion of causality causality Normative Claims Prevent actions which Promote the health, contribute to the extinction of functionality, and/or resilience Overarching End species of ecosystems
Ecological functions or Delineation of Moral Taxonomic distinctions distinctness delineate moral Concern delineate moral concern concern The most important, vulnerable Delineation of Moral Species nearer to extinction or unique ecosystem functions Priority deserve greater protection deserve the most protection Deontological model of moral Perfectionist model of moral Model of Moral Reasoning reasoning (take prohibition as a reasoning (health as a telos) “categorical imperative”) Species are bearers of negative Ecosystems are bearers of Rights and their Bearers rights positive rights Prohibitions from harm and Relation Between Prohibitions from harm and obligations to help are not Prohibitions and obligations to help are categorically distinct Obligations categorically distinct
Aligned Visions
While the scientific and legal visions of nature are distinct, they are not irreconcilable. The compliance relation that I call aligned visions was facilitated by the delta smelt’s constitution as an “indicator species,” which could serve as a boundary object between science and law. The construction of this boundary object owed both to the species’ biophysical characteristics, and to the political context surrounding its endangerment. It filled this role in the constructed space of compatibility of the CALFED Bay Delta Program (“CAL” as in California, and “FED” for the
59 federal government), or simply “CALFED.” The program allowed for instrumental coordination across scientific and legal fields around concrete policy objectives aimed at reconciling environmental conservation with ongoing water delivery. Below I show how the delta smelt assumed this status only after it was ESA-listed (even though indicator species is not a legal concept) and how it became imbued with policy significance in the context of CALFED. Aligned visions became dominant as a compliance relation through a political impasse that forced state and federal government cooperation in the face of the credible threat of disruptions in water conveyance. CALFED was initially heralded as an end to California’s famed “water wars,” an appraisal that is no longer commonsense. Nonetheless it constituted a significant reorganization of power in environmental governance in California, including a more capacious role of scientists to weigh in on policy matters. As one scientist involved in the process explained, “the goal was to pick out those things that were not topics of contention” and to use the significant allotted funds to support the Delta ecosystem in ways other than reducing flow to water users.10 The flip side of this arrangement was that CALFED’s ultimate failure to stem the decline of the delta smelt set the stage for the program’s dissolution and the next (less cooperative) phases in the construction of compliance.
What is an Indicator Species?
First, a brief excursus is required to explain what it means to claim that a species is an “indicator,” and its relevance to the science-law interface. The indicator species construct originated, not out of autonomous scientific activity, but out of attempts to operationalize environmental law. A wave of U.S. federal environmental legislation passed from the mid 1960s to 1980 provided the administrative impetus for sharpening the existing tools for measurement and assessment. As part of the National Science Foundation’s expansion into the realm of applied research (NSF 1994), it funded a 1971 “Indicators of Environmental Quality” symposium aimed at developing indicators capable of “defining our present position” and “selecting positions we wish to attain on any logically established scale of environmental values.” The resulting volume includes the first published discussion of “indicator species” as proxies for environmental quality (Thomas 1972:vii-2). The indicator species construct was first deployed in the U.S. Fish and Wildlife Service’s “Habitat Evaluation Procedures” (HEP) beginning in 1980 (Landres et al. 1988), and the U.S. Forest Service’s “Management Indicator Species” beginning in 1982 (United States Forest Service 1982). It circulated internationally and was used in scientific studies environmental quality contamination (e.g. Newman and Schreiber 1984). However, in line with broader shifts in conservation science, in the late 1980s and early 1990s, scientists increasingly problematized assumptions of neat correspondence between environmental quality and individual species. With a consensus in the scientific community mounting that “[s]pecies collectively may be best served not by a species-by-species approach” (Noss 1991:229), two puzzles emerged. First is the question of the appropriate procedure for constructing indicators of ecological conservation objectives (Cairns et al. 1993; Dufrêne et al. 1997). Second is the problem of reconciling the conservation objectives privileged by laws like the ESA with the ecosystemic concerns of conservation science (Noss 1991; Ruhl 1993). The delta smelt’s ability to play the role of a boundary object between science and law required that both puzzles be resolved. It came to be understood as accurately reflecting the assessment of broader conservation objectives preferred
10 Interview, Bruce Herbold, 27 September 2018. 60 by scientists, and it provided an effective means of reconciling the substantive concerns privileged by the domains of law and science, facilitating meaningful collaborations around policy design. This, however, only came about in a particular institutional context forged in the face of the threat that the delta smelt’s legal status posed to California’s water distribution system.
Constructing a Boundary Object
By the late 1980s, experts were expressing concern over declines in native fish populations in the Delta. In 1989, Peter Moyle submitted a petition to list the delta smelt under the California Endangered Species Act. Although it was initially rejected, the delta smelt was eventually listed under the federal ESA in 1993. By the early 1990s Moyle and colleagues were placing the decline of fish populations in relation to broader perceptions of ecological decline. Pointing to the Delta, they described fishes as “appropriate indicators of trends in aquatic biodiversity because their enormous variety reflects a wide range of environmental conditions” (Moyle and Leidy 1992:127). They also noted the tension between the fact that “causes and solutions are typically treated on a species-by-species basis” and the increasingly palpable sense that “entire local faunas are in trouble, and consequently community and ecosystem-level approaches are needed for conservation” (Moyle and Williams 1990:276). However, the delta smelt was not explicitly referred to as an indicator species in print until it was under consideration for ESA listing. The first academic publications to refer to the delta smelt as an indicator species were written by legal experts, not biologists, analyzing the policy implications of the its ESA listing (Lockareff 1993; Houck 1995). Much as with the emergence of the indicator species construct itself, the species’ status as an indicator congealed in an attempt to operationalize the law in the face of conflicting policy imperatives. The 1987-92 drought exacerbated declines in fish populations, reduced water quality in the Delta, and curtailed urban and agricultural water deliveries. A resultant standoff between the Clinton administration and the State of California finally culminated in a collaborative agreement among “over 25 federal and state agencies and representatives of more than 30 major stakeholder groups and local agencies” called the Bay-Delta Accord in 1994 (Kallis et al. 2009:632).11 Reflecting on this period, a senior scientist at the California Department of Water Resources told me that the genesis of this collaborative outcome owed largely to the fact that water users had a “gun to their head,”12 given the impending implications of the ESA, a condition that came to be known as “a smeltdown” (Hacking 2005). The stated goal of CALFED, the resulting collaborative management program, was “to improve California’s water supply and the ecological health of the San Francisco Bay/Sacramento-San Joaquin River Delta” (CALFED 2007a). Evaluating progress toward policy objectives required the construction of indicators. In 1995, workshops were held to identify problems subsumed under each of CALFED’s objectives, and to discuss proposed indicators. A synthesis document describes CALFED’s “ecosystem approach to fixing habitat problems in the Bay-Delta ecosystem” which “entails addressing the underlying causes of ecosystem degradation through protecting, enhancing, and restoring important habitats.” However, since underlying causes themselves cannot be directly observed, the document specifies that:
11 Alagona (2013) provides a detailed analysis of these events. 12 Interview, Ted Sommer, 10 October 2018. 61 …individual species and species communities residing in the Delta or Bay will be used as health indicators to judge the success of the CALFED Bay-Delta Program in resolving habitat problems. The evidence shows that better habitat generally leads to more abundance of species. For example, recovery of populations of resident species (e.g. Delta smelt) and anadromous species (e.g. Chinook salmon) that use the Delta would indicate that improvements to Delta habitats had been successful (CALFED 1995).
Subsequent workshops were held with the aim of further clarifying conservation objectives and indicators. A white paper prepared for an October 1995 workshop begins with the acknowledgement of the “great deal of effort [that] has been expended by a variety of agencies and individuals in attempting to protect, restore, enhance, and analyze the San Francisco Bay- Delta estuarine ecosystem,” but suggests that “[t]he ultimate goals of all this activity have never been stated very clearly.” Because any ecological restoration effort is predicated on a conception of “ecosystem ‘health,’” the author argues, “the objectives of restoration actions should be to improve the status of the ecosystem in terms of indicators of ‘health.’” Good indicators, the author continues, are “attributes that are measurable, scientifically defensible, and interpretable,” and measures of “the abundance of species” are among the best performing across these criteria. Further, “abundance of a threatened or endangered species” is a particularly strong indicator because it “can be interpreted (at least in principle) in terms of the numbers required to eliminate danger of extinction” (Kimmerer 1995). These principles were reflected in the policies eventually adopted (CALFED 1996). The “Ecosystem Restoration Program Performance Indicators Coordination Team” was convened from 1999 to 2000 “to recommend a suite of program performance indicators for the CALFED Ecosystem Restoration Program (ERP) in the Bay-Delta System” (Pawley 2000:1). The first goal of the adopted suite of indicators was to address “Endangered and Other At-risk Species and Native Biotic Communities,” including the delta smelt, which, due to its annual lifecycle and particular sensitivity to environmental conditions was deemed “critically important for management decision-making … to reduce conflict with maintaining a reliable water supply” (Pawley 2000:67). CALFED documentation explicitly states that the delta smelt’s status as an ESA listed species was the primary reason for it adoption as an indicator. Two specific measures were adopted: an “adult abundance index” used to “describe trends in delta smelt abundance levels,” and “the duration of the spawning window” used to “report information about trends in the suitability of the environment for delta smelt reproduction” (CALFED 2003b:6). To evaluate CALFED’s performance, precise quantitative abundance and distribution criteria were adopted to place the indicator species in relation to overall progress toward ecological restoration. Because CALFED’s underlying aim was to find conservation solutions that would avoid costly shutoffs of water to the southern half of the state, a major emphasis of the program was simply to identify and purchase land in and upstream from the Delta for ecological restoration. Among CALFED’s most concrete (and lasting) legacies consist in the acquisition of “more than 130,000 acres of habitat targeted for important species” to be “enhanced, protected, or restored” (CALFED 2007b:1). Although the actual process of “restoration” has taken longer than many expected, much of the ongoing habitat work in and around the Delta is built on the foundation laid by CALFED.13 A second accomplishment of CALFED, as Lakoff (2016:248) notes in his analysis of the case, was the development of “new techniques and knowledge practices were invented to adjudicate between ecological needs and consumer demands” for water. An important example was the Environmental Water Account (EWA) program, which was calibrated and evaluated
13 Interview, Bruce Herbold, 27 September 2018. 62 using the delta smelt indices. Official documentation describes the EWA as an “approach to fish protection [that] requires the acquisition of alternative sources of project water supply, called the ‘EWA assets’ that are to be used to augment streamflows, Delta outflows, to modify exports, to provide fishery benefits, and to replace the regular project water supply interrupted by the changes to project operations” (CALFED 2003a:1). Essentially, CALFED purchased water and strategically released it to meet the needs of fish. Crucially, the EWA emerged, not as a reaction to a court order or agency regulation, but, “when one stakeholder scientist wondered ‘What if there were a water agency for the environment?’” so that it would be possible to provide “water for fisheries exactly when and where it was needed” (Connick and Innes 2003:190). It was devised to use the best scientific expertise available to go above and beyond what was formally required by the law to avoid lawsuits or the need for additional regulations. Although the first few years of CALFED’s operations were marked by optimism, delta smelt populations began to decline precipitously in 2002, suggesting that despite the efforts, the program was not working, and by 2005, the collapse of several fish species populations in the Delta became known as the “pelagic organism decline.” That same year, the “Little Hoover Commission,” California’s independent oversight agency, published a review of CALFED’s progress that year which began with the line: “CALFED was forged from a crisis, and to a crisis CALFED has returned.” To substantiate this claim, the review juxtaposes two facts: first that approximately “$3 billion have been spent trying to fix the Delta,” and second that “the Delta smelt that some consider to be the estuary’s coalmine canary are even harder to find than stakeholders who are willing to put up their own money to continue funding CALFED” (LHC 2005). The report marked a low point in CALFED’s legitimacy, leading up to its dissolution in 2007. What is important for the purposes of understanding science’s role as a compliance profession in this case is not an appraisal of CALFED’s efficacy, but how science and law interacted in this policy context, one that represents the emergent paradigm for managing environmental problems globally. CALFED opened up a space of compatibility between science and law’s visions of nature, by subsuming compliance with the ESA under broader ecosystemic goals, insofar as they were compatible with maintaining reliable water conveyance to the southern half of the state.14 It is in this sense that the seeds of CALFED’s opposite were sowed in its inception. The outcome that the program was tasked to avoid — significantly disrupting the flow of water to farms and cities — was categorically off the table as a management option, because “CALFED was rooted in the belief that the Bay-Delta can be re-engineered and controlled to the limit to satisfy competing needs” (Kallis et al. 2009:640). While scientists were empowered to an extent that was unusual in the context of resource management at the time (Taylor and Short 2009), they faced significant limits owing to the political conditions of CALFED’s mandate: the maintenance of California’s extractive relationship to water. Against this constraint, the legitimacy of a large scale experiment in collaborative environmental governance would come to rest on the performance of an indicator in free fall. The indicator species became, not merely an evaluation of ecological health, but of CALFED itself. A result of the delta smelt’s decline would be a new compliance relation between science and law.
14 There is a significant technical and policy literature on CALFED. Dutterer and Margerum (2015) provide a meta-analysis. 63 Judicial Subordination
While CALFED was facing a legitimation crisis sparked by the delta smelt’s decline, the Bureau of Reclamation’s operations plan for California’s water conveyance systems was making its way to federal courts. The result was a judicial determination of non-compliance. This would ultimately precipitate a new phase in science and law’s relationship in the context of the delta smelt case characterized by judicial subordination: the domination of science by the overarching end of law. In the context of a judicially determined ESA violation, scientific knowledge would be enrolled to answer a much more precise question than those underlying CALFED: how, should California’s existing water delivery system be operated in order to avoid directly killing the delta smelt? Section 7 of the ESA requires federal agencies to consult with regulating agencies before they take actions that might impact an endangered species, and to “insure that any action authorized, funded, or carried out by such an agency … is not likely to jeopardize the continued existence” of a listed species or destroy of adversely modify their habitat. In contrast to the role of participating in the design of policies pursuant to the ESA as in the case of moral alignment, in this context, science’s role is more narrowly epistemological, with compliance hanging on the use of “the best scientific and commercial data available.” Assuming that a listed species is present in the project area, the regulating agency (in this case, the U.S. Fish and Wildlife Service), undertakes a biological assessment. If this assessment determines that the proposed project is likely to affect a listed species, the agency initiates what is called a “formal consultation,” which “culminates in issuance by the Service of a biological opinion as to whether the proposed action is likely to jeopardize the species or adversely modify its critical habitat” (Doremus et al. 2012:330). The delta smelt has been the subject of four biological opinions. While these administrative documents are grounded in scientific data, they can be challenged in court. The first three resulted in “no jeopardy” determinations, meaning that pumping could proceed as planned. However, pelagic organism decline shifted the balance of power away from proponents of the uninterrupted extraction of water from the Delta, toward environmental advocates looking to curtail it. When the National Marine Fisheries Service and the U.S. Fish and Wildlife Service concluded that the Bureau of Reclamation’s 2005 plan for water conveyance did not jeopardize the species, the Natural Resources Defense Council and Pacific Coast Federation of Fisherman’s Associations filed suit. The result would be known as the “Wanger Decision” of 2007, which “constituted the largest court-ordered water diversion on California history” (Alagona 2013:218). Others offer detailed analyses of the events surrounding the lawsuit (Alagona 2013; Lakoff 2016a). Here I focus on science’s role as an underlaborer to legal reason, showing how a relation of judicial subordination came to eclipse the relation of aligned visions instantiated in CALFED. The earliest significant instance in which the delta smelt’s ESA-listed status directed scientists to focus on the compliance of water pumping activities was the formation of the “Delta Smelt Working Group.” The working group is composed of scientists from regulated and regulating agencies and was created in 1995 for the purpose of operationalizing the first biological opinion associated with the delta smelt. Working group scientists analyze “the most current data available on delta smelt and physical conditions in the Delta” in order to provide “real-time recommendations to the Service regarding modifications of project operations” (Thompson 2007).
64 While the working group initially operated alongside CALFED’s collaborative ecosystem management approach, the double-crisis of CALFED’s dissolution and the Wanger Decision would make judicial subordination the dominant relation between science and law beginning in 2007. Contrary to the logic of coordinating compliance in the face of satisfying competing needs, Oliver Wanger, Judge of the U.S. District Court for the Eastern District of California argued that because Congress had “struck the balance in favor of affording endangered species the highest priorities,” it was “up to the political branches of government, not the court, to solve the dilemma of dislocation created by the required application of the law” (quoted in Alagona 2013:218). Wanger’s interim remedial order halted pumping in the Delta for 10 days in December 2007. He then ordered increased monitoring of the delta smelt, coupled with pumping restrictions that would stay in place until the issuance of a new, compliant biological opinion. The epistemological basis for this order was “a seven-day evidentiary hearing” meant to “determine what interim remedies to impose” (Wanger 2007:2). Expert scientific testimony was used to determine if the extant biological opinion was consistent with the requirements of the ESA.15 Wanger ultimately determined that the answer was no. The new biological opinion released in 2008 determined that pumping would in fact pose a threat to the continued existence of the delta smelt and damage its critical habitat, and enumerated “Reasonable and Prudent Alternatives,” or “RPAs” to the proposed operational for the state and water projects. The 2008 biological opinion contained five “RPA components,” which remain in place as of this writing. The first three are the most crucial, and concern pumping activities. They are concerned with the protection of adult, larval and juvenile delta smelt from “entrainment,” the actual sucking up of fish into the pumps which extract water from the Delta. The third RPA component involves adjusting pumping in order to manage salinity levels throughout the Delta that are needed for delta smelt to develop and reproduce. The fourth and fifth RPA components mandate a modest habitat restoration program and additional monitoring and reporting (FWS 2008:279-285). At over 400 pages, writing the biological opinion itself required the mobilization of a significant amount of scientific expertise, much of which was generated during the CALFED era. As Ziaja and Fullerton (2015) point out in their legal analysis of the case, the court’s ability to set deadlines, define ecological thresholds, and dictate how to deal with uncertainty also positioned the court as a “science manager.” However, once the new policy was in place, scientists found themselves with a narrowed task in the context of managing compliance: adjusting the parameters associated with the effects of the operation of pumps on the species.16 In particular it gives the Delta Smelt Working Group the responsibility to consult on flow requirements and action triggers associated with RPA components one and two, a process rationalized via the “Delta Smelt Risk Assessment Matrix,” a tool used to “assist in evaluating the need for operational modifications of [State Water Project] and [Central Valley Project] to protect delta smelt” (FWS 2008:31). Figure 2.3, created by the U.S. Fish and Wildlife Service, visualizes the formal role of the Delta Smelt Working Group’s role (referred to as “SWG”) in carrying out the ESA’s protections of the species in the form of a complex decision tree. Here,
15 See Ziaja and Fullerton (2015) for a legal analysis of how the science was evaluated in this case. 16 While habitat restoration requirements played a secondary role in the biological opinion, the State of California has more recently voluntarily sought to ramp up restoration efforts under the moniker of the “Delta Smelt Resiliency Strategy” (CNRA 2018), an approach that builds on CALFED’s accomplishments and appears to aim for aligned visions between law and science. Challenges include the scarcity of the species in the wild and lackluster collaboration from the Trump administration. I discuss this jurisdictional fragmentation in the conclusion. 65 rather than collaborators in the invention of new compliant policies, we see science’s role formalized as the supplier of parameters to existing regulated operations.
