Science, and transportation united states senate

67 R. Davis, "State Regulation of Weather Modification." 12 Arizona L. Rev. 35, 55 (1970).

ftS For discussions of judicial control of weather modification see R. Davis, "Strategic

for State Regulation of Weather Modification," in "Controlling the Weather" 182-194 (ed.

II. Taubenfeld 1970) ; The Weather Modification Law Project Staff, University of Arizona,

School of Law, "The Legal Implications of Atmospheric Water Resources Development and

Management" S5-86 (196S).

■ R. Davis. "State Regulation of Weather Modification," 12 Arizona L. Rev. 35, 56 (1970).

70 Id. 60-61.

n Id. 64-65.

461

COXGRESSIOXAL AUTHORITY UNDER THE CONSTITUTION TO REGULATE OR

Weather modification could also be controlled by Federal statute.

However, in order to enact valid legislation, Congress must find a grant

of power in the Constitution which would allow such legislation. There

are several grants of power to Congress which would be sufficient au-

thority for the regulation of weather modification activities. The most

important of these is the power given to Congress under the commerce

clause which states that "The Congress shall have Power To . . . reg-

ulate Commerce with foreign Nations, and among the several States,

and with the Indian Tribes." 72 Authority for such regulation may to

some extent also be found under the sections granting Congress fiscal

power, war power, property power and treaty power. The major em-

phasis of this section will be on the commerce clause: however, the

other powers will be discussed briefly. Prior to a discussion of the com-

merce power, it would be helpful to briefly discuss the principle of

federalism.

Federalism

Federalism is one of the basic concepts underlying the U.S.

Constitution. It has been defined as "* * * a principle of government

Which provides for the division of powers between a national govern-

ment and a collection of State governments operating over the same

geographic area." 73 The Federal Government possesses all those pow-

ers which are delegated to it either expressly or by implication by

the Constitution. As is explicitly stated in the 10th amendment, the

State governments possess those powers which are not given to the

Federal Government or denied to the States. Recent Supreme Court

cases, in particular National League of Cities v. Usery, 426 U.S. 833

(1976), have been interpreted by some commentators as indicating a

* * resurrection of the Madisonian concept of a restricted Federal

Government resulting in a more active role for the 10th amend-

ment." 74 This recent change in interpretation, if indeed there has been

a significant change, has occurred mainly as a limitation on congres-

sional use of the commerce clause power and will be discussed in more

detail in the discussion of the commerce clause.

The commerce clause

The commerce clause has generally been interpreted broadly by the

Supreme Court and has been described as "* * * the direct source of

the most important powers which the Federal Government exercises in

peacetime, and except for the due process and equal protection clauses

of the 14th amendment, it is the most important limitation imposed by

the Constitution on the exercise of State power." 75 The use of the

commerce clause as a source of Federal power is the most relevant to

the discussion here ; however, it should be noted that the only case

found which discussed the commerce clause and weather modification

7 - O S. Constitution art. I. sec. 8. cl. 3.

'■■ Chase and Ducat. "Constitutional Interpretation" 375 (St. Paul 1974).

» Note. "Constitutional Law — Tenth Amendment as an Affirmative Limitation on Com-

merce Power. National League of Cities v. Usery, 426 U.S. S33 (1976)," 8 Toledo L. Rev.

796. R09 (1977).

" Congressional Research Service. "The Constitution of the United States of America —

Analysis and Interpretation" 142 (Washington 1973).

34-8o7 — 79 32

462

was one in which the commerce clause was discussed as a limitation on

of Ayr v. Fulk, No. 53 (Court of Common Pleas, Fulton County, Pa.,

Feb. 28, 1968), arose when a weather modifier who operated a gener-

ator in Ayr Township to suppress hail in West Virginia and Maryland

was convicted of violating an ordinance which made cloud seeding an

offense. The weather modifier alleged that the township ordinance was

unconstitutional because it imposed an undue burden on interstate com-

merce 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. This case has been strongly criticized as

ignoring the numerous Supreme Court cases which have interpreted

the term "commerce" very broadly and it is of questionable use as per-

suasive authority. 76

The commerce clause generally. — The commerce clause was first dis-

cussed in Gibbons v. Ogden, 9 Wheat. (22 U.S.) 1 (1824). This land-

mark case ai'ose when a monopoly granted by New York State on the

operation of certain vessels in its Avaters was challenged by Gibbons

who transported passengers pursuant to an act of Congress. Speaking

for the Court, Chief Justice Marshall stated :

The subject to be regulated is commerce; and our Constitution being, as was

aptly said at the bar, one of enumeration, and not of definition, to ascertain the

extent of the power, it becomes necessary to settle the meaning of the word. The

counsel for the appellee would limit it to traffic, to buying and selling, or the

interchange of commodities, and do not admit that it comprehends navigation.

