Science, and transportation united states senate

~ W. Va. Code sec. 29-2B-13.

" : This question of proof is very similar to that which is faced by the weather modifies

in attempting to prove that certain waters are his since he caused them. See W. Fischer,

• Weather Modification and the Right of Capture." S Natural Res. Lawyer 639 , 645—651

(1976).

35 See. e.g. Davis and St. Amand. "Proof of Legal Causation in Weather Modification

Litigation : h'einbold v. Sumner Farmers, Inc.. and Irving P. Krick, Inc." 7 J. of Weather

cation 127 (April 197r>) ; 4 "Waters and Water Rights" 478-479 (R. Clark, ed. 19701.

6 The Weather Modification Law Project Staff. University of Arizona. School of Law.

"The Legal Implications of Atmospheric Water Resources Development and Management!

12 (1968) : set? also. R. Johnson. "Weather Modification Legal Study" 2-4, prepared for

the Weather Modification Advisory Board, Feh. 28, 1977.

455

utmost care." 37 In determining whether cloud seeding is an abnor-

the following factors:

(a) Whether the activity involves a high degree of risk of some

harm to the person, land, or chattels of others ;

(b) Whether the gravity of the harm which may result from it

is likely to be great ;

(c) Whether the risk cannot be eliminated by the exercise of

reasonable care ;

(d) Whether the activity is not a matter of common usage;

(e) Whether the activity is inappropriate to the place where

it is carried on ; and

(/) The value of the activity to the community. 38

No case has been found where a court characterized weather modi-

fication as ultrahazardous and therefore subject to strict liability;

however, this may occur in the future particularly with regard to

certain types of attempted weather modification such as that involv-

ing hurricanes.

Nuisance is another liability theory which may prove useful in

weather modification cases. Nuisance has been described as conduct

whi h . . invades an owner's interest in the use and enjoyment of

his land, and such invasion is intentional and unreasonable, negligent

or reckless or regarded as an abnormally dangerous activity.' 7 39 Con-

troversies over nuisances are often resolved by balancing the utility

of the defendant's conduct with the harm it causes. 40 Due to these

characteristics of nuisance, it has been regarded by some writers

. . as potentially the most useful in weather modification cases.'' 41

However, it should be noted that a Colorado statute specifically pro-

vides that weather modification is not a public or private nuisance. 42

Negligence ma} T also be used as a theory for recovery in weather

modification cases. There are four main elements which are necessary

to provide a cause of action using negligence. There must be: (1) A

duty recognized by the law. which requires the actor to conform to

a certain standard of conduct; (-2) a failure to conform to the stand-

ard required: (3) a reasonably close causal connection between the

conduct and the resulting injury; and (4) actual loss or damages

suffered by the plaintiff. 43 Aside from the difficulties presented by show-

ing a causal connection, another difficulty with the application of this

theory to weather modification is that a standard for performance

must be established against which the weather modifier can be

measured.

Trespass as a theory of tort liability may also prove to be applicable

to weather modification. Trespass may consist of an entry of a person

or thing upon land which is in the possession of the plaintiff. 44 The

rejection of the "ad coelum" doctrine in United States v. Causby, 328

37 4 Restatement of Torts sec. 319.

38 R. Davis. "Weather Modification Litigation and Statutes." in "Weather and Climate

Modification" 773 (ed. W. Hess 1974).

» Id.

° R. Davis. "Weather Modification Litigation and Statutes", in "Weather and Climate

Modification" 773 (ed. W. Hess 1974).

42 Colo. Rev. Stat. sec. 3R-20-123.

«Prosser Torts sec. 30 (4th ed. 1971).

** Id. sec. 13.

456

U.S. 256 (1945) , indicates that the flight of an airplane over a person's

be argued that the release of particles into the air by an airplane or

by a weather modification station on the ground might be considered

a trespass if they invaded the plaintiff's land. It could also be argued

that rain, hail or other precipitation produced by weather modifica-

tion would be a trespass since it did not fall there naturally but was

produced artificially. 45 These arguments could be supported by citing

various cases which have found a trespass even where invisible or

microscopic particles have entered on the plaintiffs land they have

caused harm. 46

In addition to the various types of tort liability discussed above,

weather modifiers may also be held liable for pollution or for adverse

environmental impacts. Weather modification not only attempts to-

change the environment by producing precipitation but also adds small

quantities of silver iodide or other artificial nucleants to the water or

other precipitation it causes. In Pennsylvania Natural Weather Asso-

ciation v. Blue Ridge Weather Modification, 44 D. & C. 2d 749 (1968) ,.

the court discussed the possible environmental damage which could be

done by weather modification and quoted a report of a bureau of re-

clamation which stated the artificial nucleants used in cloud seeding

are to varying extents poisonous. However, the court held that there

was no more than a possibility of harm and so did not issue an injunc-

tion. It should also be noted that the National Environmental Policy

Act of 1969, 42 U.S.C. § 4321 et seq., may be relevant when weather

modification is federally sponsored. 47 For example an environmental

impact statement would be necessary in certain circumstances where

the Federal Government was involved.