Figure 2.3: Science Parameterizes Law’s Overarching End. Source: U.S. Fish and Wildlife Service (Nobriga et al. 2013)
Reflecting on the period following the Wanger Decision, Jeffrey Mount (2011), a retired academic geologist and prominent water policy professional, referred to Judge Oliver Wanger pejoratively as “The Chief Scientist for the Delta.” By this he meant that Wanger “became the arbiter of scientific disagreements,” despite not being a scientist himself. Mount and other scientists were critical of the subordination of science to law because they viewed judges as unqualified to make decisions that rested on scientific knowledge, particularly in a context in which “combat science,” was used to “support pre-existing legal and political positions,” at the expense of agency science that supports sound long-term decision making exemplified by CALFED. I have pointed to the compliance relation that makes Mount’s complaint intelligible. In contrast to scientists collaborating in the policy design process in a constructed space of compatibility, the events surrounding the Wanger Decision were characterized by the subordination of science to law’s substantive value. Bruce Herbold, a former Environmental Protection Agency scientist, reflected on the CALFED period as exemplifying “science in the service of management.” Referring to the lead up and aftermath of the Wanger decision, he remarked that “the Fresno lawsuit poisoned a lot of that.”17
17 Interview, Bruce Herbold, 27 September 2018. 66 As Ted Sommer, Lead Scientist at the California Department of Water Resources, told me, the resultant emphasis on “just preventing fish losses” became “a bit of a black hole for a lot of the energy both on resource management and science.”18 Scientists were forced to bracket their broader concerns to focus narrowly on the questions that the ESA privileges, a role that they are often uncomfortable or unsatisfied with, given the tensions between the science and law’s visions of nature. Scientists recognize that pumping restrictions, while important, are not sufficient to save the species. However, pumping is the primary problem that the ESA can address in the context of litigation, given that it can be shown to directly kill fish.
Contested Visions
As the legal crisis receded and the new biological opinion went into effect, tensions between the scientific and legal visions of nature came to the surface. The dissolution of CALFED and the Wanger Decision undermined the constructed space of compatibility between science and law. In the resulting vacuum, a new compliance relation emerged in which the delta smelt’s role shifted from an object of instrumental coordination to contestation between science and law’s visions of nature. Experts acknowledge that the delta smelt is no longer an indicator species for a simple reason: it’s “just about gone, so it doesn’t indicate anything.”19 Figure 2.4 presents the “delta smelt indices,” measuring its abundance over time. Recent observations hover near zero. “Ironically, the best indicator species today, at least among the fishes,” Moyle recently pointed out, “are non-native striped bass and American shad. They are still abundant enough to be measurably sensitive to environmental change at fairly short time [and] spatial scales” (quoted in Levy 2018). Bridging the concern for ecosystem health and endangered species conservation is no longer a straightforward matter of aligning instrumental action across law and science with the appropriate indicator. The delta smelt is no longer a boundary object between science and law. In the wake of boundary object breakdown, contested visions became the dominant compliance relation.
18 Interview, Ted Sommer, 10 October 2018. 19 Interview, Peter Moyle, 11 September 2018. 67 Figure 2.4: “Delta Smelt Indices.” Source: California Department of Fish and Wildlife.
The situation is further complicated by the fact most of the remaining delta smelts in existence live, not in the estuary, but a laboratory. The Fish Conservation and Culture Laboratory (FCCL) operates with $2.5 million in annual federal funding, the principal impetus behind which is the ESA. Its delta smelt operation is “widely regarded as the most sophisticated fish breeding program in the nation” (Krieger 2015). Every one of the many thousands of fish produced at the FCCL each year is tagged with an identifying number and a fin clipped for DNA sequencing in order to determine which individuals will be bred to optimize the genetic diversity of the refuge population. According to the FCCL director, the facility currently houses “a healthy captive population of about 250,000 delta smelt of all age groups” (quoted in Sahagun 2019). The question of if or when genetically managed, laboratory-raised fish will actually be released in the wild remains unsettled. As of this writing, experimental net pens of laboratory-raised delta smelt have been placed into strategic sites in the Delta for experimental purposes, a preliminary step which itself took years of deliberation to reach agreement on among scientists and regulators. Disagreements over the implications of conducting a fully fledged reintroduction program hang on conservation science and the ESA’s disparate visions of nature. In September 2016, at the height of a historic drought feared to represent a final blow to the delta smelt, I joined representatives of California’s water management agencies to peer into the tanks to view the contentious species and learn about its captive reproduction. After prodding about the operating cost of the facility and its funding sources, one official from a Southern California water district reliant on Delta water interjected to express doubt over the expediency of the whole enterprise:
They could be the canary in the coal mine, no doubt about it. But […] at some point we have got to say, hey man, they’re dying, they’re not doing it. Put ‘em back out like we do with the bass, like we do with the other ones […] But then if you don’t want to do that then you basically have to ask yourself, is this species supposed to go extinct and we’re keeping it alive, right? So how do we get to the point where we make the decision?20
20 FCCL tour, September 2016. 68 One interpretation of the water district official’s frustration is that it was a simple reflection of his interest in smooth water conveyance to his constituents. Just months before, several Republican presidential hopefuls visiting California in the lead-up to the state’s 2016 primary disdainfully invoked the delta smelt during campaign events to signal their solidarity with agricultural constituencies. Among them was Donald Trump who asserted that “there is no drought,” and that “they’re taking the water and shoving it out to sea,” in order “to protect a certain kind of three-inch fish” (Colvin 2016). Yet the water official’s concern the raises a deeper question. Why maintain a captive “refuge population” at all without a clear plan to release the fish into the wild? What tour participants were not told is that the original mission of the FCCL was purely diagnostic, and fully consistent with the delta smelt’s role as a boundary object between science as law. Initially funded by CALFED, the founding mission of the FCCL was to develop “a method for the culture of this environmentally sensitive species was considered and approved in 1992 as a way of providing a supply of smelt for research without further diminishing the natural stock” (Baskerville-Bridges et al. 2000:24). The goal of this experimentation was to better understand the species’ lifecycle to contribute to conservation policies. The delta smelt’s precipitous decline resulted in a change in the mission of the FCCL that placed it in tension with the species’ status as a boundary object between science and law. In 2008, given warnings of extinction, FCCL managers began “working collaboratively with the Genomic Variation Lab on the UC Davis (GVL, UCD) Campus and with US Fish and Wildlife Service (FWS) to initiate a delta smelt refugial population” (Baskerville-Bridges and Lindberg 2008:3). Whereas its original focus was to contribute to a policy-relevant knowledge base, the lab’s new mission was actuarial. The refuge population took on the role of a “a hedge against extinction in the wild” (Moyle and coauthors 2016:20), a “life insurance policy” for the species,21 or as one of my tour guides at the FCCL put it, “biosecurity.” The problems associated with introducing captive-raised fish into the wild provide a window into significant and consequential differences between the scientific and legal visions of nature. First, while the ESA is concerned with preventing wild extinction, there is no legal mandate to reintroduce captive-raised fish. However, within the domain of conservation science, the distinction between prohibiting harms in the wild and reintroducing captive individuals is immaterial. Second, law and contemporary conservation science are both concerned with the threats of domestication — the process by which captivity transforms organisms or lineages — but they provide different conceptualizations of that threat, each of which privilege different responses to the problem of wild extinction. As I show below, these sources of contestation between science and law have inspired proposals from scientists to rewrite the law in ways that are consistent with their own vision of nature.
The Prospect of Reintroduction
Introducing captive-raised fish into the wild is inconsistent with the delta smelt’s status as an indicator species — and a boundary object between science and law — because the introduction of laboratory-raised fish into the wild would make the species’ abundance and distribution a function, not merely of ecosystem health, but also of artificial propagation. Accordingly, the pivot to reintroduction (or alternatively, “artificial supplementation”) has opened up new lines of conflict between science and law. In my observations of discussions of various pathways to
21 Interview, Ted Sommer, 10 October 2018 69 supplementing wild delta smelt populations with laboratory-raised fish, scientists were palpably frustrated with the law’s conservative stance regarding reintroduction. During a panel discussion on the topic featuring policy officials and legal experts, one biologist stood up and emphatically remarked, “we’re at the point where it seems, from a regulatory perspective, it’s much easier to just let them go extinct.”22 This frustration might be interpreted as an innovative and experimental scientific ethos clashing with an inefficient bureaucracy. However, the conflict points to a more essential difference in the scientific and legal visions of nature. Let us consider how the ESA views reintroductions. Recall that the ESA presupposes that what is best for nature is to be left alone. This normative stance is most clearly on display in the ESA’s primary focus on “take” prohibitions, which are enumerated in section 9 of the law. The take prohibition operates like a broad negative right afforded to listed species. One legal professional I observed quipped that “essentially anything you do besides just thinking about a species, probably amounts to take.”23 The implication, then, is that introducing captive-bred delta smelts into the wild is illegal. Fortunately for proponents, the ESA has provisions that allow for reintroduction. However, there is no legal mandate to do so, only exemptions to the take prohibition applied under stringent conditions. As Doremus (1999:2) observes, reintroductions proceed “on an ad hoc, project-by-project, basis,” and as a consequence such efforts tend to focus “on charismatic species that enjoy strong popular support, and on species that can survive on federal lands remote from most economic activity.” In these terms, the delta smelt is placed at a disadvantage. This deference to public opinion and political economic interests sets it apart from the ESA’s take prohibition and reveals what reintroduction policy is: a nonessential and discretionary loophole. There are two primary legal pathways for reintroductions, one premised on keeping reintroduced populations separate and distinct from wild populations, and another which treats reintroduced individuals together and the same as wild ones. Section 10(j) of the ESA deals most explicitly with reintroductions. Its topic is “experimental populations,” which are “wholly separate geographically from nonexperimental populations of the same species.”24 The language of this provision betrays the terrestrial bias of the ESA and its emphasis on static populations. In practice it has been interpreted to allow for mingling between populations, using a geographical “species zoning” approach (Cheever 2001). Although proposals have been floated by scientists, the experimental population approach appears unlikely to be workable for the delta smelt, and has yet to be taken up by significant stakeholders. This owes to the difficulty of assigning species zones to fish living in connected marshlands that move with tides, and because the delta smelt is also listed under the California Endangered Species Act, so a change in state law would be required in order to proceed, due the lack of analogous provisions.25 An apparently more feasible approach is provided in section 10(a)1(A), which allows for permitting acts “for scientific purposes or to enhance the propagation or survival of the affected species.”26 As a legal scholar describing this permitting process to scientists and policy professionals explained in my observations, individuals reintroduced under this provision are
22 Delta Smelt Culture Program Event. Davis, California, 18 May 2017. 23 Delta Smelt Culture Program Event. Davis, California, 18 May 2017. 24 16 U.S.C. §1539 25 In a panel discussion, state and federal officials and an environmental law scholar agreed that 10(j) was not the preferable route for delta smelt reintroductions (Delta Smelt Culture Program Event. Davis, California, 18 May 2017). 26 16 U.S.C. §1539 70 “considered part of the wild population and they’re afforded the full protection that any wild individual would be.”27 Contrary to the logic of separateness and distinctness at play in section 10(j), section 10(a)1(A) is premised on togetherness and sameness. It is especially in this context that domestication becomes a potential legal problem.
The Problems of Domestication
Despite efforts to maintain a genetic profile in the laboratory that mirrors the wild population, the specter of domestication hangs over the whole project. The FCCL requires a constant input of wild fish. While they are formally permitted to collect up to 100 per year, dwindling wild populations have resulted in an increasingly precarious link between the laboratory and the estuary. As FCCL director Tien-Chieh Hung explains, in addition to the computationally assisted selection of mates, they “compare the genetics of the wild and refuge fish to make sure we’re not too far off” (quoted in Meadows 2016).28 The distinct problems that domestication poses for the ESA versus conservation science reveal important differences between their visions of nature. Domestication is a taxonomic problem for the ESA. The law assigns protections to individual organisms based on their membership in a “species” which, in the language of the statute, “includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.”29 Taxonomic conflicts are a frequent source of litigation associated with the ESA because they concern which biological entities receive legal protections (Doremus 2010:188). One taxonomic problem associated with captive-breeding is hybridization, the interbreeding of different species or populations with distinct legal statuses. Although not currently operative in the case of the delta smelt, it clarifies the stakes of domestication under the ESA. As legal scholar Irus Braverman (2015:165) puts it, hybridization is understood as “a threat to the purity of endangered species because of their capacity to interbreed with each other, thereby diluting or eliminating the ‘original’ gene pool.” A second relevant legal taxonomic problem is the question of “split-listing” captive populations as separate entities from their wild counterparts. This issue brings us closer to the delta smelt because hatchery fish have consistently raised potent line-drawing questions regarding ESA protection. Courts have determined that ESA protection of captive populations can apply only when they “effectively [contribute] to the wild population, emphasizing that a hatchery program managed without consideration of its conservation effects could also negatively impact the determination of conservation status” (Braverman 2015:172). This suggests that wild and captive delta smelt populations are not likely to be listed separately. If released under a 10(a)1(A) permit, laboratory-raised delta smelts would be legally identical with their wild counterparts. Consequently, their release could impact ESA protections for the entire species. Ironically, this suggests that releasing FCCL fish into the wild would reduce the perceived need for other protective policies to save the delta smelt (including pumping restrictions). As one conservation biologist working on the delta smelt suggested, “all of a sudden, [the agencies will] think we just have a healthy population and we can just pump at will.”30 In a counterintuitive twist, even though the ESA privileges the policy of leaving nature
27 Delta Smelt Culture Program Event. Davis, California, 18 May 2017. 28 A senior U.S. Fish and Wildlife Service official confirms that the permit is only for “genetic refugium” and is not permitted to release fish. 29 16 U.S.C. §1532(16) 30 “Assessing Extinction in Fishes: Preparing for Extinction of Delta Smelt.” Sacramento, California, 4 August 2016. 71 alone, its species-centric vision of nature may provide a pathway for reliance on captive-raised populations into perpetuity. This problem plagues hatchery-based conservation (Braverman 2015:173). In the delta smelt case, it was raised in observations and in interviews by scientists who were nonetheless advocates of reintroduction because of the direness of the situation in the wild. I return to this issue in the conclusion of this dissertation, in relation to the Trump administration’s recent attempts to rewrite the regulations governing water in California. While the ESA views take prohibitions and affirmative actions like reintroductions as categorically distinct, the vision of nature of contemporary conservation science has little concern for the distinction between interdictions against harm and positive efforts to restore ecosystems. Instead of dwelling on taxonomic questions, the science centers on the fitness of captive-raised populations for survival in the wild, and their ability to perform the ecological functions of wild populations. According to Moyle and coauthors (2016:19), the problem posed by the FCCL is that laboratory conditions, by their very nature “eventually result in domesticated smelt, best suited for survival inside the hatchery rather than outside of it.” For this reason the scientists I observed and spoke with tended to favor experimenting with reintroduction as early as possible to avoid producing fish that would be ill-suited to survive in the Delta, as opposed to actors on the regulatory side who were extremely risk averse with respect to reintroduction. More generally, the dichotomy between “captive” and “wild” enshrined in applications of the ESA is somewhat misleading from the perspective of conservation science. Evolutionarily, a laboratory is simply an extreme habitat modification. Scientists are quick to point out that the present-day Delta is itself highly modified, a “novel ecosystem.” This suggests that while reintroduction may serve as a stopgap measure to prevent the global extinction of the species, its long-term recovery would require alterations to the Delta that closer resemble the habitat that it is evolutionarily equipped to live in, a twist in the original logic of using the species as an “indicator” for ecosystem health. Unfortunately this approach is beyond the scope of the ESA, given the law’s focus on prohibiting actions that directly harm endangered species. If my argument thus far holds, pursuing such an approach would require mustering the conditions for sustaining aligned visions.
Science Problematizes Law’s Substantive Object
Clashes between science and law’s visions of nature have spurred proposals from scientists to reformulate the law’s very substantive object: the avoidance of extinction. In contrast with coordinated instrumental action across the domains of science and law, scientists working on the delta smelt have begun openly reflecting on their own vision of nature to imagine a legal conception of extinction consistent with it. Jason Baumsteiger and Peter Moyle’s “Assessing Extinction” (2017) is an attempt by conservation scientists to clarify the moral stakes of the delta smelt’s current situation and the limitations of the law, culminating from years of discussion on the topic.31 The authors point out that the problem with the legal understanding of extinction is that it is dichotomous: “Either a species is gone from the Earth, or it is not.” They propose the concept of “gray extinction,” which “brings to light the many ways that a lineage may already be ‘extinct’ to some degree,”
31 I draw heavily on the 2017 article, but I observed two talks on the topic in 2016 and significant discussion about the concept of extinction throughout the scientific and policy community after, and conducted two interviews with Moyle in 2018. 72 even if not legally recognized. This is not merely a scholastic contribution, they argue, but “has strong conservation implications” (Baumsteiger and Moyle 2017:357). Gray extinction responds to the problem (unrecognized by law) that species are not reducible to the mere existence of individuals, but are defined in by their evolutionary trajectories. The alteration of trajectories can occur at the level of individual lineages (as in the case of laboratory raised fish), or many lineages simultaneously (as in the case of reengineering the Delta or global warming). Systemic anthropogenic environmental change, Moyle and Baumsteiger (2017:358) argue, has resulted in a state of affairs in which “many species persist mainly at the sufferance of humans: in zoos, in culture, or in the wild in carefully regulated environments.” The law is of little help here because the ESA was “written to prevent extinction and therefore does not specify how to determine extinction.” Gray extinction is a concept with six ordinal levels and an accompanying “decision tree to document the transition of a lineage through these categories before reaching global extinction” (Baumsteiger and Moyle 2017:358). First, mitigated extinction includes “lineages that are largely maintained by artificial selection (lineage-specific effects), as well as to lineages subject to intentional hybridization or genetic modification … [including] conservation-reliant lineages that depend on continuous or intermittent human action to maintain viable populations.” Second, regional extinction refers to extinction in “a geographically or genetically distinct part of its native range.” Third is native-range extinction, which means a “lineage is no longer present in its native range but has been introduced as a ‘wild’ lineage successfully outside the native range.” Fourth, wild extinction refers to a lineage that “relies on artificial propagation for its existence[,] is maintained as captive populations in artificial habitats such as fish hatcheries[, and] may be reintroduced into the wild, but such populations are not self-sustaining.” Fifth, apparent extinction refers to a species has not been observed “despite significant efforts.” Finally, global extinction could be declared after a waiting period (Baumsteiger and Moyle 2017:360). Baumsteiger and Moyle (2017:364) explicitly note that the “initial impetus for [their] article is the possible extinction of delta smelt.” The species, they argue, illustrates “how extinction criteria can help managers decide on management goals,” and force us to ask a moral and political question that the law currently sidesteps: “What level of extinction is acceptable?” Being on the verge of wild extinction, given that the delta smelt’s generation time is a single year, the problem of domestication means that “the potential for successful reintroduction into the wild will diminish with each passing year.” Successful reintroduction could potentially place the lineage into the mitigated extinction category. Contrary to the legally identical status of wild and released laboratory-raised fish under a 10(a)1(A) permit, Baumsteiger and Moyle point out that a reliance on the FCCL would put the species “on a different evolutionary trajectory from wild ‘natural’ delta smelt, especially if the wild population was too small to allow for capture of individuals to supplement hatchery populations.” The failure of such a program would eventually result in global extinction, or extinction in the wild “if a domesticated population continued to exist, displayed in public aquaria” (Baumsteiger and Moyle 2017:364).32 Whereas CALFED had facilitated instrumental coordination across the domains of science and law, and the Wanger Decision had forced scientists to bracket their broader concerns in order to serve as legal underlaborers, scientists working on the delta smelt have increasingly
32 Notably, the first public delta smelt exhibit opened in 2019 in the Aquarium of the Pacific in Long Beach. Acknowledging that the “teensy fish” is not much to look at, the president of the aquarium justifies the exhibit as a kind of environmental morality play. Visitors, he explains, will “learn how the life cycle of the delta smelt is intertwined with the past, present and future of California’s food and water story” (quoted in Sahagun 2019). 73 encountered tensions between science and the law’s visions of nature. Their quasi-metaphysical reflections about the objects and ultimate ends of conservation claim to provide a template for future legislation compatible with conservation science’s vision of nature, rather than policies compatible with the ESA. They emerged, not out of armchair theorization, but from concrete and agonistic engagements with the law’s constraints after the breakdown of the delta smelt’s status as a boundary object between science and law.