This would restrict a general term, applicable to many objects, to one of its sig-

nifications. Commerce, undoubtedly, is traffic, but is something more : it is inter-

course. At 189.

Chief Justice Marshall also addressed the question of what is the

power to regulate commerce and stated :

It is the power to regulate; that is, to prescribe the rule by which commerce

is to be governed * * *. The power of Congress, then, comprehends navigation

within the limits of every State in the union; so far as that navigation may be,

in any manner, connected with "commerce with foreign nations, or among, the

several States, or with the Indian tribes." At 190-197.

Although the commerce power was interpreted more narrowly dur-

ing the early 1930's," the expansive interpretation was soon evident

again. Several cases were decided by the Supreme Court in 1942 dis-

cussing the commerce clause. In United States v. Wrighticood Dairy

Co., 315 U.S. 110, 119 (1942), the Supreme Court stated that :

The commerce power is not confined in its exercise to the regulation of com-

merce among the States. It extends to tbose activities intrastate which so affect

interstate commerce, or the exertion of the power of Congress over it. as to

make regulation of them appropriate means to the attainment of a legitimate

end, the effective execution of the granted power to regulate interstate com-

merce * * * the marketing of a local product in competition with that of a like

commodity moving interstate may so interfere with the interstate commerce or

its regulation as to afford a basis for congressional regulation of the intrastate

activity.

78 Spp R. Davis. "Weather Modification Litigation and Statutes'* in "Weather and Climate

Modification" 782-783 fed. W. IIoss 1074).

77 See e.g., Schccter Poultry Corp. \. United States, 295 U.S. 405 (1935).

463

(1942), where the Supreme Court upheld Federal commodity regula-

tions which applied to a farmer who was growing wheat for his own

use. The Court concluded there that even though this particular

amount of wheat was trivial, when combined with that of others in

similar situations, it could be sufficiently competitive with wheat in

interstate commerce to justify its regulation.

More recently, the Court in Perez v. United States, 402 U.S. 146

(1971), upheld title II of the Consumer Credit Protection Act which

prohibited certain extortionate credit transactions. The Court found

that although the transactions in question in this case were purely

intrastate, they could adversely affect interstate commerce and thus

their regulation was a permissible congressional exercise of its powers

under the commerce clause.

As is exemplified by these cases, the power of regulation given to

Congress under the commerce clause may deal with the channels of

commerce, instrumentalities of commerce, activities affecting com-

merce and articles of commerce. Since the devices used in weather

modification would most likely involve commercial marketing, it is

likely that weather modification could be regulated since its instru-

ments would probably be in interstate commerce. In addition, weather

modification activities could by themselves affect commerce. An even

stronger case could be made that weather modification can be reg-

ulated under the commerce clause since it would have an affect on navi-

gable waters.

The commerce clause arid the regulation of navigable waters. — There

is a line of cases stretching from Gibbons v. Ogden concerning con-

gressional authority under the commerce clause to regulate navigable

waters. As was quoted above in Gibbons Chief Justice Marshall stated

that commerce " * * * comprehends navigation within the limits of

every State * * *." The congressional regulation of waterways was

further elaborated in Pennsylvania v. Wheeling & Belmont Bridge

Co., 13 How. (54 U.S.) 518 (1852), and The Daniel Ball, 10 Wall

(77 U.S.) 557 (1871). As a result of this power over navigation, Con-

gress has also acquired the right to develop hydroelectric power 78 and

to legislate in the area of flood control. In United States v. Appala-

chian Electric Potver Co., 311 U.S. 377 (1940), the Supreme Court

discussed " * * * the scope of the Federal commerce power in relation

to conditions in licenses, required by the Federal Power Commission,

for the construction of hydroelectric dams in navigable rivers of the

United States." At 398. 'Discussing the power of the United States

over its waters, the Court stated :

, In our view, it cannot properly be said that the constitutional power of the

United States over its waters is limited to control for navigation. By navigation

respondent means no more than operation of boats and improvement of the water-

way itself. In truth the authority of the United States is the regulation of com-

merce on is waters. Navigability, in the sense just stated, is but a part of this

whole. Flood protection, watershed development, recovery of the cost of improve-

ments through utilization of power are likewise parts of commerce control. As

respondent soundly argues, the United States cannot by calling a project of its

own "a multiple purpose dam" give to itself additional powers, but equally truly

United States v. Chandler-Dunlar Co., 229 U.S. 53 (1913).

