Scaling the baseline: Technicalities and environmental regulation in Owens Valley, California

• Published date: 01 January 2021
• Author: Alyse Bertenthal
• Date: 01 January 2021
• DOI: http://doi.org/10.1111/lapo.12162

ORIGINAL ARTICLE

Scaling the baseline: Technicalities and environmental

regulation in Owens Valley, California

Alyse Bertenthal

Wake Forest University School of Law, North

Carolina, USA

Correspondence

Alyse Bertenthal, Wake Forest University

School of Law, 1834 Wake Forest Road,

Winston-Salem, NC 27106.

Email: bertena@wfu.edu

Funding information

American Council of Learned Societies;

Andrew W. Mellon Foundation; John

Randolph Haynes and Dora Haynes

Foundation National Science Foundation:

1459789

Abstract

If we want to understand the logic of environmental

regulation—as well as its uneven effects—we should

look to how regulators and regulated alike generate

and deploy baselines. In this article, I chart the scalar

frames used to mark the “natural”conditions that are

perceived as normal, desirable, and worthy of legal

protection and intervention. I explore these frames and

resulting legal standards through the case of Owens

Lake, California, which has long been a subject of state

efforts to regulate resources and remediate pollution.

This case study provides an opportunity to understand

how presumed technicalities of environmental gover-

nance, such as baselines, are constructed and deployed.

1|INTRODUCTION

“If you could fix any single environmental enforcement regulation or policy, what would that

be and why?”For a minute, there was silence. From my table at the back of the room, I waited

expectantly. After all, the question had been asked of environmental justice leaders in Califor-

nia, who had been selected for the closing plenary panel of the 2020 Environmental Health, Jus-

tice, and Enforcement Symposium precisely because of their proven experience and

commitment to advocating for a better environment for the state’s most vulnerable communi-

ties. So I was surprised when Dr. Joseph Lyou, President of Communities for a Better Environ-

ment, volunteered what at first seemed to be an oddly technical response: “If I had one thing to

change,”he said, “I would change the consideration of CEQA [California Environmental Qual-

ity Act] baselines. . . [because] if you go into a contaminated community—an environmental

justice community—that contamination is considered baseline, and I don’t think it should be.”

In Dr. Lyou’s view, the baseline—which is a standard feature of environmental law and policy

(Spezio, 2018)—is the primary obstacle to effectuating change in environmental justice commu-

nities because baselines normalize degradation and existing inequalities.

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CEQA—which has been called the “most important environmental protection law in [Cali-

fornia]”—continues to play a vital role in assuring that state and local agencies in California

DOI: 10.1111/lapo.12162

©2021 University of Denver/Colorado Seminary and Wiley Periodicals LLC.

30 Law & Policy. 2021;43:30–50.wileyonlinelibrary.com/journal/lapo

evaluate, disclose, and avoid or reduce the potentially adverse environmental consequences of

their actions (Planning and Conservation League, 1997, p. 7). Yet Dr. Lyou’s comments offer

an important reminder that even progressive laws can play a role in perpetuating injustice

(Barraclough, 2009; Delaney, 2016; Hernandez, 2018). Law creates inequality through omission

by failing to extend adequate protections to all people and communities (e.g., Bullard, 1996;

Edwards et al., 2020). Less frequently acknowledged, but no less significant, is what Dr. Lyou

intimated through his comments: that inequality also results from the practices, materials, and

logics that “make”law what it is (Latour, 2010). Instruments such as the baseline, and practices

such as baselining,

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are “technicalities”of law (Riles, 2011, p. 89) that must be “recognized and

taken seriously if we are to understand what law does and how it works”

(Blomley, 2014, p. 145).

My discussion of these questions is grounded in a case study of recent efforts to mitigate

environmental harm and promote conservation of species on Owens Lake in Inyo County,

California. Situated in a region widely characterized as a natural laboratory for observing con-

temporary struggles over access to resources and environmental conflict in the western United

States (Kahrl, 1983; Liebcap, 2007; Madrigal, 2014), this study draws from primary materials,

interviews, and participant observation to examine attempts to balance competing priorities of

habitat restoration, water conservation, and dust control, while attending to the baselining

practices that have shaped those efforts.

Because the need for legal intervention is often pinned to a justification based on deviation

from norms, the identification of cognizable standards—which we generally refer to as

baselines—is a significant means through which law derives its authority. In this article, I show

that the baseline is not a predetermined, objective standard, but instead is the subject of intense

contestation and manipulation as people endeavor to manage systemic variability and produce

particular forms of desirable environments. The case study described here provides an impor-

tant opportunity to understand how baselines come to be and how the emplacement of baselines

along different scales can sway both efforts to map environmental settings and regulatory

efforts to control those settings.

In important and underappreciated ways, baselines are fundamental to contemporary envi-

ronmental regulation and distribution of environmental benefits and harms. Underlying the jus-

tification for regulatory intervention is the assumption that harm is a factual description, to be

observed and measured through empirical calculation of divergence from a putatively neutral

baseline. Overall, there remains a tendency to accept the baseline as an unproblematic starting

point for analysis rather than as the embodiment of normative choices about what can and

should constitute an acceptable standard (Aagaard, 2010). It is only through establishing con-

nections with a baseline that certain actions will be identified as risky and certain actors will be

identified as requiring regulation (Engel-di Mauro, 2020). Interrogating baselines and base-

lining can thus reveal the most fundamental “legal mechanisms”of environmental governance

(Valverde, 2009, p. 153) while also clarifying the fundamental values and intentions underlying

it (Beerman & Singer, 1989; Ureta, 2018, p. 344). As Ureta et al. (2020, p. 2) contend, baselines

scaffold environmental inquiry, evaluation, and intervention; and as baselines change, so, too,

do possibilities for people and place:

Baselines . . . [are] everywhere, working stealthily and behind the scenes to channel

ecological restoration efforts towards particular historical periods or reshaping the

analysis of soils in an abandoned landfill, weaving together new topographies of

place even as they erase[] alternative frameworks for understanding these same

places.

Despite this, the legal and social science literature rarely attends to baselines and baselining

(Ureta, 2018; Ureta et al., 2020). Yet the ways in which baselines are constructed and contested,

LAW & POLICY 31