Environmental Compliance Relations: Types and Process
Three Compliance Relations
Taken together the three compliance relations identified in this chapter (summarized in Table 2.2) provide conditional support for both the hostile worlds and mutual constitution theses of the relationship between science and law. The first environmental compliance relation, aligned visions, most closely resembles the mutual constitution view (Jasanoff 1995; Winickoff and Bushey 2009; Quark and Lienesch 2017; Stryker et al. 2012; Espeland 1998). It involves forging a space of compatibility between science and law. Here the construction of compliance centers on the constitution of a boundary object which is compatible with the visions of nature of both science and law. The case draws attention to two facilitating mechanisms which I hypothesize jointly sustain aligned visions. The first facilitating mechanism for aligned visions is political. Because the construction of a space of compatibility between science and law requires the investment of significant resources across jurisdictions, high and broadly shared political costs of non-compliance are more likely to facilitate alignment of science and law’s visions of nature. Environmental regulatory laws often function as limits on resource use. In the case of the delta smelt, the ESA’s credible threat of disrupting water delivery to millions of people (and powerful agricultural constituencies) served as a political impetus to facilitate cooperation over the long term recovery of native fisheries. Legal and scientific visions of nature became aligned in the shadow of potential lawsuits. Scientists aided in the policy design and implementation process to help avoid disruptive litigation. A second facilitating mechanism for aligned visions draws attention to the material conditions of possibility for environmental compliance relations: that is, the “active” capacity of nonhumans (cf. Latour 2005) that scientific and legal visions of nature both index. The object of concern must be — in this case, biophysically — robust enough to straddle the concerns privileged by the both science and law’s visions of nature. A policy instrument that is extremely sensitive or so degraded that its status no longer reflected the conditions of its environment would be too shaky a foundation to sustain the alignment of legal and scientific visions of nature. When it operated as a boundary object between science and law, the delta smelt was imperiled enough to merit ESA-listing, but robust enough to serve as an indicator to assess the success of a major policy framework. In contrast to aligned visions, judicial subordination is a relation of domination whereby science serves as an underlaborer to the overarching end of law, bracketing broader normative and substantive questions. In this relation, science is formally “mandated” by a judicial authority (Salter 1988; Winickoff and Mondou 2017:8). Judicial subordination combines the hostile worlds thesis’s focus on science and law’s distinct and often incommensurable forms of reasoning (Gold 2013; Huber 1991; Tomaskovic-Devey 2011) with the mutual constitution
74 view’s focus on legal imperatives shaping the focus of scientific research programs and careers (Stryker et al. 2012; Espeland 1998; Jasanoff 1995). The facilitating mechanism of judicial subordination is an acute crisis, and in particular, when litigants successfully challenge existing policy in court. As such, compliance is ultimately determined by judges and regulating agencies using extant scientific knowledge put narrowly in service of the ends defined by the law’s vision of nature. The delta smelt’s rapid decline precipitated the judicial intervention to prescribe policies targeted on barring direct harms to the delta smelt, irrespective of competing policy imperatives or the broader ecological concerns of conservation scientists. The result was that scientists’ primary role vis-a-vis the delta smelt became formalized as a way of adjusting parameters which would ensure that pumping actions in the Delta would not kill fish. Third is a conflictual compliance relation, contested visions, which is characterized by open clashes between the scientific and legal visions of nature. This relation resembles the hostile worlds view of the science-law interface in two principal ways. First, it draws attention to structural incongruences between science and law, given that scientific progression is unmoored from anything analogous to a statutory anchor, leading to a generic widening of the differences between science and a given law over time (Ogburn 1922; Bodenheimer 1948; Cole 2017; Ottinger 2013). Second, it draws attention to more specific substantive and normative differences in the visions of nature immanent in science and law, which come to the fore under conditions of boundary object breakdown. As summarized in Table 1, the ESA and conservation science have different substantive notions of temporality, causality, the priority of entities, and presuppose various normative claims about how to best protect nature (cf. Gold 2013; Doremus 2010; Goodwin 1994; Farrell 2015). Contested visions, as an environmental compliance relation, emerges when scientists attempt to participate in the policy design process in the absence of a constructed space of compatibility, i.e. the breakdown of a boundary object between science and law. Incompatibilities between ESA and contemporary conservation science’s visions of nature became acutely visible and consequential precisely when the delta smelt began to approach extinction in the wild. As it faltered as an indicator, the species’ ability to facilitate alignment between the visions science and law’s visions of nature eroded. Without a boundary object between science and law, scientists’ policy proposals face legal considerations and constraints that they agonistically bump up against, whereas formally compliant policy does not respond to the problems privileged by the conservation science’s vision of nature. In the case at hand, this has culminated in existential debates about the meaning of extinction and a proposal to change the law. This squares with prior research on environmental politics that demonstrates that intractable (and often morally saturated) conflicts surrounding nature often arise, not simply from differences in material interests, but when commensuration between different ways of appraising nature’s worth break down (Espeland 1998; Farrell 2015). This typology identifies three analytically distinct compliance relations, but in actually existing complex institutional settings, one can expect to find mixtures of these of these formulations with varying degrees of purity (cf. Weber 2017). This is an especially relevant point in the context of the U.S. federal system, where different jurisdictions are often not perfectly synchronized in their approach to environmental governance. Conflicts between the state of California and the federal government over water and endangered species conservation are a case in point. Scientists often play multiple roles in the construction of compliance at a given time, even as one compliance relation becomes more or less prominent in relation to others.
75
Table 2.2: Environmental Compliance Relations
Judicial Aligned Visions Contested Visions Subordination Partner in the design of policies Epistemological Agonistic struggles that meet or underlaborer to and existential Role of Scientists exceed the judicial reason questioning over the in Relation to Law requirements of (domination of rightful ends and the law (scientific science by law) objects of conservation creativity in the shadow of law) Science is A clash of enrolled to Avoidance of incommensurable Relationship pursue the conflict within a visions, with scientists Between Visions of overarching end constructed space problematizing the Nature of law, of compatibility ends and objects of bracketing its conservation own High, broadly shared political An acute crisis stakes of failure, sparked by The breakdown of a and a robust, yet litigation (policy constructed space of Facilitating declining, object is directed by the compatibility between Mechanisms of conservation judiciary science and law in the (policy is devised following a absence of litigation in anticipation of violation) potential legal action) Boundary object Boundary object Boundary object Processual Stage construction breakdown vacuum
Boundary Object Construction and Breakdown: A Processual Approach to Environmental Compliance and Environmental Decline
A typology of compliance relations moves beyond blanket characterizations of science and law’s essential relation, but the case provides the basis for an additional processual interpretation, which goes beyond the identification of types. The successive chapters of the case of the delta smelt illustrate that compliance relations are not merely distinct and independent units, but instead mark stages in a broader social process that may have applicability to other environmental crises more generally. Here I draw on Abbott’s (2016:ix) account of “processual sociology” as predicated on understanding the “social world [as] continuously in the process of making, remaking, and unmaking itself (and other things), instant by instant.” The transition
76 from alignment to subordination to contestation rested on the making and unmaking of the delta smelt’s status as a boundary object between science and law. The process documented in this chapter is thus the ongoing construction of environmental compliance — which intrinsically requires an interface between science and law — in the context of acute environmental decline. As the object of conservation (the delta smelt) collapsed despite the best intentions of scientists, managers and regulators, the relationship between law and science changed. Research on boundary objects tends to focus on how they are constructed maintained in spite of adverse conditions (e.g. Bowker et al 2016; Kertcher and Coslor 2018). The case at hand directs additional attention to the conditions and consequences of the opposite: boundary object breakdown. Put in more general terms — similar to those that have been theorized in the context of artistic fields (Dominguez Rubio and Silva 2013; Kobyshcha 2018) — the process exemplifies the work of attempting to reconcile field-level visions of a shared object of concern when “things are constantly falling out of place” (Dominguez Rubio 2016:60). I discuss the processual stages in terms of boundary object construction and breakdown below and provide a summary in Table 2.2. Stage 1: Boundary Object Construction in the Shadow of Law. As shown above, science and law were brought into alignment in the shadow of credible and costly threat of judicial intervention. Sustaining aligned visions required the construction and maintenance of a boundary object between science and law: the delta smelt as an indicator species. The case suggests that constructing spaces of compatibility between science and law is an inherently treacherous task in (increasingly) unstable environments. As suggest above, constructing the space of compatibility between science and law was possible under the conditions of a credible threat of costly judicial intervention and the sufficient robustness of a shared of object of concern. A boundary object between science and law was constructed in order to avoid a potential crisis, one that all interested parties were aware was potentially on the horizon. This implies an inherently delicate balance between environmental degradation and stability in order for a boundary object to be constructed and sustained. Stage 2: Boundary Object Breakdown and Legal Intervention. The stable pattern of collaboration across the fields of law and science was disrupted by a crisis that undermined the political and material conditions for alignment of the legal and scientific visions of nature. The precipitous decline of the species contributed to the breakdown of the constructed space of compatibility between science and law. Subsequent litigation further undermined their alignment by forcing scientists to bracket their broader substantive and normative concerns in favor of narrowly adjusting the parameters of the formal mandates of the law. The dissolution of the boundary object constructed in anticipation of crisis contributed to the realization of that very crisis. Stage 3: Managing Compliance in a Boundary Object Vacuum. If boundary objects facilitate coherence across fields with discordant visions of nature, their breakdown can lead to the loss of that coherence, and consequently a disruption in patterns of collaboration across domains. In the absence of a boundary object between science and law, practical questions over how to bring the species back from the brink of distinction are raised at the margins of legality, and even devolve into quasi-metaphysical debates about the ultimate objects and ends of conservation. Abstracting beyond the case, this analysis suggests that the material conditions of environmental decline and instability may serve to break down boundary objects at the intersection of science and law. Put another way, if the environments that law and science simultaneously have in view become increasingly unstable, the science-law interface may more
77 generally shift from resembling the mutual constitution thesis to hostile worlds. This does not mean that compliant policy is impossible in the face of decline. On the contrary, in the context of the case at hand, water projects continue to operate under strict regulation by the ESA irrespective of boundary object breakdown. But scientists’ broader proposals for addressing the underlying problems that they understand to have led to environmental decline are no longer straightforwardly aligned with the concerns prioritized by the legal vision of nature. In such a context, scientists increasingly play an agonistic role, pushing at the boundaries of compliance, rather than straightforwardly devising policy solutions within a constructed space of compatibility between science and law in anticipation of potential litigation.
Conclusion
Sociologists increasingly understand “nature,” not simply as the opposite of “the social” (cf. Latour 2005), but as an important social category in its own right (Espeland 1998, Fourcade 2011, Angelo and Jerolmack 2012, Farrell 2015, Barnard 2016, and Bargheer 2018). Yet one can find distinct answers to what nature is and how we ought to relate to it in the context of different social domains. Legally compliant environmental policy is constructed at the interstices of scientific and legal fields, yet law and science do not always see eye to eye regarding the objects and ultimate ends of environmental conservation. By tracking one of the most prominent endangered species conflicts over the course of three decades, this chapter has provided an analysis of how the distinct visions of nature immanent in scientific and legal fields are placed in various relations in the context of constructing environmental policy. Scientists, as actors who are given the role of operationalizing the concerns of the law, play a crucial role as compliance professionals in the context of environmental law. I have developed this point in the context of the ESA, arguably the most powerful environmental law in the U.S.. Whereas prior research on the science-law interface has tended to be organized into hostile worlds and mutual constitution camps, I have provided a flexible and synthetic alternative that draws attention to the conditions and consequences of specific compliance relations in the construction of environmental policy. Aligned visions, judicial subordination, and contested visions are both distinct types of environmental compliance relations, and markers in a generic process of constructing environmental compliance in the context of acute environmental decline. While the typological contribution of this chapter demonstrates the various possible roles that scientists can play in the construction of compliance, the processual interpretation of its findings draws out insights at the intersection of law and society and science and technology studies. Meso-level approaches to legal compliance in the field of law and society focus on the intersection of legal and extra-legal fields (Edelman et al. 1999; Dobbin and Kelly 2007; Edelman 2016; cf. Fligstein and McAdam 2012; Evans and Kay 2008). I have drawn attention to the critical role of boundary objects (Star and Griesemer 1989) between legal and scientific fields in the construction of environmental compliance. A sociological account of legal compliance under conditions of environmental decline requires acuity, not only to the common focus on how boundary objects are constituted and maintained (cf. Bowker et al 2016; Kertcher and Coslor 2018). Rather, as I argue above, it also requires attention to the phenomenon of boundary object breakdown and its relation to the science-law interface. I conclude with a problem for policy responses to the systemic environmental destabilization associated with the “sixth great extinction” (Kolbert 2014), climate change, and their correlates.
78 This chapter’s findings suggest that while these phenomena provide the impetus for significant activity at the interstices of science and, they may also degrade potential boundary objects between science and law to the point to where they are no longer robust enough to facilitate coordination across scientific and legal fields without a revision or reinterpretation of the law. The case of the delta smelt illustrates this paradox. Its initial listing provided the impetus for an unprecedented degree of coordination at the nexus of science and the ESA. Yet as it has approached extinction in spite of these efforts, tensions between science and law have become increasingly visible and salient. If the ESA was written for a static world composed of individual species, further systemic disruption may widen the gap between this legal vision of nature and the world that scientists study. The prospects for legal reforms bridging the gaps between the “dynamic world” of science and “static law” (Doremus 2010) appear to be slim given the widespread nature of climate change denial, which as of this writing is being enacted and perpetuated by the very actors charged with environmental protection at the federal level in the U.S.. Scientists who may otherwise have reasons to criticize the ESA’s static, single-species focus see in this anti- environmental agenda, a vision of nature, not merely in tension with their own, but separated by an unbridgeable chasm. How might the role of conservation scientists as compliance professionals change under such conditions? The case of the delta smelt provides two potential suggestions. One is increased fragmentation among jurisdictions owing to polarized environment politics. For instance, state agencies in California currently appear committed to bringing the delta smelt back from the brink of extinction beyond the formal requirements of the ESA. Yet the Trump administration has rolled out directives for maximal delivery of Delta water consistent with the ESA paired with proposals for defanging the law itself (Kasler and Sabalow 2018). As reflections from my interviewees working within state government since President Trump’s inauguration suggest, this implies a complex and often frustrating mixture of aligned and contested visions between science and law, depending on which stakeholders are at the table at the moment. A second possibility, as scientists’ calls for new legal frameworks may portend, is the increased political activation of scientists themselves. The recently formed “March for Science” is itself in part a response to a perceived refusal of governmental actors to respond to contemporary environmental crises. Whether this newfound figure of the scientist-qua-social- movement-actor will facilitate the enactment of policies in closer alignment with conservation science’s vision of nature or further exacerbate partisan polarization and gridlock to their detriment remains to be seen. In either case, I hope to have laid the ground for the analysis of what may prove to be an even more turbulent next chapter in the construction of environmental compliance.
79 Chapter 3: From the Water Wars to the Culture Wars
Abstract
In recent decades Americans’ attitudes about environmental issues have become polarized along partisan lines. While significant research demonstrates this broad trend, we know less about the meso-level processes that produce and sustain such divisions. Drawing on over 3,000 news articles, nearly 14,000 Tweets, and Google search data, I analyze the public sphere controversy surrounding the delta smelt, an endangered species of fish caught in the center of California water politics. Legal protections of the species have impacted water conveyance to farms and cities. Most observers view the controversy as a simple reflection of pre-existing interests. This explanation cannot capture the cultural appeal of the delta smelt to right-wing observers disproportionate to its modest impact on water policy. Offering an alternative explanation, I show that how the delta smelt became a means by which California’s “water wars” became enrolled into America’s “culture wars.” I show that the delta smelt is more meaningful for opponents to environmental protection than proponents, and for those outside California than inside of it. Next, I trace the controversy over time to show how skillful partisan elites articulated continuity between a narrow set of material interests and broader partisan identities which stand in symbolic opposition to liberal environmentalism by drawing on extant cultural, political, and geographic resentments. Finally, I show how the delta smelt’s unique symbolic power owes in part to its physical characteristics as an “uncharismatic microfauna.” By showing how the delta smelt became a symbol of partisan animosity, this study offers a processual and case-analytic complement to the burgeoning body of quantitative work on environmental partisan polarization.
