Science, and transportation united states senate

and Regulations respectinir the Territory or other Property belonging

to the United States * * *" This power has been interpreted broadly

and State legislation has been held not to interfere with the power of

t2 Pot n mnrp rlotnilorl discussion of the fiscal power see K. Dam, "The American Fiscal

Constitution." 44 TJ. Chi. L. Rov. 271 H077).

■ Sr«. Lichter v. United States, 334 U.S. 742 (1048).

467

of the Supreme Court concerning the property power of Congress was

in Kleppe v. New Mexico, 426 U.S. 529 (1976) . In Kleppe the Supreme

Court held that the Wild Free-roaming Horses and Burros Act was

a constitutional exercise of congressional power under the property

clause. In arriving at this holding the Court stated :

* * * the Clause, in broad terms, gives Congress the power to determine what

are "needful" rules "respecting" the public lands * * * And while the furthest

reaches of the power granted by the Property Clause have not yet been defini-

tively resolved, we have repeatedly observed that "(t)he power over the public

land thus entrusted to Congress is without limitations" * * * The decided cases

have supported this expansive reading. It is the Property Clause, for instance,

that provides the basis for governing the Territories of the United States. And

even over public land within the States, "(t)lie general Government doubtless

has a power over its own property analogous to the police power of the several

States, and the extent to which it may go in the exercise of such power is meas-

ured by the exigencies of the particular case." [Citations omitted.] At 539-540.

The property clause could be used to regulate weather modification

over public lands. As one commentator has stated :

Superficially the power over property might not seem the most promising source

of power to regulate weather modification. In the western states, though, such

a high percentage of the land area is owned or controlled by the federal govern-

ment that regulation of weather modification over or affecting them would, in

many cases, effectively control weather modification in many of the areas where

such activities are apt to be conducted. 85

Treaty power

Article II, section 2. clause 2 of the Constitution provides that the

President "* * * shall have Power, by and with the consent of the Sen-

ate, to make Treaties, * * * ?? Congress is often able to enact legislation

supplementing treaties which it may not have the power to reach other-

wise. As one commentator has stated :

In a word, the treaty-power cannot purport to amend the Constitution by add-

ing to the list of Congress' enumerated powers, but having acted, the consequence

will often be that it has provided Congress with an opportunity to enact measures

which independently of a treaty Congress could not pass ; the only question

fcnat can be raised as to such measures will be whether they are "necessary and

proper" measures for the carrying of the treaty in question into operation. 86

It is possible, then, that if a treaty concerning weather modification

were made, Congress could regulate weather modification activities by

enacting legislation supplementing the treaty.

Conclusion

The commerce clause as it has been interpreted by the Supreme

Court would provide sufficient authority for Congress to enact legisla-

tion regulating weather modification activities. Although the Supreme

Court did place certain limitations on the commerce clause in National

League of Cities, it is unlikely that this case would so limit the reach

of the commerce power as to effect weather modification regulation. As

one commentator has noted "* * * the potential of the case may be

84 See Congressional Research Service. "The Constitution of the United States of

America — Analysis and Interpretation" 848 (Washington 1973). See also Kleppe v. New

Mexico, 426 U.S. 529. 546 (1976).

85 R. Davis. "The Legal Implications of Atmospheric Water Resources Development and

Management," 102 (Report to the Bureau of Reclamation, October 1968).

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

Analysis and Interpretation" 848 (Washington 1973).

468

tion might also be found in other powers of Congress including the

fiscal power, war power, property power, and treaty power. However,

the use of these powers may not provide as far-reaching authority as

is given under the commerce clause. For example, under the property

power, Congress would be limited to regulation of weather modifica-

tion activities on public lands. Some commentators have also argued

that the National League of Cities decision may serve to limit other

congressional powers, such as the fiscal power, hi addition to limiting

the commerce power. 66 It is unlikely that even if the National League

of Cities holding were extended to other sources of congressional

power that it would affect weather modification regulation.