DEFENSES WHICH MAY BE RAISED AGAINST CLAIMS OF LIABILITY

In addition to the general defense that the plaintiff has failed to

establish a cause of action, certain other defenses may be available to

a weather modifier. These would include immunity, privilege, consent

and waste.

If the weather modifier was operating under the auspices of the

Federal, State, or local government, the doctrne of sovereign immunity

from suit may be employed. The Federal Tort Claims Art, 28 U.S.C.

§ 2671 et seq., waived certain immunities of the Federal Government;

specificallv, its immunity from liability from the negligent or wrong-

ful acts of its employees who are acting within the scope of their em-

ployment. This act kept immunity for the exercise of discretionary

functions, however. It has been stated that the application of this doc-

trine to weather modification on the Federal level means that :

Federal weather modifiers, then, may expose the United States to liability for

injury careless performance of their day-to-day operations ; but likely the Federal

Government will be immune from liability for its decision to conduct weather

modification operations and for its plans relating to the operations. 48

*' Note, "Legal Aspects of Weather Modification in Texas," 25 Baylor L. Rev. 501, 509-510

* n Proper Torts, sop. 13 (4th od. 1071).

47 Son R. On vis. "Wonthor Modifion tion T^mr Developments." 27 Oklahoma L. Rev. 400,

430 430 (1074) : "Wenthor Modification." hearings hefore the Subcommittee on the Envi-

ronment and the Atmosphere of the House Committee on Science and Technology. 04th

Cong.. 2d soss. 421 420 (1070). ( gta tement of ihc Natural Uosources Defense Council, Inc.)

48 4 "Waters and Water Rights" 403-404 (R. Clark, ed. 1970).

457

The doctrine of sovereign immunity with regard to the States is in a

State employed weather modifiers in some cases. It should also be

noted that eight States, Colorado, Illinois, Kansas, North Dakota,

Oklahoma, Texas, Washington, and Wyoming, statutorily mandate

that the State is immune from certain liability for weather modifica-

tion. 49

The application of the doctrine of sovereign immunity to local gov-

ernments has resulted in a distinction between proprietary and govern-

mental functions. It has been stated that :

The application of this most unwieldly and unreliable test to weather modifi-

cation will not be easy. For instance, a municipality's operation of a waterworks

for supplying water to its inhabitants (which would seem at first glance to be

a governmental operation) has been held to be a proprietary operation — sub-

jecting the municipality to liability in tort. Thus, water supply augmentation

through precipitation modification may well be a part of that proprietary

function. 50

Public necessity could also be argued as a defense to liability. This

defense has actually been suggested in two cases although it was not

determinative in either of them. In Slutsky v. New York, 97 N.Y.S. 2d

238 (1950), resort owners had filed for a temporary injunction to pro-

hibit New York City from engaging in experiments which attempted to

produce rain. The court held that these experiments would not inter-

fere with the plaintiffs resort business "to any appreciable extent" and

so denied the injunction. In arriving at this holding, the court empha-

sized that it must balance the competing interests and stated that "The

relief which plaintiffs ask is opposed to the general welfare and public

good. * * *" Similarly, in Pennsylvania Natural Weather Association v.

Blue Ridge Weather Modification Association, 44 D. & C. 2d 749

(1968) , the court refused to issue an injunction in the absence of proof

that damages resulted from weather modification activities but did dis-

cuss public necessity. The court there stated :

No individual has the right to determine for himself what his needs are and

produce those needs by artificial means to the prejudice and detriment of his

neighbors. However, we feel that this cannot be an unqualified right. Weather

modification takes many forms and produces, or appears to produce, desirable

effects. For example, there is fog suppression, lightning suppression, and hail

suppression. In additon, cloud seeding has been used and will continue to be

used to produce rain to relieve the water shortage in our urban areas. We feel then

that weather modification activities undertaken in the public interests, and under

the direction and control of governmental authority should and must be

permitted. 51

The consent of a landowner to weather modification which may

affect his land may also be raised as a defense to liability. In addition,

a weather modifier could also attempt to raise as a defense the public

policy against waste. 52

INTERSTATE ALLOCATION OF ATMOSPHERIC WATER

Weather modification activities and their results do not always fall

neatly inside State boundaries. When they do not, substantial issues

49 For citations to these statutes see footnote 23 supra.

50 4 "Waters and Water Rights" 494 (R. Clark, ed. 1970).