Introduction
In scholarly and popular minds alike, water in California is synonymous with interest group politics. Roman Polanski’s classic 1974 film “Chinatown,” Donald Worster’s (1985) incisive Rivers of Empire, and Marc Reisner’s (1993) meticulously researched and vividly narrated Cadillac Desert are among the best examples of analyzing California water politics through the lenses of greed, instrumentality, power plays, and backroom deals. If “whiskey is for drinking, and water is for fighting,” and “water flows uphill towards money,” as conventional wisdom says, California’s recent endangered species conflicts that center on fish-protecting water restrictions are mere episodes in the state’s “water wars.” The delta smelt, a species that only lives in the center of California’s water system, is perhaps the highest profile example in this class. Its sole habitat is the Sacramento-San Joaquin Delta (“the Delta”), which is the confluence of California’s major river systems. The Delta is both the largest estuary in the western hemisphere and the source of water for more than 29 million people and 3 million acres of irrigated farmland (Water Education Foundation 2020a; Maven 2013). Because protections of the species have resulted in reductions in water conveyance to farms and cities in the southern half of the state, and because environmentalists strategically mobilize the Endangered Species Act’s powerful mandate to prohibit actions that contribute to the decline of listed species, constituencies on either side of the conflict appear to come ready- made, as do their interests. In this chapter, I argue that explaining the scope and nature of the controversy surrounding the delta smelt requires going beyond this genre of explanation. Instead, it commands attention,
80 not merely to the concrete material interests of actors on either side of the conflict, but even more importantly to how the delta smelt has been woven into broader symbolic divisions in society that are irreducible to an interest in water. Specifically, I show how legal interventions protecting the delta smelt from California’s water infrastructure were refracted through partisan divisions. The controversy then took on a life of its own, lending new national partisan significance to California water politics. In short, the delta smelt became a medium through which California’s “water wars” became enrolled into America’s “culture wars.” Research on American public opinion shows how environmental issues have taken on partisan significance rivaling “hot button” social issues like abortion. Unlike the period in which the flagship environmental laws that animate some of today’s most bitter partisan struggles passed with broad bipartisan support, environmental problems are increasingly mediated by polarized partisan identities. In this chapter, I show how legal protections of the delta smelt were skillfully exploited by conservative partisan elites. My central claim is that the delta smelt controversy is not merely a clash of pre-existing interests. Rather, the case reveals the role of political symbols in the articulation, reinforcement and maintenance of social divisions. The following section reviews literatures relevant to environmental partisan polarization, and argues for an analysis of symbols of partisan animosity in environmental politics. After reviewing my data sources and methodology, I ask if regulations protecting the delta smelt have caused significant reductions in the amount of water conveyed through California’s major water projects. Drawing on recently published work in conservation science, I show that the simple answer no, while discussing some important qualifications to this answer. This leads to the central empirical question of this chapter: Why is the delta smelt so controversial, despite its modest impacts on water conveyance in California? I address this question in three parts. First I show that the delta smelt is more meaningful for opponents to environmental protection than proponents, and for those outside of California than inside it. Second, I trace the controversy over time to show how skillful partisan elites articulated continuity between a narrow set of material interests and broader partisan identities, which stand in symbolic opposition to liberal environmentalism. Third, I show how the delta smelt’s unique symbolic power owes in part to its physical characteristics as an “uncharismatic microfauna.” By tracing how the delta smelt became a symbol of partisan animosity, this study offers a processual and case-analytic complement to the burgeoning body of quantitative work on environmental partisan polarization.
The Environment and Partisan Division
Environmental issues have not always divided Americans across party lines. Consider that the Endangered Species Act passed Congress nearly unanimously, and was signed into law enthusiastically by Richard Nixon in 1973. This was not a fluke. The same Republican President presided over the passage of other flagship environmental laws including the National Environmental Policy Act and created the Environmental Protection Agency. “The great question of the ‘70s,” Nixon claimed in his 1970 State of the Union address, “is shall we surrender to our surroundings or shall we make our peace with nature and begin to make reparations for the damage we have done to our air, to our land and to our water?” (quoted in Rothman 2015). The peace would not last. A mere two decades later, Patrick Buchanan would invoke the Nixon-era Endangered Species Act in an invective against “environmental extremists” in his
81 epoch-defining “culture wars” speech at the Republican National Convention. After admonishing against Bill Clinton and Al Gore’s status as “the most pro-lesbian and pro-gay ticket in history,” Buchanan (1992) seamlessly launched into the following warning about the dangers of installing an environmentalist in the White House:
You know, at that great big costume party they held up in New York, Mr. Gore made a startling declaration. Henceforth, Albert Gore said, the “central organizing principle” of governments everywhere must be the environment. Wrong, Albert! The central organizing principle of this republic is freedom. And from the ancient forests of Oregon and Washington, to the Inland Empire of California, America’s great middle class has got to start standing up to these environmental extremists who put birds and rats and insects ahead of families, workers, and jobs.1
Striking as the differences between Nixon and Buchanan’s words are (not to mention the similarities between Nixon’s and Gore’s), Buchanan’s declaration of “a war for the soul of America” marked the midpoint, rather the terminus of an important transition in American environmental politics. Since the 1970s, the Democratic and Republican party platforms have become more coherent and distinct, and voters have increasingly come to view those on the other side of the aisle with suspicion and hostility (Baldassarri and Gelman 2008; Iyengar, Sood, and Lelkes 2012; Hacker and Pierson 2014; DellaPosta, Shi and Macy 2015; Pew Research Center 2017; McCarty 2019). Yet in the face of this decades-long secular trend of partisan polarization, as recently as the early 2000s, significant bipartisan spaces of policy collaboration existed on climate change and green energy, even under Republican presidential administrations and in the “reddest” of states (Stokes 2020). Today climate change is as divisive among American voters as hot-button cultural issues such as abortion and gun control (Leiserowitz et al. 2019). A significant body of research demonstrates a trend of partisan polarization around environmental issues among ordinary Americans (Buttel and Flinn 1976; Dunlap et al 2001; Heath and Gifford 2006; Villar and Krosnick 2011; McCright and Dunlap 2011; Antonio and Brulle 2011; Dunlap et al. 2016; McCright et al 2016; Nisbet et al 2016; Mildenberger and Leiserowitz 2017; Pew Research Center 2017; Bolsen et al. 2018; Leiserowitz et al. 2019). Attitudinal changes in the American electorate are accompanied by a Republican Party platform that has become increasingly hostile to environmental regulation (Hejny 2018), and the strategic maneuvering of interests groups like fossil fuel companies in the policy design process (Stokes 2020). It is hardly surprising that those who benefit directly from extractive relationships to natural resources would oppose environmental protections. What merits further explanation is how ordinary partisans come to align their political identities with environmental regulation or retrenchment.
The Environment as a Culture War Object
Buchanan’s 1992 speech contains an important but underexploited clue to understanding environmental partisan polarization in America. Without discounting the importance of interest groups in shaping environmental policy (a point to which I will return below), I will argue that explaining the resonance of environmental problems in everyday life merits a careful look at how they have come to be enrolled into the “culture wars.” Doing so requires a specification of what
1 Later in the speech, Buchanan (1992) makes the connection to the Endangered Species Act more explicit: “There were the people of Hayfork, the tiny town up in California’s Trinity Alps, a town that is now under a sentence of death because a federal judge has set aside nine million acres for the habitat of the spotted owl, forgetting about the habitat of the men and women who live and work in Hayfork.” 82 the culture wars are, and for an appropriate conceptualization of polarization in relation to the culture wars. Sociologist James Davison Hunter (1991) must have felt the same political fault lines opening as did Buchanan when he coined the term “culture wars” a year before the latter’s eponymous speech. For Hunter, the culture wars are a fundamental realignment of political divisions between “cultural progressivism” and “cultural orthodoxy,” defined around a set of largely non-economic “hot-button” social issues like abortion, guns, and gay rights. While some have argued that the culture wars of the 1990s are largely a thing of the past (Hartman 2015), the Donald Trump presidency, the resurgent anti-political correctness of the “alt-right” and its liberal-left opposite “wokeness,” along with a host of new cultural controversies that have roiled the nation—on topics as wide-ranging as transgender bathroom use, “safe spaces” on college campuses, and professional football players kneeling during the national anthem—have resulted in a renewed journalistic and scholarly interest in the topic (e.g. Nagle 2017; Davis 2019). Figure 3.1 shows the rise of the usage of the terms “culture war” and “culture wars” in Google Books, with a sharp increase throughout the 1990s, and no decline thereafter.
Figure 3.1: Frequency of appearance of “culture war” and “culture wars” in Google Books from 1970 to 2008
A culture war, in Buchanan’s (1992) words, is about “more than who gets what. It is about who we are. It is about what we believe, and what we stand for as Americans.” To take a position in the culture wars is to signal solidarity with those who agree on these crucial questions of social morality and political identity. In Buchanan’s case, the answer is summarized in allegiance to “Judeo-Christian values and beliefs upon which America was founded.” The specific character of culture war issues—for Buchanan, abortion, “homosexual rights,” school choice, and “radical feminism”—is that they divide the polity into a moral “us” and an immoral “them.” In practice, this act of division clews together people with affinities that extend far beyond ballot box. As DellaPosta, Shi and Macy (2015) show, leisure activities, consumption choices, aesthetic dispositions, and senses of personal morality now better predict positions on culture war issues than do socio-economic and demographic variables. In the aggregate, “latte liberals” and “bird- hunting conservatives” come to define themselves in opposition to each other, not only by policy preferences, but also by “lifestyle” choices that come to signal which “side” they are on. The environment is not typically considered part of the culture wars. It is all but absent from Andrew Hartman’s (2015) otherwise meticulous history of the culture wars, for instance. Yet, in
83 line with its substantive role in Buchanan’s agenda-setting culture wars speech and the subsequent trend toward environmental partisan polarization, there are reasons to assume that it ought to be. In an article titled “Issue Evolution, Political Parties, and the Culture Wars,” Lindaman and Haider-Markel (2002) include the environment among the more prototypical culture war issues of gay rights, pornography, and gun control. As others have found, they show that polarization among elected officials greatly exceeds mass polarization across all of these issue areas. However, the environment was the only issue area for which they were able to show that elite polarization is a causal driver of mass polarization over time. Far from reflecting objective interests alone, environmental attitudes appear to be shaped by entrepreneurs of political division. This early finding squares with subsequent research on the drivers of environmental partisan polarization, especially regarding climate change. A common thread of this work is that political elites and media outlets actively shape public opinion about environmental issues. As Carmichael and Brulle (2017) show in their aggregate analysis of data from 74 surveys, the “strongest effects on public concern are a function of increases in Congressional attention on climate change, which in turn influences media coverage, which then increases public concern about climate change.” The attention and framing of climate change in the media is also an important independent factor shaping public opinion (Brulle, Carmichael and Jenkins 2012). This relationship is amplified by the increasing tendency of political ideology to predict the choice of news sources, which in turn amplify views on climate change (Bolin and Hamilton 2018). Survey-based studies provide a robust picture of the general shape and trajectory of environmental partisanship. Less is known about the concrete meso-level processes that produce and sustain such divisions on the ground.2 Fixing the analysis on how specific environmental problems become integrated into partisan identities helps to resolve a criticism that has been leveled against the culture wars thesis. The problem is simply that ordinary Americans’ policy preferences remain overwhelmingly clustered around the center of the political spectrum, in “blue” and “red” states alike (Fiorina et al. 2011). Those seeking to deflate the notion of a culture war as such have used this evidence to argue that polarization is largely an elite phenomenon, and the mirage of mass polarization merely reflects voters “sorting” into increasingly coherent partisan camps, rather than becoming more extreme in their views. In light of this interpretation, the puzzle becomes instead why we appear to “be more divided over [political] labels than over the actual policy alternatives” (Thomson 2010:8). Recent survey evidence shows that mass polarization has in fact progressed and accelerated since prominent attempts to lay to rest the culture wars thesis were published, with the environment rising to be among the most polarizing issue areas in the American polity (Pew Research Center 2017; Leiserowitz et al. 2019). However, even if mass polarization over policy preferences has been overstated by proponents of the culture wars thesis, an arguably more fundamental change has occurred in the meaning of American partisan identity: increased animosity toward the opposing party. Division over political labels is not merely a caveat to a story of overarching consensus. It may instead be more diagnostic of American political polarization in general.
2 Important exceptions include research on organizations focused specifically on promoting climate change skepticism and denial (e.g. Oreskes and Conway 2011; Brulle 2014; Skocpol and Hertel-Fernandez 2016; Farrell 2016), and environmental social movements explicitly advocating for climate action (e.g. Bugden forthcoming). 84 For this reason, what scholars of American politics term “affective polarization” is a better conceptual fit for the culture wars thesis than policy-based division. Following Iyengar, Sood, and Lelkes (2012), I understand affective polarization to be a function of positive sentiment for one’s own group, and negative sentiment for opposing groups. Recall that Buchanan’s (1992) paradigmatic speech defined the culture wars, not merely in terms of a policy platform, but more fundamentally as a statement about the distinction between an “us” and a “them.” Drawing on social identity theory, Iyengar, Sood, and Lelkes (2012) show that Democrats and Republicans increasingly “impute negative traits to the rank-and-file of the out-party,” going beyond disagreements on policy matters to include “judgments about interpersonal relations.” Subsequent analyses show that this trend has continued, with “the shares of very unfavorable opinions of the other party [more than doubling] since 1994” (Pew Research Center 2017).3 The affective polarization framework also squares with the empirical patterns of environmental partisan polarization. It reverses the traditional focus of studies of political polarization, which see partisan division aggregating up from differences in policy preferences. Instead, the affective polarization framework suggests that policy issues contribute to political division by serving as symbols of partisan animosity. How does this work? Iyengar, Sood, and Lelkes (2012) point to the mobilization efforts of partisan elites (especially negative campaign messaging) and media fragmentation (e.g. conservatives watching Fox News and liberals watching MSNBC) as drivers of increased affective polarization. These factors map on to the most robust causes of environmental partisan polarization found in public opinion research, as discussed above, namely the attention of elected officials, media framing, and partisan media choice (Carmichael and Brulle 2017; Brulle, Carmichael and Jenkins 2012; Bolin and Hamilton 2018; Lindaman and Haider-Markel 2002).
Affective Polarization and Political Symbols
To analyze the culture wars in terms of affective polarization is to explain how political divisions emerge, not simply via competing policy platforms, but through episodes which affirm “who we are,” “what we believe, and what we stand for as Americans,” and perhaps more essentially reveal ‘who they are, what they believe, and what they stand for’ (Buchanan 1992). For example, when Colin Kaepernick knelt during the national anthem in 2016 during National Football League game to protest police brutality and racism, the reactions from conservative critics and liberal sympathizers alike were not merely reflections of pre-existing disagreements about policing and race relations in America. The episode also enrolled sports into the culture wars in a new way, adding texture and depth to conservatives’ and liberals’ stories about their identities, and even more importantly, how they view their political adversaries. Further, it forged connections between political identity and lifestyle choices, especially after Kaepernick’s appearance in a Nike advertisement incited the ceremonial adornment and burning of brand name shoes by respective partisans. How do environmental objects become symbols of partisan animosity? This question draws attention to a limitation of many survey-based studies, which demonstrate the shape and trajectory of polarization in general, but tend not to provide specific historical insights into the
3 This research also finds that “most Republicans and Democrats also had negative views of the members of the opposing party,” that “Republicans and Democrats both say their friend networks are predominantly made up of people who are like-minded politically,” and that “[p]artisan differences extend even to the type of community in which people prefer to live” (Pew Research Center 2017). 85 emergence of hot button issues themselves. The analysis of the emergence and mobilization of “political symbols” (Edelman 1985) can thus complement quantitative research on the dynamics of political attitudes.4 A focus on political symbols means taking the term “culture” in “culture wars” literally to show how individual environmental problems are integrated into partisan “webs of significance” (Geertz 1973).
Folding the Water Wars into the Culture Wars
California’s “water wars” might seem an odd site to look for evidence of America’s culture wars. Controversies over water in the American West, after all have traditionally been distributional, turning on who should get it and how it should be used (Worster 1985; Reisner 1993; Hundley 2001; Arax 2019), precisely the opposite of how Buchanan defined the culture wars. Even the more symbolically rich water wars battles between building dams and preserving wilderness occurred prior to the present-day era of environmental partisan polarization, and ran orthogonal to partisanship. The avatars these bitter conflicts in the mid-20th century, Floyd Dominy of the United States Bureau of Reclamation and David Brower of the Sierra Club were both Democrats, Dominy being a committed New Dealer, and Brower leading an ascendant environmental movement from his liberal enclave of Berkeley, California (McPhee 1977; Reisner 1993; de Graaf 2012; Amironesei and Scoville 2018). The outcomes of these battles, however, laid the foundation for a different kind of environmental politics. Despite some important concessions extracted by environmentalists, Dominy’s vision largely won out in the form of engineering feats like the Central Valley and the State Water Projects. Physical infrastructures such as these enable distinct ways of organizing politics and ordinary life (Mitchell 2011; Huber 2013). Reengineering California’s river systems for extractive ends reconfigured the actors, stakes, and objects of water politics in the state (Scoville 2019). With battles over building water projects and preserving wilderness largely in the past, California water politics is now principally about how much actually gets conveyed via existing infrastructures. Those fighting for their share of this water are not, like Dominy, justifying new public works. They are defending a way of life. The most contentious battles in California water politics today are fought over the application of the Endangered Species Act, the same law that passed with bipartisan support and was signed by a Republican president in 1973. While the architects of California’s water distribution system did not know it at the time, its operation would come to disrupt the habitat of several species that would end up with protected legal status, most famously the delta smelt. The Endangered Species Act operates as a strict interdiction against actions that jeopardize the continued existence of biological species. Because the delta smelt’s sole habitat is directly disrupted by the gargantuan pumps that convey water to California’s most productive agricultural region and the state’s southern metropolises, the legal imperative of protecting the species has frequently clashed with the political and economic imperative of extracting water for productive use (Alagona 2013; Lakoff 2016a; Lakoff 2016b; Scoville 2019).
4 Murray Edelman’s (1985:6-7) analysis of political symbols relies on Edward Sapir’s distinction between “referential symbols,” which stand in for “the objective elements in objects or situations,” and “condensation symbols,” which “evoke the emotions associated with the situation. They condense into one symbolic event, sign, or act patriotic pride, anxieties, remembrances of past glories or humiliations, promises of future greatness: some one of these or all of them.” Condensation symbols, he argues, are crucial to understanding politics. “Practically every political act that is controversial regarded as really important is bound to serve in part as a condensation symbol. It evokes a quiescent or an aroused mass response because it symbolizes a threat or reassurance.” 86 Above all others, it is agricultural interests in the Southern Central Valley heavily reliant on Delta water who have reasons for complaint.5 The logic of the distributional conflict is simple. More water for protected species means less water people reliant on the water projects. Yet as I show below, the controversy over the delta smelt has resonated with and been mobilized by constituencies much larger than, often far removed from, and even entirely ignorant of the details of water flowing in California’s aqueducts. Furthermore, the delta smelt has become controversial in terms that are wildly disproportionate to, and often entirely disconnected from its modest impact on the distribution of water in California. The conflict over the delta smelt is often referred to as a “proxy” battle for a larger set of social and environmental conflicts. Yet prior treatments of the topic tend to locate the controversy within debates internal to environmental politics, rather than more broadly within national partisan politics (e.g. Alagona 2013). I argue that the delta smelt is so controversial in the broader American public sphere not simply because of its impacts on the distribution of water, but because of the strategic maneuvering on of political elites who have rendered it an affective political symbol of partisan animosity. As Kaepernick’s kneel did for the world of professional sports (and at least episodically for the Nike brand), the delta smelt controversy has helped to enroll California’s water wars—and with it, the environment more generally—into the culture wars.