International*

The major focus on the potential legal problems associated with

weatlier modification activities in the United States has been on the

domestic repercussions. However, there is increasing attention and

interest in international involvement and implications.^ The National

Weather xUodification Policy Act of 1976 lJ ° contains a congressional

finding that: "Weather modification programs may have long-range

and unexpected effects on existing climatic patterns which are not con-

fined by national boundaries.*'" Iwo of the stated purposes of the act

are: "(6) to develop both national and international mechanisms de-

signed to mhiiniize conflicts which may arise with respect to peaceful

uses of weather modification; and (7) to integrate the results of exist-

ing experience and studies in weather modification activities into

model codes and agreements for regulation of domestic and interna-

tional weather modification activities." The Secretary of Commerce

is directed to conduct a study which is to include, among other things,

" (10) a review and analysis of the necessity and feasibility of negotiat-

ing an international agreement concerning the peaceful uses of

weather modification; and (11) formulation of one or more options

for a model international agreement concerning the peaceful uses of

weather modification activities ; and a review and analysis of the neces-

sity and feasibility of negotiating such an agreement." Thus, because

the atmospheric processes producing weather operate independently of

national boundaries, weather modification is inherently an interna-

tional problem. 91

Any international concern about weather modification should in-

clude attention to the international legal issues :

Serious international questions have arisen in conjunction with the capability

to modify the weather. For example, do countries have the right to take uni-

lateral action in all weather modification activities? What liability might a

country incur for its weather modification operations which destroy life and

property in a foreign State? On what theory could aud should that State base its

*Daniel Uill Zafren, Assistant Chief, American Law Division, Congressional Research

Sprvice.

87 Id. at S. 10 (Washington 1976).

88 See note, "The Re-Einergence of State Sovereignty as a Limit on Congressional Power

Under the Commerce Clause, ' 2S Case Western Reserve L. Rev, 106, 19S-199 U977).

w See ch. 10.

80 15 U.S.C. | 330 note. Public Law 94-490, 90 Stat. 2359.

" Note. -Weather Modihcation : A Modest Proposal,' 4 Ga. J. of Infl & Comp. L. 159,

104 (1974).

469

in time may lead to potentially major international controversy. 92

Actually, some of the international legal issues are similar to those

in the domestic realm which pertain to interstate activities or dam-

ages. Because of national sovereignty over airspace, nations are likely

to assert rights of control over clouds and other weather phenomena in

their national airspace. On the one hand, this involves the right to

"use" the weather over their territory. On the other hand, it also raises

a claim to "receive" weather due to arrive from another country. 93

The domestic law concerning weather modification has been de-

scribed herein as being "unsettled." International law governing this

subject is barely in the formative stage. It is not even clear at this

point whether there will be a separate particular body of international

law on or pertaining to weather modification, or whether international

rules and regulations governing weather modification will merely

become part of a larger and more general growing area of interna-

tional law, namely international environmental law.

As an example of an international approach dealing directly with

weather modification as a separate consideration, on March 26, 1975,

the United States and Canada entered into an agreement relating to

the exchange of information on weather modification activities 94

which recognizes "the desirability of the development of international

law relating to weather modification activities that have transbound-

ary effects." This bilateral agreement, however, is limited to unilateral

reporting and consultation. The right to act unilaterally is preserved,

and article VII even states :

Nothing herein relates to or shall be construed to affect the question of re-

sponsibility or liability for weather modification activities, or to imply the exist-

ence of any generally applicable rule of international law.

As an example of an international approach which deals with

weather modification in the broader concept of environment, on May

18. 1977, the United States signed the Convention on the Prohibition

of Military or Any Other Hostile Use of Environmental Modification

Techniques, 95 which will enter into force after ratified by 20 signatory

nations, in which each State party "undertakes not to engage in mili-

tary or any other hostile use of environmental modification techniques

having widespread, long-lasting, or severe effects as the means of de-

struction, damage or injury to any other State party."

The primary practical international legal problem is probably that

of liability for transnational injury or damage. Such a situation could

conceivably arise involving the United States either directly or in-

directly in a number of general fact situations :

1. Injury or damage in another nation caused by weather modi-

fication^ activities executed within the United States;

2. Injury or damage in another nation caused by weather modi-

fication activities executed in that nation or a third nation by the

United States or a citizen of the United States ;

P2 Comment. "Wentbpr Gpnesis and Wpnther Neutralization : A New Approach to Weather

Modification." 6 Olif. W. Tnt'l L.J. 412. 414 (1976).

93 Taubenfeld. "Wentbpr Modification and Control: Some International Implications," 55

Calif. L. Bev. 493. 497 n 967) .

p < TTAS 90r>« OR TTST 540.

P5 16 Int'l Materials S8 (1977). It has been submitted by the President to the Senate

for approval. See Exec. K, 95th Cong., 2d sess.