51 Pennsylvania Natural Weather Association v. Blue Ridge Weather Modification

Association. 44 D. & C. 2d 749, 760 (1968).

52 For a discussion of these two theories of defense see 4 "Waters and Water Rights"

497-498 (R. Clark, ed. 1970).

458

may arise; for instance, does cloud seeding in one State take water

directly deal with the issues raised by the interstate nature of weather

modification although Pennsylvania ex Tel. Township of Ayr v. Fulk,

No. 53 (Court of Common Pleas, Fulton County, Pa., Feb. 28, 1968),

did touch upon some of these issues. In that case a weather modifier who

operated a generator in Ayr Township to suppress hail in West Vir-

ginia and Maryland was convicted of violating an ordinance which

made cloud seeding an olfense. The weather modifier alleged that the

township ordinance was unconstitutional because it imposed an undue

burden on interstate commerce but the court did not agree and stated

that the ordinance was never intended to regulate commerce and that

weather modification may not even be commerce. 53

More recently, a dispute has arisen between Idaho and Washington

concerning cloud seeding in Washington which allegedly takes water

from clouds which would normally discharge their water over Idaho.

Some Idaho officials have termed the cloud seeding "cloud rustling"

and threatened to file suit. 54 No suits on this controversy have yet been

filed, however.

Although no court resolution of the interstate problems involved in

weather modification has been found, some States have attempted to

resolve the problem by the use of legislation or interstate compacts.

Twelve States have been found which have legislation discussing the

interstate aspects of weather modification. Eight of these have statutes

which authorize the board or commission which is responsible for

weather modification to represent the State concerning interstate

compacts or agreements on weather modification. 53 Two States, Colo-

rado and New Mexico, have statutes which provide that weather modi-

fication for the benefit of other States cannot be carried on in the State

with this legislation unless the State which could be benefited also

allows weather modification to benefit the State with this legislation. 56

Pennsylvania and West Virginia have statutes which provide that

their weather modification law does not authorize a person to carry out

a cloud seeding operation from these States for the benefit of another

State which forbids weather modification. 57 Utah has a statute which

prohibits cloud seeding in Utah for an adjoining target State except

upon full compliance with the laws of the target State and the law of

Utah. 58

Another method of overcoming the problems presented by the inter-

state nature of weather modification would be to arrive at informal

agreements with adjoining States. Several States provide that the

board which is responsible for weather modifications has the power to

enter into these agreements. However, organizations resulting from

these agreements would possess little power to make binding decisions. 5 *

63 For a more detailed discussion and criticism of this case see R. Davis. "Weather

Modification Litigation and Statutes," in "Weather and Climate Modification" 782-783 (ed.

W. Hess 1974).

64 B. Richards, "Rainmaking Effort Triggers Battle Over Cloud Rustling," the Washington

Post. A-5 Mar. 1. 1977.

55 Conn. Gen. Stat. Ann. sec. 24-7: 111. Stat. Ann. ch. 146 3/4, sec. 9; Kan. Stat. sec.

82a-1405(f) ; New Rev. Stat. sec. 544.080(7) ; N. Mex. Stat. Ann. sec. 2-07-02.5: Okla,

Stat. Ann. sec. 1403(7) ; Tex. Water Code Ann. title 2 sec. 14.018; Wash. Rev. Code sec'

43.37.640.

MColo. Rev. Stat. sec. 36-20-118, N. Mex. Stat. Ann. sec. 75-37-12.

w Pa. Stat. Ann. title 3 sec. 1115 ; W. Va. Code sec. 29-2B-14.

m ri ; .<> Code Ann. tec. 73-15-8.