The Delta Smelt as a Political Symbol
In the analysis that follows, I show how the delta smelt became a political symbol of partisan animosity. Although protections of the delta smelt have contributed less to reductions in water conveyance from California’s water projects than other environmental regulations, it has received a disproportionate emphasis from partisan entrepreneurs who have strategically mobilized the species to blame water shortages in California on liberal environmentalists, particularly in northern California. This has resulted in significant attention in the delta smelt beyond those directly impacted by the distribution of water in California, and frequently outside of the state itself. As scholars of “political articulation” have argued, partisan coalitions do not immediately grow out of objective interests. Instead, partisan elites must actively integrate disparate grievances and identities into broader sociopolitical projects (De Leon, Desai, and Tuğal 2009). In this vein, I argue that the delta smelt controversy is not simply a reflection of pre-existing interests. More importantly, it should be understood as a strategic opportunity for partisan elites to actively shape and reinforce ideological continuity between the material interests of those directly reliant on California’s major water projects (which were, one should not forget, achievements of New Deal liberalism, not contemporary conservatism), and extant themes of cultural, political, and geographic resentment. These elements are not inherently of a piece. Articulating them into a coherent whole that has significant resonance in a national culture war is a significant political accomplishment. As I show below, in the case at hand this achievement was facilitated by specific features of the Endangered Species Act, and physical features of the delta smelt itself. These opportunities were
5 Urban water agencies tend to have more diversified sources of water, but they too are directly impacted by Endangered Species Act-associated reductions in water conveyance. They also represent large populations with more left-leaning views than irrigation districts, which essentially act as lobbyists for their client-constituents. 87 creatively mobilized in relation to pre-existing themes of partisan animosity, and narratives associated with climate change denial.
Data and Method
I draw on several sources to analyze the public sphere controversy surrounding the delta smelt. The most important among these sources is published newspaper articles. In order to build a corpus of newspaper articles mentioning the term “delta smelt,” I began by compiling articles included in LexisNexis Academic’s database, which includes a large number of publications globally, including many major American newspapers and regional and local publications. This approach allowed for the most comprehensive sample from a single database without having to specify publications in advance. I supplemented this initial sample by manually adding articles mentioning “delta smelt” from several important publications that are not included in LexisNexis, drawing on Proquest, Factiva and Newsbank databases. This included articles from newspapers important to understanding the American public sphere, and crucial for capturing various regional perspectives within California. The additional newspapers included are: The Fresno Bee, The Los Angeles Times, The Sacramento Bee, The San Francisco Chronicle, and The Wall Street Journal. The resulting corpus is skewed toward California, because all but one of the publications added to the LexisNexis data listed above are from California. However most major national newspapers are included in LexisNexis (e.g. The New York Times, The Washington Post, USA Today), as are many regional and local publications inside and outside of California. All newspaper data was collected in 2018. I limited my analysis to complete calendar years, so the data set used for analysis only includes articles published between the first published mention of “delta smelt” in an included newspaper in 1988 (as indicated from an open-ended search) through the end of 2017. I removed entries that were clearly not newspaper articles, such as raw press releases from US Official News. While duplicate articles with the same publication name and date were removed, syndicated articles were included each time they appeared in unique newspapers. This is because I am interested in the spread of the controversy in the public sphere broadly understood. The final corpus includes a total of 3,009 news articles. The bulk of the analysis in this chapter draws on opinion articles mentioning “delta smelt,” a subset of the full news articles data set. I distinguish opinion articles from news articles, in line with common journalistic practice. In the opinion category I include op-eds, editorials, and letters to the editor. Among the 3,009 articles in my corpus, I identified 683 as opinion articles. I reviewed all 683 opinion articles and coded them along several dimensions. I randomized the order of articles and coded each variable independently to reduce potential biases. First, I manually coded opinion articles by their position toward environmental protections. This variable includes three mutually exclusive categories: those that take a positive stance toward environmental protections, those that are ambiguous, and those that take a negative stance toward environmental protections. Second, I manually coded articles for whether or not their primary topic was California water issues or not. This variable captures whether or not mentions of the delta smelt are embedded in a discussion of water in California, or as an outside example in relation to another issue. Because protections of the delta smelt are not the only Endangered Species Act-related causes of water conveyance curtailments in the Delta, I also coded articles for whether or not they mention salmon. As I discuss below, endangered salmon runs in the Delta account for a
88 larger quantity of water restrictions than delta smelt, and restrictions protecting smelt and salmon are largely indistinguishable to lay people and even most experts. This variable was coded via automated text analysis in the statistical software R. I counted mentions of either “salmon” or “chinook” (the relevant kind of salmon). The resulting variable is a binary indicator of whether or not either term is present in each opinion article. Finally, I coded all publications that ran opinion articles for whether or not they are located inside or outside of California, resulting in a binary variable for location of publication.6 Published opinions are of course only one measure of a controversy. Another is to look at interest in the topic from ordinary people. I draw on two separate indicators of public interest and sentiment. First is Google search activity, from Google Trends. This provides relevant search volume over time for the term “delta smelt.” Second, I draw on Twitter data. With the help of an undergraduate research assistant, I collected all public Tweets mentioning “delta smelt” through the end of 2018.7 The result is a data set of 13,868 Tweets from 2007 to 2018, including Tweet content and full meta-data.8 In this chapter, Twitter data are presented to understand the trajectory of popular interest in the delta smelt. I also include a sentiment analysis of the Tweets, which is used to identify relative outbursts in positive or negative sentiment in relation to the delta smelt over time. This chapter is situated within a larger project on the case of the delta smelt in relation to the history of California water politics, and the interface of science, law and policy. Although I do not draw on them directly in this chapter in a significant way, my argument is informed by an in- depth review of several thousand relevant primary and secondary historical sources, approximately 160 hours of observational research in settings where scientists and policy professionals discuss the delta smelt and related issues pertaining to water, fisheries, and the environment in California, and 22 interviews with experts with intimate knowledge on the science, policy, and politics surrounding the delta smelt.
The Delta Smelt’s Contribution to Water Restrictions in California
Those who have mobilized the delta smelt as a symbol of the excesses of liberal environmentalism claim that protecting the species is a major cause of water scarcity in California. Any account that frames the controversy as a distributional struggle accedes this premise. To assess the claim that the delta smelt should be understood as a political symbol instead, once must first answer the following question. Have regulations protecting the delta smelt caused significant reductions in the amount of water conveyed through California’s major water projects? The simple answer is, no. The details, however, are important to understanding the politics of the case. Conservation scientists, Reis, Howard, and Rosenfield (2019), conducted a systematic analysis of Delta water inflows and outflows to assess common claims about the delta smelt’s impacts on water conveyance in California. Their findings are twofold. First, looking at the period from 1930 to 2018, they find that, contrary to claims that more water has been flowing out to the sea to protect the endangered species in recent years, “the percentage of Central Valley
6 A future analysis will include a more fine-grained geographic variable to allow for comparisons among regions of the United States and regions within California (e.g. northern, central, and southern). It may also be illustrative to analyze opinion articles along the axis of newspaper circulation size. 7 We used the open-source tool “TWINT” to collect Twitter data. See: https://github.com/twintproject. 8 Each unique Tweet is only counted once. The number of “retweets” is included as a meta-data variable, and is not reflected in the counts of Tweets. 89 runoff that reached San Francisco Bay during the ecologically sensitive winter-spring period declined over the past several decades” (Reis, Howard, and Rosenfield 2019:1). In other words, there has been a long-term trend toward a higher proportion of water being extracted from the Delta for productive uses, with a lower proportion of water being left in the system to flow to the Bay as it would without human intervention. Second, the authors focus on the 2010-18 drought, during which protections of the delta smelt were highly controversial. They analyze the relative effects of various constraints on water exports from the Delta, and find that two factors dominate. First are salinity control measures, which are required in order to avoid exporting salty (and therefore unusable) water. Second are system-capacity constraints, which represent infrastructural/hydrologic limits to capture water flowing through the Delta. Combined, these factors “dwarfed those related to protection of fish and wildlife populations, endangered or otherwise” (Reis, Howard, and Rosenfield 2019:1). Exactly how much water did legal protections of the delta smelt contribute to water shortages during the 2010-18 drought? There are two ways to run the numbers. One uses the baseline of “unimpaired Delta outflow,” which represents the total volume of water that would flow through the Delta to in the absence of human interventions. Protections of the delta smelt account for 0.7% of unimpaired Delta outflow during the 2010-18 period. The second option is to use the baseline of “actual Delta outflow,” which is the volume of water that flows through the Delta, after accounting for upstream use, water use within the Delta, and exports from the water projects to farms and cities. Protections of the delta smelt accounted for 1.2% of actual Delta outflow. In sum, Reis, Howard, and Rosenfield (2019:16) find “little support for the claim that regulations specifically intended to protect endangered fishes were the dominant governing constraint on project water exports during [their] study period.” There are two important takeaways from this analysis. First, among environmental regulations, protections of the delta smelt are “among the smallest contributions to actual Delta outflow” (Reis, Howard, and Rosenfield 2019:16-17). Second, there is another set of Endangered Species Act Protections that has a larger impact on water conveyance (although still modest at 1.5% of unimpaired Delta outflow or 2.8% of actual Delta outflow), which includes Chinook salmon native to the Delta. Thus, the legal intervention protecting the delta smelt is actually only one source of water curtailment, and is responsible for a relatively small set of restrictions.9 As modest as they are in aggregate terms, the effects of these reductions are not distributed equally. The Westlands Water District is a quasi-governmental organization that represents the interests of growers to the west of Fresno. Westlands was made possible by federally subsidized water, with a founding date of 1952, the year after pumping in the Delta commenced. Because of its young age, according to California’s system of appropriative water rights, Westlands has junior status, meaning that it is toward the end of the line for water pumped from the Delta, and
9 This second set of Endangered Species Act protections covers several listed anadromous fish, but salmon are the primary target. A small additional quantity of 0.5% of unimpaired Delta outflow or 0.9% of actual Delta outflow were associated with simultaneous anadromous fish & Delta Smelt protections. “Cumulative [Endangered Species Act]-related project water export constraints amounted to no more than 5.3% of actual Delta outflow (2.9% of unimpaired Delta outflow), and were much less than those attributable to maintenance of the [Hydraulic Salinity Barrier] (24.7% and 13.7% of actual and unimpaired Delta outflow, respectively) and slightly less than those attributable to general protection of fish and wildlife populations,” as required by California’s Water Quality Control Plan. Additional uncaptured outflow (representing system-capacity limits) accounted for 35% of unimpaired Delta outflow and 64.5% of actual Delta outflow. Exports via the Central Valley and State Water projects accounted for 15.6% of unimpaired Delta outflow (this quantity is not included in actual Delta outflow by definition, because it is extracted rather than flowing out of the estuary) (Reis, Howard, and Rosenfield 2019:16). 90 among the first to lose water when it is restricted by endangered species protections. Although the district’s promotional materials suggest that it is composed of 700 “family farms,” this is only true on paper. While some farms in the district are small, generally speaking, Westlands growers are the archetype of “big ag.” Many Westlands farms are grouped by family trusts and common ownership schemes devised in order to circumvent legal limits on the size of farms receiving subsidized federal water, with actual footprints reaching as high as approximately 30,000 acres, about twice the size of Manhattan (Brozovic, Carey, and Sunding 2002; Sugg 2018; Harkinson 2014; Westlands Water District 2020). Westlands is the largest irrigation district in the country, and it wields disproportionate power in the political economy of water in California. This owes in large part to its lobbying efforts in Washington (Felde and Novak 2014; Hiltzik 2015; Arax 2019). Notably, President Trump nominated the district’s former lobbyist David Bernhardt to be Secretary of the Interior, the Department in charge of enforcing the Endangered Species Act. Unsurprisingly Bernhardt has used this a position to rewrite the rules governing water in California, with a special eye to the delta smelt (Davenport 2019a). Backroom deals and regulatory capture can be explained by traditional accounts of interest group politics.10 What is more puzzling than California’s shadowy water politics is what can be seen in broad daylight. Even if Westlands growers and other constituencies similarly positioned within California’s agricultural political economy stand to benefit from a weaker enforcement of the delta smelt’s protections, a crucial question remains. How did this narrow set of interests, of which few ordinary Californians (much less Americans) are aware, come to motivate a controversy with such broad cultural appeal, reaching far beyond the regional interests of a subset of Central Valley growers? This, I argue, implies going beyond the analysis of interest group politics that characterizes the standard water wars narrative (cf. Worster 1985; Reisner 1993; Arax 2019). Instead, it requires an analysis of the delta smelt’s emergence as a symbol of partisan animosity.
The Meaning of the Delta Smelt
Why is the delta smelt so controversial, despite its marginal impact on water exports in California? An important part of the answer lies in what I term “strategic denaturalization.” Here I draw on Charis Thompson’s (2005) concept of “strategic naturalizing,” which she uses to describe how patients, practitioners, donors, and surrogates navigate the ambiguous context of fertility clinics by mobilizing biological language and techniques to establish legitimate “natural” kinship relations. Practices of strategic naturalization help actors navigate a complex situation without having to directly address thorny moral and political questions. Disproportionately emphasizing the delta smelt’s role in the world of California water has the opposite effect. It directs attention away from the systemic constraints on water conveyance— which are climatic, hydrologic, infrastructural, and ultimately impersonal—and toward an entity that can more readily be imbued with moral and political significance. When Donald Trump claimed “there is no drought” in relation to the delta smelt on the 2016 campaign trail (Colvin 2016), he was in one move, denaturalizing the causes of water scarcity, and pinning
10 Westlands is not the only actor in its class of agricultural power players, but it is arguably the most prominent. For a recent treatment of this dimension of California water politics that goes into more detail about various “water grabs” in recent California history, see Arax (2019). 91 responsibility for associated hardships on his political opponents who are said to be more concerned for the interests of an obscure fish than of the people of the Central Valley. According to biologists working in the Delta, pumping water out of its habitat for productive use is one important factor in explaining the delta smelt’s long-term decline, but it is not a complete explanation. The loss of tidal marsh habitat, the introduction of invasive species, and upstream pollution are also important factors, with their relative importance and interrelations being objects of prolonged debate. Policy discussions about how to improve the health of the Delta ecosystem (including, but not limited to the recovery of the delta smelt) center on the specter of climate change, which may already be an important factor in California’s recent droughts. Two effects of climate change, the decline of snowpack in California’s mountains (the primary source of flows into the Delta) and salt water intrusion associated with sea level rise, threaten both the long-term reliability of California’s water system and of the health of the estuary. If climatic trends continue, flows will become more erratic, amplifying the two dominant constraints on water exports from the Delta. Prolonged droughts and sea level rise will intensify the need for salinity control-related reductions in pumping. Because precipitation is increasingly expected to come in the form of rain rather than snow, in wet years of the future, water will flow through the Delta in quantities and velocities that the existing infrastructural system was not built to be able to efficiently capture (Moyle, Hobbs, and Durand 2018). The delta smelt provides political cover for these systemic environmental changes, allowing blame for water scarcity to be leveled against environmentalists themselves. What may initially appear as a natural phenomenon, it is argued, as actually artificial—a “man-made drought.” An early instance of this framing was a 2009 editorial titled “California’s Man-Made Drought” in the Wall Street Journal, which opened with the claim that San Joaquin Valley farmers are now an “endangered species,” owing to conspiring Democratic politicians, environmentalists, and lawyers for who have put their interests behind those of the delta smelt. An editorial ran in the Investor’s Business Daily the following year that elaborated the subtext of this claim more explicitly: “Fresno is starting to resemble Zimbabwe or 1930’s Ukraine, a victim of a famine machine that is entirely man-made, not by red communists this time, but by greens. State and federal officials, driven by the agenda of environmental extremists, have made it extremely difficult for the valley's farms, introducing costly environmental regulations and cutting off critical water supplies to save the Delta smelt, a bait fish” (“Fresno, Zimbabwe” 2010). In the lead-up to the 2016 presidential election, this form of attribution became a more-or- less obligatory move for Republican hopefuls on the campaign trail. For example, then candidate for the Republican presidential nomination, Carly Fiorina, penned an op-ed published in Time Magazine titled, “The Man-Made Water Shortage in California.” In it she claimed that “extreme water shortages are an ongoing and man-made human tragedy—one that has been brought on by overzealous liberal environmentalists. It comes down to this: Which do we think is more important, families or fish?” Which fish did she have in mind? Although their protections are responsible for the largest proportion of fish-related pumping restrictions, salmon are not mentioned. The delta smelt, however, is referenced by name as a species that “environmentalists have continued to champion at the expense of Californians.” “Liberals love to tell us how much they care,” Fiorina concludes. “What they never mention is the crushed potential of those whose livelihoods their policies have destroyed” (Fiorina 2015).
92 Gauging the Meaning of the Delta Smelt
In order to ascertain the overall shape of printed opinion about the delta smelt, I coded all opinion articles mentioning the delta smelt in my corpus into three categories. First are those that take a positive stance toward environmental protections. Second are those that are ambiguous (often calling for balance, or berating politicians for not solving the problem). And third are those that take a negative stance toward environmental protections. Figure 3.2 shows that there are many in each category, but the anti-environmental category is the largest.
Figure 3.2: Political Positions on Environmental Protections of Opinion Articles Mentioning the Delta Smelt (N = 683)
In order to better understand the meaning of published references to the delta smelt, I also coded opinion articles for whether or not their principal topic was water in California. This provides an indicator of the extent to which the delta smelt is meaningful within the world of California water alone, or if its symbolic resonance has moved beyond that substantive issue area to others. Unsurprisingly, the vast majority of opinion articles mentioning the delta smelt are principally about California water issues (80%). However, in breaking down this variable by position on environmental regulations, a striking pattern emerges. As figure 3.3 shows, compared to pro-environmental opinion articles, anti-environmental opinion articles mentioning the delta smelt were more than six times more likely to not be principally about California water. In other words, defenders of the environment are likely to discuss the delta smelt in concrete terms, whereas opponents are much more likely to use the delta smelt as an example or an illustration of
93 some other problem. This suggests that the delta smelt has much more cultural significance for opponents of environmental protections.
Figure 3.3: Political Positions of Opinion Articles Mentioning the Delta Smelt by Principle Topic of Article (N = 683)
What does this look like? Below is an illustrative example of how the delta smelt has been woven into Republican partisan narratives in letters to editors, in this instance in a rumination on Tea Party identity and their unrealized social power. The author (notably a resident of Florida, not California) writes:
I am not much of a joiner. I joined the U.S. Navy and they gave me a uniform and some dog tags and then sent me to Korea. I joined the National Rifle Association, which gave me a card and some decals; I give them money and they remind the feds that the Second Amendment means what it says. I'm a tea party member, I think; I don't have a card, a secret handshake or a tattoo, but I go to meetings and agree with most of what tea partiers believe in, like small government and small taxes, and that the government ain’t my mama and daddy. I wish we did have the power that a recent letter writer gave us credit for, but we only have Fox backing us (sometimes). Want to know where the power lies? (And it does lie). Check out the Delta smelt. The environmentalists want to cut off the water supply to the farmers of the Central Valley in California because of a few smelts (Glover 2014).
Far from simply being about the distribution of water, protections of the delta smelt have overflowed into a broader partisan system of symbolic divisions. However, the result is asymmetrical. The delta smelt is primarily a symbol of partisan animosity for opponents of 94 environmental protections.11 The following example from Twitter, chosen for having a relatively high number of reactions (55 “retweets” and 202 “likes”) neatly illustrates the logic of these symbolic connections: “One way to get liberals to be pro-life is for the fetus to identify as an anti Semitic, transgender delta smelt.” Intended as a joke for a right-wing audience, it demonstrates how the delta smelt has come to take on meaning in relation to traditional culture war issues such as abortion. Connections between abortion and the delta smelt are not unique to social media. For example, a letter to the editor of the Topeka Capital-Journal seamlessly integrates the delta smelt into a laundry list of partisan grievances: “Death panels are there, but now they are called Medicare Advisory Boards. Rationing is there, but is called efficiency or quality measures. One representative traded airport money for government funded abortions, and California congressional delegates got Central Valley spigots turned on to keep the Delta Smelt happy” (Henrynk 2010). An underlying theme in all of these utterances is that protections of the delta smelt are the cause of water shortages in California, and by extension that liberal environmentalists (especially politicians, lawyers, and activists) are the cause of those shortages.