464

the respondent cannot, by seeking to use a navigable waterway for power genera-

Since weather modification activities could have an effect upon the

waterfiow of navigable waters, they thereby would be subject of con-

gressional regulation under the commerce power. This is particularly

true in the case of activities such as cloud seeding where the activities

of weather modifiers could potentially cause flooding and may well

affect the watershed.

Limitations on the commerce power. — An argument could be made

that Congress does not have authority under the commerce clause to

regulate weather modification activities. States and localities could

argue that such regulation would be an unconstitutional infringement

of the rights of the States under the 10th amendment. In United States

v. Darby, 312 U.S. 100 > (1941), the Supreme Court characterized the

10th amendment as stating "* * * but a truism that all is retained which

has not been surrendered." At 124. This was interpreted by the Su-

preme Court in Fry v. United States, 421 U.S. 542 (1975) :

While the Tenth Amendment has been characterized as a truism stating merely

that all is retained which has not been surrendered, * * * it is not without sig-

nificance. The Amendment expressly declares the constitutional policy that Con-

gress may not exercise power in a fashion that impairs the States' integrity or

their ability to function effectively in a federal system (citation omitted).

The Supreme Court in National League of Cities v. Usery, 426 U.S.

833 (1976), quoted this language from Fry with approval. National

League of Cities held that Congress may not exercise its power to

regulate interstate commerce so as to force directly upon the States

its choice as to how essential decisions regarding the conduct of inte-

gral governmental functions are to be made. More specifically, the

Court held that the 1974 amendments to the Fair Labor Standards Act

which extended the statutory minimum wage and maximum hours

provisions to employees of States and their subdivisions was unconsti-

tutional in that it exceeded congressional power under the commerce

clause.

Supreme Court is placing limitations on the power of Congress under

the commerce clause and that a more narrow reading of this clause

would make Federal regulation of weather modification questionable.

However, it is unlikely that such an argument would be successful.

The majority opinion in National League of Cities, despite its broad

language, did accommodate most of the previous Supreme Court cases

where broad congressional power to regulate commerce was upheld. In

addition, the Court noted that "* * * there are attributes of sovereign-

ty attaching to every State government which may not be impaired by

Congress * * *" and that "* * * (o)ne undoubted attribute of State

sovereignty is the States' power to determine the wages which shall be

paid to those whom they employ * * *"' At 845. It is unlikely that

weather modification would be considered to be one of these undoubted

attributes of State sovereignty. It should also be noted that four jus-

w See also Douglas v. Seacoast Products, 431 U.S. 26."> (1977) where the Supreme Court

Struck clown a Virginia statute which limited the right of nonresidents to catch fish in

Virginia waters since it conflicted with Federal requirements. The Supreme Court stated:

"While appellant may he correct in arguing that at earlier times in our history, there was

Bome flouht whether Congress had power under the commerce clause to regulate the taking

of fish in State waters, there can be no question today that such power exists where there

is some effect on interstate commerce." At 2S1-282 (footnote omitted).

4.65

tices dissented from the majority opinion in National League of Cities

I may misinterpret the Court's opinion, but it seems to me that it adopts a

balancing approach, and does not outlaw Federal power in areas such as environ-

mental protection, where the Federal interest is demonstrably greater and ^Yhere

State facility compliance with imposed Federal standards would be essential.

At 856.

environmental protection than to minimum wage laws. And although

States have enacted legislation concerning weather modification, the

fact that weather patterns often have national effects would seem to

make the imposition of Federal standards arguably as logical as they

are in the area of environmental protection. 80

Fiscal poioers

Congress is given the power to tax and provide for the general wel-

fare of the United States in article I, section 8, clause 1 of the Consti-

tution. This section specifically states:

The Congress shall have Power to lay and collect Taxes, Duties, Imposts and

Excises, to pay the Debts and provide for the common Defence and general Wel-

fare of the United States * * *

This power to tax has been interpreted broadly and the Supreme

Court has held that the power of Congress to tax to provide for the

common welfare is not limited by the other direct grants of legislative

power found in the Constitution. 81 However, although the power of

Congress was not found to be limited by other direct grants in United

States v. Butler, the Supreme Court also indicated there that the power

to tax for the general welfare was limited by the 10th amendment. The

limitation of the 10th amendment on this power was narrowly inter-

preted in Steward Machine Go. v. Davis, 301 U.S. 548 (1937). In Ste-

ward, the Court upheld the Social Security Act and found that the

relief of unemployment was a legitimate object of Federal expenditure

under the general welfare provision.