470

,3. Injury or damage in another nation caused by weather modi-

tion of any nation (e.g., over the high seas), by the United States

or a citizen thereof ; and

4. Injury or damage to an alien or an alien's property within the

United States caused by weather modification activities executed

within the United States.

Different and highly complex legal considerations might be present

with any one (or combination) of such variable factors as:

1. The purpose and motivation of the weather modification activity :

(a) Was it performed for peaceful or hostile purposes?

(b) Was it originated for some public interest or a private

interest ?

2. The authority and character of the weather modifier:

(a) Is the weather modifier a Federal or State governmental

agency, a private party under contract from the Federal or a

State government, or a private party engaged in a private

pursuit ?

(b) Has the modifier complied with all necessary prerequisites

surrounding that particular activity (e.g., license, notification,

and environmental impact statement ) ?

(c) Has the other nation consented to or requested the weather

modification ?

(d) Has the weather modifier acted pursuant to the authority

granted and in a competent and acceptable manner ?

3. The forum chosen for commencement of any legal action, and the

defendant(s) chosen:

(a) Does the plaintiff have standing to bring such a suit ?

(b) Does the forum recognize a cause of action upon which the

suit might be brought ?

(e) Is proper jurisdiction obtained over the defendant (s) ?

(d) If suit is brought against a governmental entity, is a de-

fense of sovereign immunity available?

(e) If suit is brought in a foreign nation and judgment ob-

tained, can or would it be recognized and enforceable in the

United States?

(/) What are the conflicts of law decisions of the forum ?

4. The type and extent of injury or damage sustained :

(a) Can it be proven that the weather modification activity

caused the injury or damage complained of ?

(b) Is the injury or damage slight compared with any benefits

resulting from the activity?

(c) Can any of the injury or damage have been avoided or

foreseen, by either party?

(d) What legal analogies can be drawn ?

This listing is not exhaustive, but it is readily apparent that legal

considerations can vary drastically depending on the facts and circum-

stances surrounding any particular incident and questions pertaining

to legal liability therefor. Following is a brief description of some of

the international law principles that might arise, both public and

private, in any given situation.

471

CERTAIN HOSTILE USES OF WEATHER MODIFICATION ARE PROHIBITED

tion techniques contained in the Convention on the Prohibition of Mili-

tary or Any Other Hostile Use of Environmental Modification Tech-

niques as to the military or other hostile use of environmental modifi-

cation techniques having widespread, long-lasting or severe effects in

another nation which is a party to that Convention, other sources of in-

ternational law can be pointed to as declaring similar principles. For

example, the International Committee of the Red Cross Protocol II

after the Second Diplomatic Conference of the Reaffirmation and De-

velopment of International Humanitarian Law Applicable in Armed

Conflicts, protects the natural environment from combat methods that

cause widespread, long-term and severe damage. Article 28 states : "It

is forbidden to employ methods or means of combat which are intended

or may be expected to cause widespread, long-term and severe damage

to the natural environment." 96 Extreme forms of weather modifica-

tion, if used as a weapon, could arguably also be in contravention of the

"laws of war" as being in contravention of the principles of military

necessity, humanity, proportionality, and discrimination.

NATIONS ARE RESPONSIBLE FOR ENVIRONMENTAL CONDUCT WHICH CAUSES

INJURY OR DAMAGE IN OR TO OTHER NATIONS

On the issue of liability, a continuous flow of international decisions,

conventions, and practices indicates acceptance of a standard of strict

liability among states for damage caused by or deprivations resulting

from manipulation of environmental variables. This standard has been

developed by extension of three well-known cases : The Trail Smelter

arbitration, in which an international tribunal found Canada liable for

fumes emanating from a smelter located in British Columbia and do-

ing damage in the State of Washington ; the Corfu, Channel case, in

which the International Court of Justice held Albania responsible

under international law for damage to British ships from mine explo-

sions in Albanian territorial waters ; and the Lac Lannoux arbitration,

where it was said that France would be strictly liable if, due to its hy-

droelectric utilization of a French lake, damage resulted to waters

draining into Spain. Strict liability among states has similarly found

expression in several multilateral conventions. Such liability has usu-

ally been enforced in the first instance by and against states, leaving

to national legal systems its assertion directly against private parties. 97

The Trail Smelter case contains the following often-quoted

language :

Under principles of international law, as well as of the law of the United States,

no State has the right to use or permit the use of its territory in such a manner

as to cause injury by fumes in or to the territory of another or the properties or

persons therein, when the case is of serious consequence and the injury is estab-

lished by clear and convincing evidence." 99

98 Cantrell, "Civilian Protection in Internal Armed Conflicts : The Second Diplomatic

Conference." 11 Texas Int'l L.J. 305. 308. 326-327 (1976).