Geography and the Meaning of the Delta Smelt
Where are the position takers and their readers located in general? I coded all opinion articles for whether or not the publication in which they appeared were located inside of California or not. As discussed above, my sample of newspaper articles is significantly biased toward California. This is because all but one of the publications I purposively added to my initial sample of articles acquired via LexisNexis are California newspapers. LexisNexis includes most major national newspapers, but omits several important newspapers in California. My goal in adding publications to my initial sample was to make sure to cover a wide range of national newspapers and regional perspectives within California. Unsurprisingly, the vast majority of opinion articles in my corpus appear in California publications (86%). However, opinion articles outside of California are not distributed evenly by position on environmental protections. Figure 3.4 shows counts of articles by position and location. I display counts, rather than proportions in this figure to demonstrate that, while the anti-environmental category is indeed the largest among opinion articles overall, within the subset of California- based publications, it is actually the smallest category. In other words, within California—the only state impacted by protections of the delta smelt— published opinions mentioning the species are more balanced by position, with a slight skew toward opinion articles espousing positive views of environmental protections. Among opinion articles mentioning the delta smelt published outside of California, the vast majority (77%) espouse a negative view of environmental protections. This suggests that, far from being driven by local special interests alone, negative sentiment toward the delta smelt is disproportionally driven by actors outside of the state.
11 A similar analysis of other controversies, for instance fracking or oil and gas pipelines, might show more symmetrical symbolic partisan resonance, or asymmetry skewed in the direction of environmentalism, which is now closely associated with liberalism and the Democratic party. 95 Figure 3.4: Political Positions of Articles Mentioning the Delta Smelt by Publication Location (N = 683)
How does the meaning of the delta smelt differ in opinion articles inside versus outside California? Recall that 80% of opinion articles mentioning the delta smelt are principally about California water. Figure 3.5 breaks down opinion articles by geography and subject matter. While 85% of opinion articles published in California are principally about California water issues, opinion articles published outside of California are equally split between being about California water or some other topic. This suggests that the abstraction of the delta smelt from a factor in California water policy to a symbol situated among a broader set of political issues is being driven disproportionately by writers and readers outside of the state.
96 Figure 3.5: Location of Publication of Opinion Articles Mentioning the Delta Smelt by Principle Topic of Article (N = 683)
Making a Political Symbol
The evidence presented so far suggests that the delta smelt is more meaningful to opponents of environmental protections than proponents, and more meaningful to actors outside of California than inside it. I have also shown that a much higher proportion of the negative opinions are published outside of California than of the positive or ambivalent positions, even though California is the only state impacted by the (relatively modest) water restrictions associated with protecting the delta smelt. Taken together with a close look at illustrative examples, these patterns suggest that the delta smelt has allowed conservative political entrepreneurs to blame liberal environmentalists for the California drought, thereby enrolling the environment into a broader set of partisan divisions that are relevant beyond the domain of California water issues. Whereas the previous section presented cross-sectional data on the meaning of the delta smelt to different position takers in different locations, here I will present a diachronic view of the controversy, following how the delta smelt spilled over from the domains of science and law into the public sphere. The next section will focus on how the physical characteristics of the delta smelt gave entrepreneurs of partisan division significant opportunities to weave California’s water woes into a national culture war. Here I will focus on the specific meaning of the delta smelt to show how it became an exemplar of liberal hypocrisy.
97 How the Delta Smelt Gained Significance in the Public Sphere
The seeds of the delta smelt controversy were planted when the species was listed under the Endangered Species Act as a protected species in 1993. However, the controversy did not begin to germinate until after the failure of a decades-long series of attempts to build policy that reconciled endangered species protection with continued water extraction in the Delta. In 2007, amid plummeting indicators of species prevalence, Federal Judge Oliver Wanger issued a decision that forced water agencies to rewrite their plans for protecting the species, resulting in a brief but significant curtailment of pumping from the Delta (Alagona 2013; Lakoff 2016a; Scoville 2019; Water Education Foundation 2020b). Although the overall effects of protecting the delta smelt on water allocations have been modest, this acute moment of crisis catapulted the delta smelt into the public sphere. Figure 3.6 shows the number of news and opinion articles mentioning the delta smelt published over time. There is a relatively small spike in news media interest when it was listed under the Endangered Species Act, with an explosion beginning in 2007 with the “Wanger Decision,” as it would come to be known. The ratio of opinion to news articles also increases over time well beyond the threshold of statistical significance.
Figure 3.6: Print Media Interest in the Delta Smelt Over Time
The Wanger Decision can be understood as an “event” in William H. Sewell Jr.’s sense that they are “literally significant: they signify something new and surprising” (Sewell 2005:245). However, it would be a mistake to interpret this legal action as the lone, unmediated
98 driver of the delta smelt’s controversial status. The court order was not sufficient on its own. Among the 61 opinion articles mentioning the delta smelt published in 2008 (the year after the Wanger Decision), only 26% expressed a negative opinion about environmental protections, with 43% expressing a positive view and 31% ambiguous, a less negative and more positive distribution than the sample of opinion articles as a whole shown in Figure 3.2. Instead, the Wanger Decision provided a strategic opportunity for the delta smelt to become a symbol of partisan animosity, one that would have to be exploited by entrepreneurs of political division. How did the delta smelt become imbued with partisan significance if the Wanger Decision was not enough on its own? At this point it is helpful to go beyond the “supply side” of public opinion represented in print media to the “demand side” of the equation represented by the revealed interests of ordinary Americans. Although not perfectly representative of the American population, Google search behavior has the benefit of not being mediated by news organizations, thus acting as a more direct indicator of public interest than publication counts. Figure 3.7 shows monthly national Google search interest in the Delta smelt, relative over time. If the delta smelt controversy were a mirror image of a distributional struggle, one would expect search interest to track California water policy. However, 2007 does not show a particularly large increase in search interest in the delta smelt. Instead, the largest spike by far is in September 2009, which corresponds, not to a court case or an acute shut down in water flowing to the Central Valley, but to conservative political commentator Sean Hannity’s expose on the delta smelt on Fox News.
Figure 3.7: Google Search Interest in “Delta Smelt” in the United States of America Over Time (Source: Google Trends)
99 The Hannity special, “The Valley Hope Forgot” attributes water scarcity and Great Recession-era economic hardships experienced in California’s Central Valley to protections of the delta smelt. While there exist numerous potential confounders, including President Barack Obama’s inauguration and the progression of the Great Recession itself, it is illustrative to compare the makeup of published opinion in the aftermath of the Wanger Decision to the period directly following Hannity’s special.12 Among the 82 opinion articles mentioning the delta smelt published in the 12 month period following “The Valley Hope Forgot” (September 17th 2009 to September 16th 2010), 49% expressed a negative opinion about environmental protections, 27% expressed a positive opinion, and 24% were ambiguous. This is roughly a doubling of the percentage of negative opinion articles relative to 2008, with positive opinions nearly cut in half.
The Delta Smelt as a Symbol of Liberal Hypocrisy
Consonant with interest group explanations of environmental politics, Hannity’s efforts to shine a national spotlight on the delta smelt included sympathetic interviews with important power players in California’s political economy of water. Among them were a Westlands Water District spokesperson and Fresno area Congressman Devin Nunes, who would go on to label the delta smelt “a stupid little fish” on the floor of the United States House of Representatives (Clarke 2014). However, the Hannity guest to receive the most airtime in relation to the delta smelt was an individual with no direct power in the world of California water at all: Paul Rodriguez, a conservative comedian and public face of the until then, little known, Latino Water Coalition. Rodriguez’s disproportionate role illustrates an important aspect of the delta smelt’s role as a strategic object for opponents to environmental protections to fold California’s water wars into existing themes of partisan resentment. The tactical logic behind Rodriguez’s appearance was to use the delta smelt to appeal to liberal hypocrisy. Here I draw on Justin Farrell’s (2015) work on how opponents to environmental protections negotiate their identities in relation to liberal environmentalism. In the case at hand, appeals to liberal hypocrisy invoke the Endangered Species Act’s statutory blindness to the social costs of conservation, and to the partisan politics of race, class, and geography. In order to make these connections, opponents of environmental regulations strategically link protections of a small and obscure fish (associated with out of touch liberals in faraway cities) to the hardships faced by poor, predominantly Latino farmworkers (who liberals claim as a natural constituency). The Latino Water Coalition claims to be a grassroots organization, advancing the interests of farmworkers. The bulk of their activities have been staging protests in Sacramento and Fresno, and garnering media attention to highlight the human costs of restrictions on extracting water from the Delta. However, an array of reports from environmental and labor groups (including Dolores Huerta, the co-founder of the United Farm Workers), governmental officials (including my own interviews with experts on the ground)13, and investigative journalists suggest that the Latino Water Coalition is better understood as an “astroturfing” project, a political front for
12 Leading up to the September 2009 special dedicated to the topic was a June 2009 segment on the delta smelt that anticipated it titled “Fish or Families?” Judging by the content of Twitter data analyzed below, there appears to have been some engagement with the topic among other Fox News commentators between June and September 2009. Thus, while the September special resulted in an acute spike in interest in the delta smelt, it was not the absolute beginning point of the controversy’s emergence in conservative media. 13 Interview, Bruce Herbold, 27 September 2018. 100 wealthy agricultural interests (Miranda 2009; Bacher 2009a; Bacher 2009b). Uncharacteristic of a spontaneous worker-organized march, participants in their demonstrations were paid by their employers to attend in lieu of harvesting crops (Wollan 2009). And uncharacteristic of a grassroots group of farm laborers, the Latino Water Coalition has also enlisted the services of Burson-Marsteller, the public relations firm known for crisis management and lobbying for companies including Blackwater after its employees were convicted of killing Iraqi civilians (Capitol Weekly Staff 2009).14 The reason that the Latino Water Coalition is a good public relations investment is simple: the wealthy white farmer is not a sympathetic figure, as the unflattering press that billionaire- farmers Lynda and Stewart Resnick have garnered exemplifies (see Arax 2019). For instance, a 2015 article in Forbes titled, “America’s Nuttiest Billionaire Couple: Amid Drought, Stewart And Lynda Resnick Are Richer Than Ever,” discusses the maze of opportunism and corruption associated with the Resnick’s strategy of accumulating water and money.
The Resnicks use at least 120 billion gallons a year, two-thirds on nuts, enough to supply San Francisco’s 852,000 residents for a decade… The Resnicks, who live in a five-bedroom mansion in Beverly Hills and fly into the valley about once or twice a month, are crafty dealmakers and even finer marketers. In addition to the pistachios and almonds, their company, [Wonderful], owns 32,000 acres of California citrus, flower- delivery service Teleflora, POM Wonderful pomegranate juice and Fiji Water, which collectively brought in $3.8 billion in sales last year. By their own estimates almost half of American households buy their products (Sorvino 2015).
By contrast, Paul Rodriguez, appearing to barely hold back tears in an interview with Hannity while acting as an ambassador for Latino farmworkers in the Central Valley, spoke of how protections of the delta smelt are harming his family directly. As Mark Arax (2019) has reported, Rodriguez’s family farm is not served by the water projects that are impacted by delta smelt protections. Factuality, however, is not the point of these appearances. Whether in a television interview, or in a march on the California State Capitol, the act of deploying a racialized image of the Latino farmworker against the delta smelt serves to drive a wedge between liberal concerns for vulnerable minorities and environmental protection. In the process, the delta smelt comes to signify environmentalism’s toll on the very people that liberals claim to protect.15 Figure 3.8 shows two images from Rodriguez’s appearances on Hannity in 2009 for illustrative purposes. The top pane shows Hannity (left) signaling the small size of the delta smelt with his fingers while interviewing Rodriguez (right). The marquee refers to California’s “man-made drought.” The bottom pane shows United States Representative Devin Nunes (left) sitting next to Rodriguez (right) with a group of demonstrators holding Latino Water Coalition signs. A reference to a “2 inch fish” (the delta smelt) appears in the marquee.
14 See Arax (2019) for a more detailed discussion of the origins and activities of the Latino Water Coalition. 15 The Latino Water Coalition is exemplary but not the sole entity in its class. More recently, Westlands Water District has invested in an organization called “El Agua Es Asunto de Todos” that claims to represent farmworkers in the Central Valley, to similar ends (Grijalva 2016; Arax 2019). 101 Figure 3.8: Paul Rodriguez Rails Against the Delta Smelt on Fox News
Hannity’s other guest, Congressman Nunes, would continue to mobilize the delta smelt as a symbol of liberal hypocrisy for years to come, albeit in a way that emphasized resentments organized around geography. A particularly famous instance was a hearing on the Sacramento- San Joaquin Valley Emergency Water Delivery Act in 2014, where Nunes dubbed the delta smelt a “stupid little fish.” More substantively, his speech used the species to fold a position on California water policy into a broader system of existing cultural, geographic and political resentments. Fashioning liberal environmentalists living in faraway cities as his constituents’ opponents, Nunes posed the following question. Why do these people want to deprive the Central Valley of water? The answer, he claims is as follows.
Because they never liked the fact that farmers and farm workers were making what was once a dry area of the State the Garden of Eden of this world. They never liked that. Why? Because they don't want to have to 102 admit to themselves, when they live in their beautiful cities of Hollywood and San Francisco and all these great cities that are on the coast of California, beautiful areas, it is a desert. They don’t have any water either. So they wanted to keep our area, where I grew up, they wanted to keep it as a desert because they feel bad about the destruction that they have done on the coast of California. So if they can keep inland California in its original state, they would be happy with that. But for the farmers and the farmworkers that are losing their farms, farmworkers are out of jobs. We are going to lose 30,000 jobs probably this year. It is an inconvenient truth that for 40 years this body has been preempting State law and taking water away from one region and dumping it and wasting it out to the ocean (Nunes 2014).
The hypocrisy of liberal environmentalists sitting comfortably in far away cities, Nunes continues, is that they too live in conditions that were made possible by environmentally destruction.
You go visit San Francisco, visit Silicon Valley, people think, oh, that is a beautiful area. Green lawns, people water their lawns. They don’t have any water, Mr. Speaker, either, because, conveniently, this body preempted State law, took water from our area in the Sierra Nevadas, which is about 200 miles away. But worse than that, they went into a national park to take the water. What national park? Yosemite National Park. They went to Yosemite, one of the treasures of our national park system, and they took this valley, and they put a dam so that they could create this lake. Now, look, I want the people of San Francisco and the bay area to have water. I don’t want them to be like our communities and not have any water. But we have to tell the truth, Mr. Speaker. They dammed up this valley to create this water, but then it doesn’t go to the delta to protect their little fish that they care so much about. No, Mr. Speaker. It gets piped over to San Francisco. Here is the pipe. This is the Sierra Nevadas. They catch the water. They pipe it all over the bay area, Silicon Valley, San Francisco, discharge their sewer into the bay, take pristine water from our area to feed their families, grow their grass. I don’t see any of them up here saying that they are going to tear down this system, dump this water into the bay to protect their stupid little fish, their little delta smelt that they care about. We don't see that, Mr. Speaker, because they don’t want to tell the truth (Nunes 2014).
Setting aside the dubious nature of several factual claims and equivocations therein, a source of this speech’s rhetorical power is that it imbues the delta smelt with meaning in an imagined battle between struggling farmers and farmworkers in California’s parched inland areas, and aloof environmental elites in coastal cities awash in water won by unacknowledged ecological sins. To invoke the delta smelt as a cause of water shortages (and by extension, economic hardship), is to say that liberals who claim to care about vulnerable communities and environmental issues are both callous about the human consequences of their pet causes, and unwilling to acknowledge the hypocrisy of asking others to live up to standards that they themselves do not uphold.
Tracking Outrage on Twitter
How did ordinary Americans respond to such provocations? Survey-based research suggests that elite cues and media framing are important drivers of environmental partisan polarization (Brulle, Carmichael and Jenkins 2012; Carmichael and Brulle 2017; Bolin and Hamilton 2018). Survey data on this specific case does not exist, but social media behavior (in addition to the Google search data presented in Figure 3.7) provides clues into the dynamics of public interest in and sentiment regarding the delta smelt. Figure 3.9 shows the total annual activity on the social media platform Twitter mentioning “delta smelt” from 2007 to 2018. The data set includes a total of 13,868 Tweets.
103 Figure 3.9: Comprehensive Twitter Activity on the Delta Smelt, 2007-2018 (N = 13,868)
A cursory look at the data shows that the controversy entered Twitter in 2009, the same year of the delta smelt’s appearance on Hannity, and a full two years after the Wanger Decision resulted in the proliferation of newspaper articles about the species. Twitter only came online in 2006, and usage of the website has increased significantly over time, so the relative popularity of the website is a potential confounder when looking at raw counts alone. However, comparing Tweet counts immediately before and after the Hannity special can provide a test of its proximate effects. From the first Tweet mentioning the delta smelt on April 11th 2007 until September 16th 2009 (the day before the Hannity special on the delta smelt) there were a total of 358 Tweets mentioning the delta smelt. This amounts to an average of 12.3 Tweets mentioning the delta smelt per month. Two countervailing factors should be taken into account to craft an appropriate baseline, however. First, the initial low volume of Tweets could owe partly to the infancy of the Twitter platform in the early part of the range. Second, because Hannity included a segment on the delta smelt in June 2009, and ran promotional teasers leading up to the full-length special in September of that year, the cleanest period of baseline comparison to account for related media effects would end in May 2009. To balance between these two factors, I counted Tweets from January to May 2009 as an alternative baseline. There were 77 Tweets mentioning the delta smelt during this period, or an average of 15.4 Tweets per month. By comparison, in the month following the Hannity special on the delta smelt (September 17th to October 16th 2009), a total of 640 Tweets were published that mentioned the delta smelt. This represents a 43-fold increase
104 based on the January to May 2009 baseline, and 52-fold increase on the April 11th 2007 to September 16th baseline. Hannity, then, appears to have catalyzed the delta smelt’s entrance into the “Twittersphere,” much as his special episode corresponds to the global spike in Google search activity on the delta smelt shown in Figure 3.7. One might ask, however, how well Twitter activity overall tracks actual water restrictions associated with the species. The 2007 Wanger Decision did not spark a significant reaction on Twitter, but this may be due to the fledgling status of the platform. It is possible though to compare Twitter interest in the delta smelt to the water restrictions associated with protecting the species in the years 2010 to 2018 as analyzed by Reis, Howard, and Rosenfield (2019). The years in this range can be broken into three categories. First are years for which protections of the delta smelt did not contribute to water curtailments at all. Years in this category are 2011, 2014, and 2015. None are characterized by a particularly low volume of Tweets, and 2015 is the global peak of Twitter attention. Second are years in which protections of the delta smelt were non-zero, but account for less water than the average for the range. This category includes 2016, which has the third highest volume of Tweets, and 2017, which had slightly fewer Tweets than average. Finally are years during which protections of the delta smelt account for a higher than average quantity of water in the range. Three of the four years in this category (2010, 2012, and 2013) have below average Tweet volume. 2018 is the year with the most Tweets in this category, but it is dwarfed by the average Twitter activity during which protecting the delta smelt accounted no water restrictions at all. In sum, concrete reductions in water conveyance do not appear to be driving Twitter engagement about the delta smelt. A limitation of this analysis is that Reis, Howard, and Rosenfield (2019) report sources of water conveyance restrictions in “water years,” whereas the Twitter data is presented in calendar years. Water years begin on October 1st of the prior calendar year. For example, the 2019 water st year began on October 1 2018 and ended on September 30th 2019. This effectively introduces a delay to the Twitter variable in relation to the water variable. The direction of this incongruence is less analytically problematic than if the delay was the other way around, given that one would expect social media reactions to respond to prior regulatory actions, not anticipate future ones. However, it still poses a threat to the validity of the preceding analysis. Therefore to formally evaluate this relationship between water curtailments and Twitter interest, I conducted a statistical analysis of the relationship between Tweet counts and water restrictions associated with the delta smelt during from the 2010 to 2018 water years. The results show the opposite of what one would expect if water curtailments were driving Twitter engagement. There is a negative correlation between the number of Tweets per water year mentioning the delta smelt and the percentage of unimpaired Delta outflow associated with protections of the delta smelt (Pearson product-moment correlation coefficient = -0.55). So far, we have seen that water curtailments associated with the delta smelt do not explain Twitter activity related to the delta smelt, and that Hannity’s special appears to have brought the delta smelt to the attention of Twitter users. The question remains of how to explain interest in the delta smelt in the nearly one decade in the data set after Hannity’s special, and what sorts of meanings are encoded in that Twitter activity more generally. While I do not claim to provide a comprehensive answer to these questions here (a subsequent analysis will employ additional computational techniques, structural variables, and qualitative coding), I do provide partial answers based on the use of sentiment analysis, a natural language processing technique.