59 R. Davis, "State Regulation of Weather Modification," 12 Arizona L. Rev. 35, 67 (1970).

459

I method which could also be used would be that of an interstate

>tate shall, without the Consent of Congress, * * * enter into any

Agreement or Compact with another State. * * *" With the exception

if the limitation that the consent of Congress must be obtained, the

Constitution confirmed the right of the States to make compacts with

ach other. It has been stated that an interstate compact has the same

ffect as a treaty between sovereign powers. 60

No interstate compacts specifically concerning weather modifica-

ion were found; however, some existing compacts, especially those

vhich allocate waters of interstate streams, may be applicable to

veather modification. For example, if a compact provides that half of

he waters in a river are to go to one State and half to another, the

veather modifier may have no rights in the water he has allegedly

xroduced since it would go into the river and be subject to the provi-

ions of the compact. 61 It could also be argued that an agency like the

^ew York Port Authority has the authority to engage certain weather

iiodification techniques such as fog dissipation. 62 Certain Supreme

^ourt decisions concerning the use of interstate waters may also

>e helpful in allocating water in clouds which pass over State

)oundaries. 63

METHODS OF CONTROLLING WEATHER MODIFICATION

There are several methods by which weather modification is or could

>e controlled. These include State or local regulation, regulation by

)rofessional associations and Federal regulation. Twenty-eight States

\rere found which have some type of statute pertaining to weather

nodification. These statutes differ greatly in their content. Hawaii, for

xample, simply states that the board of land and natural resources

hall have the power "To investigate and make surveys of water re-

ources, including the possibility and feasibility of inducing rain by

rtificial or other means . . On the other hand, some States, such as

Colorado, have comprehensive laws which include such provisions as

declaration of general policy, licensing, operations affecting weather

n other States, legal recourse, and judicial review. 64 The basis for the

nactment of this type of legislation is the police power. The police

ower enables a State to take action to protect and promote the health,

ifety, morals and general welfare of its people 65

Some State statutes provide for control of weather modification by

Iministrative agencies. In these cases the legislature would most

kely provide some guidance for the agency and then let the agency

rovide for more specific situations by promulgating regulations. 66 It

60 For a more detailed discussion of the legal effect of interstate compacts see Con-

cessional Research Service, The Constitution of the United States of America — Analysis

id Interpretation 419-423 (1973).

61 For a discussion of some of these compacts see note, "Weather Modification and the

tght of Capture," 8 Natural Res. Lawyer 639. 652-654 (1976).

02 R. Davis. "State Regulation of Weather Modification." 12 Arizona L. Rev. 35. 67 (1970).

63 See note. "Weather Modification and the Right of Capture," 8 Natural Res. Lawyer 639,

4-65o (1976).

w Copies of the weather modification statutes and a chart can be found in appendix D.

* Shapiro and Tresolini, "American Constitutional Law" 116-117 (New York 1975).

ee rp he leather Modification Law Project Staff, University of Arizona. School of Law.

'he Legal Implications of Atmospheric Water Resources Development and Management"

-88 (196S).

460

trative agency would have certain advantages including administra-

tive expertise, continuity of the administrative regulatory program,

and flexibility and completeness of control. 67

State statutes would also be subject to judicial review. Although

there have been very few cases discussing weather modification, the

number of these cases has risen in recent years and there are indica-

tions that there will be even more litigation in the future. Such law-

suits, which determine the sx^ecific legal rights of individual plain-

tiffs and defendants, will provide precedents which will be helpful not

only in future cases but also in advising individuals who have not

become involved in a lawsuit what the law has been so that they may

act with some knowledge of the possible consequences. 68 However,

it has been stated that judicial control alone would be incomplete and

would not have the continuity or expertise of an administrative

agency. 69

A State may also attempt to control weather modification by be-

coming the proprietor of weather modification activities. Using this

method the State could use either government employees or hire

contractors to modify the weather. It has been stated that State reg-

ulation of weather modification by this contract method would have

several advantages : It would be comparatively easy to administer, it

would provide a source of funds, and it would provide a method for

enforcing payment to weather modifiers by those who receive the bene-

fit of their services. 70

State regulation of weather modification in general has also been

seen to have certain advantages and disadvantages. It has been ob-

served that the advantages would include the following: First, State

statutes provide a testing ground to experiment and see what scheme

of regulation is the most successful ; second, some States have no need

for regulation of weather modification since no weather modification

occurs in these States ; and third, State agencies would be closer to the

persons regulated and those affected by weather modification than a

Federal agency. Disadvantages have also been observed in State reg-

ulation; for example, the fact that clouds are no respecters of State

boundary lines. In addition, it has been argued that State legislatures

may be susceptible to local lobbying. 71

Professional associations of weather modifiers could also attempt

to regulate their members. Although this would have the advantage

of having knowledgeable persons doing the regulating and could cover

interstate situations, it would also have disadvantages. For example,

such regulators might be reluctant to impose restrictions which might

harm their business. In addition, not all weather modifiers would neces-

saril} T be members of such professional associations and their powers

of enforcement of regulations would be exceedingly limited.