97 Note. "New Perspectives on International Environmental Law." 82 Yale L..T. 1059.

1665-1666 (1073). The Trail Smelter case (United States v. Canada), 3 TT.N.R.I.A. A. 1038

(1041). 35 Am. J. Int'l L. 684 (1041). The Corfu Channel case. T10401 I.C.J.4. The Lake

Lannoux case. 12 U.N.R.I.A.A. 281 (1057), 52 Am. J. Int'l L. 156 (1050).

9S It should be noted, however, that there is commentary to the effect that the implica-

tions of this case are not as they seem to be. See. Nanda, "The Establishment of Interna-

tional Standards for Transnational Injury," 60 Iowa L. Rev. 1080, 1007 (1075).

472

paid by the United States for the Japanese fishermen subject to exces-

sive radiation in the 1954 hydrogen bomb tests in the Marshall Island

Trust Territories, the exchange of notes between Japan and the United

States involving the 1958 U.S. Pacific nuclear tests, and the exchange

of notes between Mexico and the United States involving pollution of

Ciudad Juarez, Chihuahua, Mexico, have been pointed to as effectively

extending the doctrine of state responsibility set forth in the Trail

Smelter case." One recent commentator describes this as an unformu-

lated principle in international law that is called the "principle of

neighborship." "It is clear, once we formulate it, that the principle does

impose limitations on a state's right to adversely affect the territorial

sovereignty of its neighbors by acts carried out in its own territory. 1

NATIONS ARE LIABLE FOR INJURIES SUSTAINED BY ALIENS WITHIN THEIR

TERRITORY CAUSED BY TORTIOUS CONDUCT IN VIOLATION OF INTERNA-

TIONAL LAW

"A state is responsible under international law for injury to an

alien caused by conduct subject to its jurisdiction, that is attributable

to the state and wrongful under international law." 2 If the conduct

is not wrongful under international law, the alien would in most in-

stances have the same remedies and recourse as those available to citi-

zens of the United States, 3 and be subject to the same defenses. 4

NATIONS OR ITS CITIZENS MAY BE LIABLE FOR INJURY AND DAMAGE THEY

CAUSED TO CITIZENS OF ANOTHER NATION OCCURRING IN THAT NATION

If the citizen of the foreign nation is injured in that nation by torti-

ous conduct attributable to the United States or one of its citizens, the

injured party would have the option of bringing a cause of action

within that country if jurisdiction can be obtained and such a suit is

permitted there, or by bringing suit within the United States in an ap-

propriate forum. Private litigation between citizens of two different

nations can produce a host of legal issues. For example, a conflicts of

law problem would arise in that the tribunal called upon to determine

the matter would have to choose which nation's laws (or political sub-

division thereof ) would apply to the situation. 5 If the litigation in-

volved a citizen of another nation and the United States, local law

w Nanda, "The Establishment of International Standards for Transnational Injury," 60

Iowa L. Rev. 10S9. 1098-1100 (1975).

1 Elkind, "Footnote to the Nuclear Test Cases : Abuse of Right — A Blind Alley for En-

vironmentalists," 9 Vand. J. Transnational L. 57 (1976). This same commentator criticizes

the International Court of Justice for sidestepping the necessity of deciding whether nu-

clear resting which causes fallout on neighboring territory is lawful in the 1975 nuclear

test cases (Australia v. France, New Zealand v. France).

2 Restatement (second) of the Law "Foreign Relations Law of the United States," sec.

164<1 t (19.-1).

»42 T\S.C. sec. 1981 (1970 ed.) grants all persons within the jurisdiction of the United

States the right to sue. Treaties of friendship, commerce and navigation, usually also grant

such a ripht. For example, see the Treatv of Friendship, Commerce and Navigation Between

the United states and Japan (1953), 4 U.S.T. 2083.

4 If a United States citizen would be foreclosed from pursuing a claim for damages be-

cause of the defense of sovereign immunity, as an example, an alien would likewise be

bn rred.

« See, e.g., S. C. McCaffrey, "Pollution Suits Between Citizens of the Republic of Mexico

ami the United States : A Study in Private International Law" (1976), at 34-35, 106.

473

erns the relations of sovereign states. Therefore, private parties have

no standing to espouse a claim in the international system. Usually,