105 To systematically track outrage about the delta smelt throughout the entire Twitter data set, I conducted a sentiment analysis on this dataset using the “Bing” lexicon, a widely used dictionary of positive and negative terms.16 While sentiment analysis has significant analytical limits, it can be successfully used to locate patterns and inflection points in large textual corpora. It is particularly well suited for Twitter data because the relative uniformity of Tweets allows for valid comparisons across units, while their short lengths make them unsuitable for some other forms of text analysis like topic modeling. Figure 3.10 displays the raw results of this sentiment analysis. Words from the Bing lexicon that are coded as positive are represented on the left and negative words are represented on the right reported by day.
Figure 3.10: Sentiment Analysis (Positive and Negative Words Frequencies by Day) of Twitter Activity on the Delta Smelt, 2007-2018 (N = 13,868 Tweets)
In order to create a measure of net sentiment, I undertook simple subtraction between these two results from the sentiment analysis visualized in Figure 3.10. Figure 3.11 visualizes net sentiment by day (positive minus negative word counts by day), showing that the overall sentiment of Twitter activity about the delta smelt is consistently negative, with bursts of net negativity showing up as downward spikes. Because of Twitter’s instantaneous responsiveness to
16 The sentiment analysis was conducted in R. For information on the Bing lexicon, see: https://www.cs.uic.edu/~liub/FBS/sentiment-analysis.html. 106 events in the world or reported by media organizations, I hypothesize that acute spikes in net sentiment correspond to meaningful events associated with the delta smelt. What were they? After visualizing net sentiment, I identified the calendar dates associated with the deepest outbursts, using the threshold of -75. The result was a list of the dates associated with the deepest downward “spikes” in Figure 3.11. I manually reviewed the Tweets from each of theses dates and was able to attribute a cause for each outburst in negative net sentiment. They can be classified into two broad categories. First are elite cues from conservative media actors or politicians. Second are legal, policy, or scientific events related to the delta smelt and opinion articles responding to that news. This second category includes results in court cases associated with the protections over the delta smelt,17 the results of scientific surveys of the delta smelt surveys showing low prevalence of the species in its habitat, and op-eds responding to either or both of these types of news.18 Consistent with the preceding analysis, the first and deepest of these spikes in net negative sentiment on Twitter corresponds, not to a court case or an actual event in the world of California water, but to Sean Hannity’s September 2009 special on the delta smelt. That this shows up as the most intense episode of net negative sentiment is particularly striking because the volume of users an traffic on Twitter has increased manyfold since 2009. Although Twitter existed during the momentous 2007 Wanger decision, it evoked no significant activity on Twitter. After the Hannity special two years later, however, the majority of spikes in net negative sentiment are associated with legal, policy or scientific events. The final outburst in net negative sentiment in the Twitter data set is associated with responses to President Trump’s Tweet that California’s wildfires are being “magnified and made so much worse by bad environmental laws which aren’t allowing massive amounts of readily available water to be properly utilized.” What makes this especially noteworthy is that the delta smelt was not named in Trump’s Tweets about California’s wildfires at all. This means that by 2018, the president did not even need to invoke the delta smelt directly, which as a policy matter had nothing to do with the wildfire situation or potential responses to it. Hundreds of Twitter users made the connection spontaneously. One such Tweet with 232 “retweets” and 350 “likes” reads, “President [Trump] is right… Every day [Governor] Brown releases billions of gallons into the San Francisco Bay to sustain Delta smelt bait fish. This is a simple distribution issue; there is plenty of water.” The delta smelt is now such an evocative political symbol that it is used to render the unrelated event of a wildfire in California meaningful within a broader national partisan symbolic system.
17 Although it was ultimately upheld, the Wanger Decision ruling underwent a circuitous series of legal appeals and regulatory challenges. See Alagona (2013), Lakoff (2016a; 2016b), Scoville (2019), and Water Education Foundation (2020b) for detailed analyses of these events. 18 The following is a comprehensive list and classification of the dates associated with net negative sentiment below -75. Figure 3.11 simplifies these for the ease of visual interpretation. Elite cue related to the delta smelt (Sean Hannity’s Special): 2009-09-17, 2009-09-18, 2009-09-20. Legal or policy Events: 2010-12-14, 2010-12-15, 2011- 10-21, 2014-03-13, 2015-01-12, 2015-01-25. Delta smelt surveys showing low prevalence of the species in its habitat: 2015-04-07, 2015-04-15, 2015-04-16, 2015-04-19, 2018-01-05. Op-eds responding legal, policy or scientific news: 2015-04-27, 2015-04-30, 2015-09-03. Elite cue unrelated to the delta smelt (Donald Trump’s Wildfire Tweets): 2018-08-06. 107 Figure 3.11: Sentiment Analysis (Net Sentiment by Day) of Twitter Activity on the Delta Smelt with Several Key Events Identified, 2007-2018 (N = 13,868 Tweets)
The results of the sentiment analysis suggest the following sequence of signification, which was unmoored from the delta smelt’s concrete impacts on water conveyance in California as analyzed by Reis, Howard, and Rosenfield (2019). First is an elite cue from partisan entrepreneur Sean Hannity that initially imbued the delta smelt with political significance. (Recall that the 2009 Hannity special was also associated with an acute peak in Google search activity associated with the delta smelt unrivaled by any other events as pictured in Figure 3.7.) Second were concrete events related to the delta smelt that happened in the court system and government agencies that came to be interpreted and amplified through this partisan framing and the associated media coverage that began since the controversy initially took shape (recall that the Wanger Decision received no such attention). Third was an elite cue that was concretely unrelated to the delta smelt, but came to be associated with it by Twitter users, demonstrating the partisan significance the species had gained in the intervening years.
The Uncharismatic Microfauna
Equipped with an understanding of the meaning of the delta smelt controversy, and how it emerged, a remaining question persists. Why is the delta smelt in particular so controversial, when there are other species protections that account for larger quantities of water curtailments in the Delta? Answering this question requires looking to the physical characteristics of the
108 species itself. I claim that the delta smelt’s unique symbolic power owes in part to its status as an “uncharismatic microfauna.” For decades conservationists and biologists have criticized what is perceived to be an inordinate amount of attention on “charismatic megafauna” at the expense of more holistic (and science-based) approaches to protecting biodiversity (Entwistle and Dunstone 2000; Caro and O’Doherty 1999; Small 2012; Ducarme, Luque, and Courchamp 2013; Feldhamer et al 2002). The disproportionate focus on a few charismatic flagship species has even been quantified by economists in contingent valuation studies (Tisdell and Nantha 2007; Kontoleon and Swanson 2003). Critical social scientists have intervened into this conversation by explaining the cultural, economic, and political forces at work in the enduring resonance of charismatic megafauna in the field of environmental conservation. This work has included conceptual engagements with “nonhuman charisma” (Lorimer 2007) and empirical investigations into how the practices of international conservation organizations and zoos are shaped by the appeal of charismatic megafauna (Lorimer 2015; Krause and Robinson 2017). Consider, for example, the emotional pull of the polar bear drowning in a warming arctic. The delta smelt provides a powerful counter-example precisely because of its small size and lack of charisma. Because the Endangered Species Act is blind to such qualities, mandated protective interventions have incidentally created opportunities for partisans looking to articulate California water issues around partisan divisions. A 2014 article in the National Review succinctly illustrates the symbolic power of the delta smelt’s uncharismatic quality.
As fish go, it is undistinguished. Inedible, short-lived, and growing to a maximum length of just under three inches, smelt are of interest to nobody much—except, that is, to the implacable foot soldiers of the modern environmental movement, some of whom have recently elevated the smelt’s well-being above all else that has traditionally been considered to be of value (Cooke 2014).
Conservative politicians have recognized the rhetorical effectiveness of mobilizing the delta smelt’s small size. In a bid for the Vice Presidency, Sarah Palin claimed of Central Valley residents that “a faceless government is taking away their lifeline, water, all because of a 3-inch fish…Where I come from, a 3-inch fish, we call that bait. There is no need to destroy people’s lives over bait” (Bay Area News Group 2011). In 2016, then Republican presidential hopeful Ted Cruz made the appeal to voters that, because of “out-of-control environmental policies, 1.4 trillion gallons of fresh water [are] being dumped into the Pacific Ocean because of a little 3-inch bait fish… In my experience,” Cruz continued, “3-inch fish go great with cheese and crackers” (Neidig 2016). It appears, then, that Congressman Nunes, who has perhaps invoked the delta smelt most frequently in Washington, dubbed the species a “stupid little fish” for a reason. Nunes, however, was not the only elected official to mobilize the fish’s size in Congress. In one of the earliest political speeches to mobilize the species against environmentalists in the Congressional Record, Congressman Dana Rohrabacher enlisted the delta smelt as a recurrent illustration of why the “man-made global warming juggernaut” is in fact, “the biggest power grab in history.” Seamlessly weaving together doubts about the veracity of climate science, the dangers of illegal immigration, and the economic costs of not fully exploiting oil and gas deposits, Rohrabacher warms, “our people will suffer because of concern over a little, tiny, worthless fish that's not even good enough to use as bait” (Rohrabacher 2009). As discussed above, the delta smelt accounts for a much smaller proportion of water curtailment than its more charismatic (and edible) counterpart, Chinook salmon. An ideal
109 research design would include a direct comparison of how these two species were discussed in the media. Unfortunately “delta smelt” and “salmon” are very different lexical objects, creating significant challenges for constructing a valid comparison. One either massively over-counts articles mentioning salmon, pulling in every recipe published by the New York Times, or massively undercounts them with technical terms only used by experts. But given that the protections of these species in the Delta are indistinguishable to laypeople and even most experts, a next best option is to count which opinion articles that mention the delta smelt also mention salmon (or the specification “Chinook”). While most (68%) do not, a significant number (32%) do mention them together. Breaking these down by position taken on environmental protections reveals a clear pattern. Figure 3.12 visualizes these results. Opinion articles espousing a positive view of environmental regulations are somewhat more likely (57%) to mention the species together than not. The vast majority (77%) of anti-environmental opinion articles do not. This suggests a rhetorical virtue of referring to the delta smelt as opposed to salmon when voicing opposition to environmental protections. The Endangered Species Act’s protection of a small, uncharismatic species opened up discursive space for opponents to environmentalism in the public sphere.
110 Figure 3.12: Political Positions of Opinion Articles Mentioning the Delta Smelt by Mention of Terms “Salmon” or “Chinook” (N = 683)
The Delta Smelt, or Climate Change Denial by Other Means
At first glance, environmental struggles appear to be the most straightforwardly material kind of politics. Conflicts over natural resources like water, after all, determine who gets what and how. The case of the delta smelt illustrates a limitation of operating with this lens alone. Rather than seeing the controversy as a direct outgrowth of preexisting interests, I argue that the delta smelt was a vehicle for enrolling California water politics—and the environment more generally—into a broader set of partisan divisions. In short, the delta smelt controversy folded California’s “water wars” into America’s “culture wars.” This controversy did not emerge independently of concrete events in California water policy, but they alone were not sufficient. Measures protective of the delta smelt pursuant to the Endangered Species Act created an opportunity for the exploitation of extant cultural, political, and geographic resentments. This allowed partisan elites to articulate continuity between a narrow set of material interests and a broad configuration of partisan identities which stand in symbolic opposition to liberal environmentalism. In the process, the controversy took on a life of its own, largely disconnected from and wildly disproportionate to the delta smelt’s modest impact on water conveyance in California.
111 Given the contemporary condition of unprecedented environmental partisan polarization, defenders of environmental regulations such as those protecting the delta smelt are overwhelmingly located on the left side of the political spectrum. Understanding anti- environmental attitudes is perhaps a more challenging and urgent task. The evidence presented in this chapter shows that the delta smelt is most meaningful for conservative opponents to environmental regulations. Yet for conservatives, the delta smelt does not simply signify water cutbacks or environmentalists’ different priorities for the uses of natural resources. Put simply, the delta smelt’s meaning is that liberals in faraway cities care more about a “stupid little fish” than they care about you. The controversy thus articulates a moral “us” and an immoral “them,” forging new connections between environmental policies and existing affective partisan divisions. This alternative reading of the delta smelt controversy goes beyond seeing the case as an episode in a distributional water war. By showing how the delta smelt became a symbol of partisan animosity, this study exemplifies a processual and case-analytic complement to the burgeoning body of quantitative work on environmental partisan polarization. Because the delta smelt accounts for a relatively small proportion of water restrictions in California, focusing on the species might seem to be a waste of political capital even for politicians narrowly interested in maximizing the material interests of their constituencies. However, viewing the delta smelt as a political symbol shows why anti-environmentalism can in fact be good electoral politics, even when it comes at the cost of ignoring other potentially existential problems. California’s water infrastructure was built to function in a 20th century climate. The effects of climate change are already placing pressure on that system that is being felt throughout the state. These problems will only get worse, and will be particularly acute for the very constituencies represented by politicians who deny the urgency or reality of climate change. As a political strategy, invoking the specter of the delta smelt is climate change denial by other means. In the short run, it is an electorally expedient way of driving a wedge between the political identities of those vulnerable to the effects of environmental decline, and the politically fraught project of building a world that can withstand the effects of climate change. In the long run, the delta smelt’s symbolic status contributes to a polarized partisan environment that is among the most significant barriers to meaningful action on the greatest environmental threat humanity has ever faced. We are accustomed to thinking of symbolic politics as subservient to material struggles. On the contrary, our material future may hang on the symbolic uses of environmental politics.
112 Conclusion
Scenes from an Extinction
The Estuary: January 15th 2020, 5:45am
I park in front of a chain link fence on the outskirts of the University of California, Davis campus. I’m up well before sunrise to assist in a fish sampling expedition. I will spend the full day in the Suisun Marsh, a liminal space between the Delta and the San Francisco Bay, and an important part of the delta smelt’s critical habitat. “Do you want to join these fun, messy, muddy excursions?” asked the call for volunteers. “Like getting all slimed up by big ol’ carp, splittail, and striped bass? Of course you do, so sacrifice a day to spend out on the largest contiguous marsh on the western coast of the U.S.” A few hours later I would find myself hauling in trawl nets, and calling out counts and measurements of fish, crustaceans, arthropods, detritus and mud balls. The data collected in this survey contributes to knowledge of the health of the estuary, including the prevalence, distribution, and sizes of various fish. After jumping into the back seat of a large van full of supplies and towing a boat, it becomes clear that I won’t be seeing any delta smelt today. “They’re gone,” shouts back Teejay O’Rear, the lab supervisor and leader of the sampling program, as we veer onto the freeway. In this case, not finding the delta smelt is both a prediction and a hope. The Endangered Species Act includes a provision for “incidental take” permits. Scientific studies like the survey in which I am about to participate play an indispensable role in the application of the law, but they inevitably involve harming and sometimes inadvertently killing a small number of protected organisms. If this survey catches its tiny permitted allotment of delta smelt, it has to shut down for the rest of the year. Teejay isn’t worried about this happening, though. While not formally extinct in the wild, our probability of actually catching a delta smelt is minuscule. The estuary is not what it used to be. Teejay suggests that, well intentioned as it may be, the current management regime isn’t bringing it back into a state that would allow the delta smelt to reclaim its place as one of its most prevalent species. In the past we focused on promoting commercially valuable fish, poisoned rivers and killed everything else, he continues. We don’t do that anymore, but our overall approach hasn’t as much as we would like to think, he says. It’s simply that we changed which fish that we care about. Now, explains Teejay, we have shifted all of our focus to Endangered Species Act-listed species—even resorting to killing off predators that eat them—but we aren’t actually building an ecosystem that can help them thrive.1
The Laboratory: March 11th 2020
I’m back at the UC Davis campus, this time not en route to the estuary, but for a visit to the Genetic Variation Laboratory. The GVL, as it is known in Davis, is the site of the genetic sequencing that determines which pairs of fish should mate in order to optimize the captive population of delta smelt in the Fish Conservation and Culture Laboratory. In addition to touring the facility and meeting the lab staff, I am invited to present my research on the delta smelt controversy at their lab meeting.
1 Author’s field notes. UC Davis Suisun Marsh Fish Study, 15 January 2020. 113 I’m nervous about how the lab staff will receive my work, given my status as a non-biologist. To my relief, my presentation resonates, invoking applause and at times morbid laughter. Afterwards, one member of the staff poses the question of how I understand the objectivity of science. I respond, cryptically leaning on Bourdieu (1975), that because scientists are each other’s audiences, they have an incentive to produce objectively valid research. However, I provide a Weberian qualification. Because research programmes are shaped by external institutional contexts, the substantive questions that scientists ask are often informed by forces beyond their control. Why is there so much scientific activity surrounding the delta smelt? This, I say, probably has something to do with the Endangered Species Act and California’s water projects. Science borrows its value presupposition from the law, which is itself bound up with the operation of the state’s extractive infrastructure. At this point a scientist intervenes in agreement, but in terms blunter than I would have been comfortable using in their space. Much of the research being done on the delta smelt (including the work of their lab), they say, will not actually help the delta smelt or the Delta ecosystem. Rather the science is a product of “guilt money,” funneled from the water projects to scientific studies which allow them to keep running smoothly, at least most of the time.2 On close inspection, this has perhaps never been more accurate. Recent developments show how extractive imperatives are shaping the direction of delta smelt research, often at odds with the overarching concerns of conservation scientists. Although the scientists studying the delta smelt almost uniformly express a desire to restore of the health of the estuary to make it hospitable for the species, the GVL’s work has now become formally incorporated into the Trump Administration’s long-term plan for operating California’s water projects at maximum capacity.