Federal grants-in-aid wmich are conditioned upon State compliance

with certain regulations have also been found constitutional. In Okla-

homa v. Civil Service Commission, 330 U.S. 127 (1947), the Supreme

Court found that section 12(a) of the Hatch Act was constitutional

and that it did not violate the 10th amendment by diminishing the

amount of a Federal grant-in-aid for the construction of highways

if the State failed to remove a member of the State highway com-

mission from office. The highway commissioner had been found to

have taken an active part in political campaigns while a member of the

commission. In arriving at this holding, the Supreme Court stated :

While the United States is not concerned and has no power to regulate local

political activities as such of State officials, it does have power to fix the terms

80 Numerous commentators have discussed the implications of National League of Cities.

For examples see. L. Tribe. "Unravelling National League of Cities : The New Federalism

and Affirmative Rights to Essential Government Services." 90 Harv. L. Rev. 1065 (1977) ;

B. Matsumoto. "National League of Cities — From Footnote to Holding — Stnte Immunity

from Commerce Clause Regulation." 1977 Ariz. St. L. J. 35 (1977) ; Note, "Constitutional

Law — 10th Amendment as an Affirmative Limitation on Commerce Power, National League

of Cities v. XJsery, 426 U.S. 833 (1976), 8 Toledo L. Rev. 796 (1977) ; Note, "The Re-

emergence of State Sovereignty as a Limit on Congressional Power Under the Commerce

Clause." 28 Case W. Reserve L. Rev. 166 (1977).

81 United States v. Butler, 297 U.S. 1, 65-66 (1936).

466

Amendment does not forbid the exercise of this power in the way that Congress

has proceeded in this case * * * The end sought by Congress through the Hatch

Act is better public service by requiring those who administer funds for national

needs to abstain from active political partisanship. So even though the action

taken by Congress does have effect upon certain activities within the State, it has

never been thought that such effect made the Federal act invalid. * * * We do not

see any violation of the State's sovereignty in the hearing or order. Oklahoma

adopted the "simple expedient" of not yielding to what she urges is Federal

coercion * * * The offer of benefits to a State by the United States dependent

upon cooperation by the State with Federal plans, assumedly for the general

welfare, is not unusual. [Citations omitted.] At 143-144.

Given this precedent, it is likely that Congress would be able to con-

dition grants for weather modification activities on the following of

certain regulations without raising constitutional problems. 82

"War potoers

The U.S. Constitution article I, section 8, clause 1 provides in rele-

vant part that "The Congress shall have the Power To * * * provide

for the common defence * * *" In addition clause 11 provides that

Congress shall have the power to declare war. These specific grants of

power have been used by the Supreme Court to uphold certain con-

gressional acts. 83 The Supreme Court has also found that there was an

inherent power to make war. In United States v. Curtiss-W right Corp.,

299 U.S. 304 (1936) , the Supreme Court stated :

• * * that the investment of the Federal Government with the powers of ex-

ternal sovereignty did not depend upon the affirmative grants of the Constitution.

The power to declare and wage war, to conclude peace, to make treaties, to main-

tain diplomatic relations with other sovereignties, if they had never been men-

tioned in the Constitution, would have vested in the Federal Government as neces-

sary concomitants of nationality. At 318.

It is likely that the war power could be used to find congressional

power to regulate weather modification since weather modification has

potential military use. Also, Congress has used the war power as a basis

for the regulation of atomic energy and electricitv. For example, in

Pauling v. McElroy, 164 F. Supp. 390 (D.D.C. 1958), aff'd 278 F. 2d

252 (I960), cert, denied, 364 U.S. 835 (1960), the district court found

that the Atomic Energy Act was constitutional and stated: "The Act

is a valid exercise of the authority of Congress to promote and protect

the national defense and safety under the constitutional war power."

At 393. And in Ashwander v. Tennessee Y alley Authority, 297 U.S. 288

(1935), the Supreme Court upheld the construction of Wilson Dam as

a valid exercise "* * * by the Congress of its war and commerce

powers, that is. for the purposes of national defense and the improve-

ment of navigation.'' At 326.

Property power

Article TV. section 3, clause 2 of the Constitution provides that "The

Congress shall have Power to dispose of and make all needful Rules