A Biological Opinion, Contested
In June 2019 federal scientists produced a draft biological opinion upholding the existing policies protecting the delta smelt pursuant to the Endangered Species Act. However, in a breech of standard protocol, David Bernhardt, former Westlands Water District lobbyist, and—as of this writing—current United States Secretary of the Interior, directly intervened in the process, resulting in the reassignment of the scientists who wrote the unreleased draft. Although Bernhardt insists there is no conflict of interest, his move sounded ethics concerns, given the “revolving door” provision of the Trump Administration’s ethics pledge. The new biological opinion that was finally released in October 2019 departed significantly from the June draft as well as the extant biological opinion from 2008 ordered by the Wanger Decision. It significantly weakened the protections of the delta smelt, allowing for more water to be conveyed to Central Valley agricultural interests (Davenport 2019a; Davenport 2019b; Boxall 2019). Here is where the GVL scientist’s notion of “guilt money” becomes relevant. Details in the biological opinion lend credence to the expressed concerns of scientists that introducing delta smelt from the laboratory into the estuary may serve as cover for heightened extraction without addressing the underlying causes of the species’ decline, as discussed in chapter two. The laboratory population of delta smelt began as a site for testing the effectiveness of policy proposals that might promote the recovery of the wild population. It later became understood as an insurance policy to hedge against wild extinction. The 2019 biological opinion makes the first official claim on this insurance policy. It calls for ramping up the production of laboratory fish followed by an annual program to supplement the wild population with laboratory-reared fish
2 Author’s field notes. UC Davis Genetic Variation Lab, 11 March 2020. 114 indefinitely. The document reports that the laboratory currently “exports approximately 33,000 fish of different life stages for use in research” while an additional “32,000 adults are reared in the refuge population” each year. The new policy includes additional funding to “support expansion of facilities to maintain these fish and increase rearing capacity to provide up to approximately 125,000 adults within 3 years” as well as building a larger “Conservation Hatchery” to take over supplementation by 2030 (FWS 2019).
A New Battle, a Familiar Script
Although the prospect of introducing laboratory-raised fish is contentious within the scientific and policy communities, it is ancillary to the most significant legal questions posed by the new biological opinion. The release of the 2019 biological opinion marks the latest episode in a continuous battle over water conveyance restrictions associated with protecting the species. On February 20th 2020, the state of California filed a lawsuit against the Trump Administration, claiming that the new biological opinions are not compliant with the Endangered Species Act (Becerra 2020). The lawsuit, which is pending as of this writing, was invoked in a May 2020 meeting between President Trump and Republican members of Congress focused on the COVID-19 pandemic. “My folks have been going to work,” asserted Congressman Devin Nunes in his remarks to the president. “And, you know,” he continued, “we expect the guys that are cutting meat or working in a grocery store, working in these packing plants, if we expect them to go to work, we ought to go to work as members of Congress.” In his response, President Trump immediately launched into the topic of water:
You know, we throw millions of gallons a day of water into the Pacific Ocean that comes from up north. And when I saw Devin, I say, “How come those fields are all barren? They’re beautiful land.” All barren, brown. And then they’ll have a little patch like this, a little patch in a corner, or a little patch on one side, and it’s beautiful green. You could see it was so — and I said, “How come so much of it — 90 percent, 95 percent — it looks like a desert? And you have this…” And he said, “We don’t have water.” I said, “You mean you have a drought.” This was a long time ago we met, right? Right at the beginning, before I got elected. And I said, “You mean you have a drought. And you said “No, we don’t have a drought. We send millions of gallons of water out to the ocean to protect a very — well, I’ve never say anything is that important; I think everything is important to protect — go ahead. What’s the name?
“The smelt. Delta smelt,” Congressman Nunes responded. “So you have a delta smelt that’s not doing well,” the president continued:
It’s getting no water, and it will do a lot better if it had water… All you need now is a signature of the governor. And those millions of gallons of wasted water going into the Pacific, that’s like a drop in the bucket. It doesn’t mean anything to the Pacific… If you get Gavin’s signature, you’re going to have water from Los Angeles all the way up. And it’s the most incredible thing I’ve ever seen. I thought — I thought it was a drought and… [h]e said, ‘No, we have tremendous amounts of water, but we send it out to the Pacific Ocean.’ And it was over the smelt (The White House 2020).
President Trump’s reference to “Gavin’s signature” is an oblique reference to the lawsuit between California and the federal government. The regional and partisan lines being drawn how they are, the case has the makings of yet another outburst of public outrage over the delta smelt. This is especially likely if the Trump Administration’s biological opinions are struck down. Although it would represent a material loss for Westlands Water District and others interested in reducing barriers to maximizing the conveyance of Delta water, such an outcome would provide 115 conservative partisan entrepreneurs another opportunity to mobilize the species as a symbol of the excesses of liberal environmentalism. Similar to the timing of the Wanger Decision at the onset of the Great Recession, it also would provide a strategic outlet for grievances associated with the economic downturn caused by the COVID-19 pandemic, which has itself become saturated with partisan significance via polarized approaches to preventative stay at home orders, and the political symbolism of prophylactic face masks.
Social Differentiation and Environmental Decline
These interlocking episodes—all of which transpired within twelve months of this writing—offer a vivid sense of how various social domains have become entangled with the same entity, despite seeing it in different ways. As the delta smelt has approached extinction, responses in the domains of science, law, and politics invoke different understandings of environmental decline, and provoke disparate reactions to it. These distinct responses, though grounded in specific visions of nature immanent in particular domains, consistently produce effects felt beyond their points of origin. The dominant framework for understanding Western water politics (if not environmental politics in general) presents nature as an object of domination, rendered useful, calculable, and controllable. In this genre of explanation reason is unitary, instrumental, and totalizing. The argument of this dissertation goes beyond such an account. It does not deny the classic thesis of the disenchantment of nature. It instead emphasizes its counterpart, differentiation. A constitutive feature of the modern condition less commonly foregrounded in the study of environmental politics is that nature is simultaneously rendered intelligible and meaningful in distinct ways that are irreducible to each other. Reason, in this view, is not unitary, but fragmented. Nor is it narrowly instrumental. Instead it is refracted through substances for which there is no common currency. In the story of the delta smelt, no vision of nature dominates absolutely, but this does not mean that all domains stand in relations of equality. Rather, claims about relations among domains, lateral or hierarchical, rest on attention to the specific nature of the interventions into the nonhuman environment that they make possible, and to how these interventions overflow into other domains. Reengineering California’s river systems in the mid-20th century had enduring material effects that cannot be erased by the most concerted efforts within the domains or science, law, or even politics. Science derives its policy relevance from law, yet environmental law is utterly indeterminate without scientists’ indispensable role as compliance professionals. The public sphere controversy and electoral political dimensions of the case were undoubtedly incited by legal interventions. However, the controversy quickly became unmoored from its conditions of emergence as the delta smelt crystalized as a symbol of partisan animosity. Although the ultimate outcome of that controversy remains uncertain, it has the potential to significantly overflow back into the other domains that made it possible. For instance, depending on the outcome of pending court cases, officials may be successful in mobilizing the political ill- will against the delta smelt to undermine the Endangered Species Act, or at least its application in the context of California water. The core antinomy that underlies the argument of this dissertation can be reduced to two claims. First, there is one nonhuman environment in the brute physical sense. Second, we interact with this nonhuman environment by way of many distinct social domains that make it available to us in different, and often irreconcilable ways. To embrace this antinomy is to reconcile two
116 approaches to the question of nature that are often understood to be opposed. For culturalists, nature is in the eye of the beholder, a construction of social groups or institutions. For those who seek to imbue the nonhuman environment with causal agency on its own, nonhuman “actants” like the delta smelt are participants in their own stories, alongside the humans who, in this case have disrupted its habitat and responded to its decline. The proposal of the intervention cascade begins by granting both premises. It fixes the analysis on how interventions grounded in culturally constructed visions of nature overflow into others. In subsequently implicated domains, nature takes on different meanings, inducing further interventions and overflows. This analysis goes beyond the culturalist reduction of nature to what people make of it, while resisting Actor-Network Theorists’ implicit pretension of observing the nonhuman environment without the mediation of culture. Instead, it focuses on how environmental entities become implicated in successive social domains over time, despite each domain specifying nature in disparate ways. The intervention cascade is a theory of how environmental problems emerge, yet the delta smelt continues to anchor relations among social domains. The process by which the delta smelt became a problem left an enduring imprint on the patterns of action within and across domains. Actors embedded in each domain pursue the ends privileged by it. Despite their efforts, they are unable to attain unmitigated leverage over other implicated domains to see those ends through to completion. Scientists continue to study the delta smelt, yet their proposals are not fully translated into policy. Regulatory policies and court cases pursuant to the Endangered Species Act continue to move forward, in the face of significant attempts by the Trump Administration to circumvent them. Partisan entrepreneurs in the media and electoral politics continue to beat the same drum about the delta smelt’s significance irrespective of its actual effects on water conveyance. The emergent patterns of these relations among domains suggest a tension inherent in the study of the politics of environmental decline in a differentiated society. On the one hand, as the delta smelt has declined and its environment has destabilized, scrutiny of the species has become more intense and coherent within individual domains. It is respectively studied, regulated, and argued over in more extensive and consistent ways as it approaches extinction. On the other hand, the delta smelt’s decline has resulted in further distance among the way these domains see the same entity. In other words, the ways that the delta smelt is seen across these domains have become more incongruent as the species has approached extinction. The two sides of this tension—internal coherence within domains, and external incoherence among domains—correspond to the two constitutive dimensions of Max Weber’s original conception of rationalization: disenchantment and differentiation. While observers of environmental politics have long emphasized disenchantment, this study suggests that the diagnosis of the modern relationship with nature is likely to be incomplete without also accounting for the consequences of differentiation. However, Weber and theorists of differentiation after him suggest that the autonomy of domains is their defining feature. By contrast, this dissertation tracks the dynamic story of the consequences of many domains being implicated in the same nonhuman environment. I argue that a powerful way of explaining the emergence and reproduction of environmental problems is the dialectical interplay of domains that share jurisdiction over the same external entity. Understood in this way, the differentiated condition has significant implications for the sociological study of environmental decline and destabilization in general, and climate change in particular.
117 Studying Climate Change in a Differentiated Society
The preceding analysis provides lessons for the study of climate change at two levels. The first level concerns the relations among the specific domains that organize this dissertation. The findings in chapter one concern the relationship between knowledge of environmental decline and extant relations of resource extraction and environmental control. The delta smelt emerged as an object of knowledge and environmental concern by way of a change in how the nonhuman environment was instrumentalized for human ends. Similarly, a foundational component of the sociological analysis of climate change should be to understand how domains external to science—and especially, extractive and manipulative relations to the nonhuman environment— have shaped the scientific articulation of the problem. The findings in chapter two of this dissertation suggest that the sociology of law is an under- exploited subfield in the analysis of climate change. If climate change is an object of state regulation, it is inherently a problem for the intersections of science and law. Because there is often significant distance between the visions of nature immanent in scientific disciplines and those presupposed by positive law, implementing policy that is scientifically sound and legally compliant requires the construction of spaces of compatibility across the two domains. The compliance relations through which this process takes shape, and how such attempts break down are essential topics for the sociology of climate change. Chapter three illustrates the symbolic use of environmental politics. The case of the delta smelt shows that environmental decline, as mediated by the legal system, can actually trigger environmental denial from ideological opponents to environmentalism. Similarly, the concrete effects of climate change may exacerbate political polarization, rather that inducing a coherent collective response to the problem. Further, while powerful economic interests undoubtedly configure the shape of environmental politics overall, the findings in chapter three suggest that the terrain of climate politics will be rich with political symbolism. This is already plainly evident. It is no accident that, when seeking to undermine the proposal for a Green New Deal, right wing partisan entrepreneurs tend not to frame their opposition around substantive policy disagreements. Instead, they focus on quotidian objects with partisan significance. “They want to take your pickup truck, they want to rebuild your home, they want to take away your hamburgers,” exclaimed former aide to President Trump, Sebastian Gorka at the 2019 Conservative Political Action Conference. “This is what Stalin dreamt about but never achieved” (Langlois 2019). The second level at which this dissertation’s analysis provides lessons for the sociological study of climate change derives from the general precepts of its unifying theoretical proposal. It suggests that responses to climate change will be defined by clashes among social domains that are mutually implicated in that same changing environment, yet react to environmental decline and destabilization in different ways. Further, various domains will be forced to react to each other’s discordant reactions. The disarticulation of social domains can be expected to emerge as a major barrier to effective social responses to climate change. The sociological analysis of climate change should attend to how actors build bridges among social domains in the face of this obstacle, and how such bridges break down in spite of these efforts. The differentiated condition has made it possible to order the complexity of modern life in the absence of a unifying source of authority. Conditions of environmental decline pose two threats to this order. First, and most obviously, they directly threaten the material foundations of society. Second, as this dissertation’s proposal suggests, reversing and mitigating environmental
118 decline requires significant coordination across many social domains precisely as they face pressures to disarticulate further. If nothing else, the sociologist is positioned to chronicle efforts to overcome these barriers. At best, sociological knowledge may contribute to brokering a green truce among our warring gods.
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136 Methodological Appendix: Interviews and Observations
This dissertation draws on a wide array of evidence. While the most important sources that support specific factual claims throughout this dissertation are documentary, self reports from many experts and professionals working in the fields of California water, environmental policy, and conservation science in and around the Sacramento-San Joaquin Delta provided me with indispensable contextual knowledge that made navigating this project possible. In this methodological appendix, I list formal interviews I conducted in the course of this research, and major events I attended as part of my observational research. Names of interviewees are listed for those who agreed to be identified. I cite interviews and field notes from observations to support specific claims throughout this dissertation in footnotes. Many are not cited, but contributed to the development of the project nonetheless. In each chapter I discuss other data sources, including documentary evidence and news and social media data, which are not detailed here to avoid undue redundancy. This methodological appendix understates the extent to which I am indebted to interlocutors in the field. I do not inventory the countless informal conversations and correspondences with knowledgeable individuals in the course of my field work. I observed many dozens of presentations, roundtables, and question-and-answer sessions given by scientists, policy professionals, legal experts, and elected officials. Attending these presentations and conversing with experts in a variety of settings (including conferences, workshops, facility tours, and a fish sampling expedition) provided me with invaluable contextual knowledge. In the aggregate, this experience helped me transition from a complete outsider to the field in 2015, to someone who would present my own work to delta smelt scientists at their laboratory meeting, and be invited to consult on Delta policy matters by a state agency in 2020.
Interviews Interviews ranged from 30 minutes to 2.5 hours (the vast majority were 60-90 minutes), and were conducted in-person or on the phone. Most were audio recorded. All direct quotations from interviews referred to in this dissertation were verified with a recording. The list below does not include dozens of less formal, but nonetheless helpful exchanges with individuals in the field and via email.
• Julian Fulton: California water researcher, Instructor and Doctoral Candidate in the Energy and Resources Group, University of California, Berkeley, March 2015 • Richard Norgaard: Member and Chair of the Delta Independent Science Board and Energy and Resources Group Professor, University of California, Berkeley, March 2015 • Holly Doremus: Member, Delta Social Science Task Force and Professor of Law, University of California, Berkeley, January 2016 • Tien-Chieh Hung, Director of the Fish Conservation and Culture Laboratory, September 2016 • Alejo Kraus-Polk: Delta researcher and Doctoral Candidate in Geography, University of California, Davis, March 2017 • Peter Moyle: Distinguished Professor Emeritus in the Department of Wildlife, Fish and Conservation Biology and associate director of the Center for Watershed Sciences, University of California, Davis, September 2018 (two distinct interviews were conducted that month)
137 • Bruce Herbold: fish biologist, consultant, and retired Environmental Protection Agency Scientist, September 2018 • Ted Sommer, Lead Scientist, California Department of Water Resources, October 2018 • Wim Kimmerer, Research Professor, Romberg Tiburon Center for Environmental Studies, San Francisco State University, November 2018 • Jon Rosenfield, Senior Scientist, Baykeeper (and former conservation biologist at the Bay Institute), February 2019 • Richard Norgaard (second interview), February 2019 • Holly Doremus (second interview), May 2019 • State Water Project Operator (anonymous), April 2019 • Oliver Symonds: Senior Public Information Specialist, Contra Costa Water District, April 2019 • Louise Conrad: Deputy Executive Officer for the Delta Science Program, Delta Stewardship Council (and former Department of Water Resources fish biologist), May 2019 • Alejo Kraus-Polk (second interview), August 2019 • Teejay O’Rear: Lab Supervisor, Dr. Peter Moyle Laboratory, University of California, Davis, January 2020 • Caroline Newell, Junior Specialist, Dr. Peter Moyle Laboratory, University of California, Davis, January 2020 • Ann Holmes: researcher at the Genetic Variation Laboratory and PhD Candidate Unit Graduate Group in Ecology, University of California, Davis, January 2020 • Cory Copeland, Environmental Scientist at Delta Stewardship Council, January 2020 • Ann Holmes (second interview), March 2020
Observational Research: Major Events Attended These events were attended in-person unless otherwise noted. I also took several less structured trips to the Sacramento-San Joaquin Delta and surrounding areas to explore landscapes, infrastructures, and sites of historical interest between 2016 and 2020.
• Delta and Longfin Smelt Symposium: Delta and Longfin Smelt: Is Extinction Inevitable?, University of California, Davis, March 2016 (attended online asynchronously) • California Water Symposium, University of California, Berkeley, April 2016 • Moyle, Peter and Jason Baumsteiger. “Assessing Extinction in Fishes: Preparing for Extinction of Delta Smelt.” Delta Stewardship Council Brown Bag Lecture, Sacramento California, August 2016 (attended online synchronously) • Facility Tour, Fish Conservation and Culture Laboratory, Byron California, September 2016 • Anticipating and Resolving Conflicting Management Goals: Invasive Plant Eradication and Endangered Species Recovery in Coastal and Aquatic Systems Workshop, University of California, Davis, September 2016 • Delta Science Conference, Sacramento, California, November 2016 • Building Capacity for Regional Sustainability in California: A Water Summit, Sacramento, California, April 2017
138 • The Delta Smelt Culture Program: From Experiments to Supplementation Workshop, Davis, California, May 2017 • State of the Estuary Conference, Oakland, California, October 2017 • Managed Relocation Under A Changing Climate Symposium, University of California, Davis, December 2017 • Delta Science Conference, Sacramento, California, September 2018 • Ecological and Physiological Impacts of Salinization of Aquatic Systems Symposium, University of California, Davis, September 2018 • Full Day Facilities Tour, Contra Costa Water District, April 2019 • Incentivizing Groundwater Recharge Symposium, University of California, Berkeley, September 2019 • State of the Estuary Conference, Oakland, California, October 2019 • University of California, Davis Fish Sampling Expedition, Suisun Marsh, January 2020 • Facility Tour and Laboratory Meeting, Genetic Variation Laboratory, University of California, Davis, March 2020
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