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MODIFICATION LAW AS A PROTOTYPE FOR LEGAL CONTROL OF INADVERTENT WEATHER AND CP~NGE*

Ray Jay Davis J. Reuben Clark Law School Brigham Young University Prove, Utah 84602

Abstract. is a prototype for meeting legal challenges from unintended weather change due to the urban heat island effect and from world-wide warming produced by the . Four issues for which seeding law supplies legal models for unintended atmospheric change are: (I) liability law, (2) funding law, (3) regulating human activities that are precursors to atmospheric changes, and (4) tailoring the scale legal intervention to the scale of societal impacts. i. INTRODUCTION harmed by some atmospheric event, it is net necessarily true that they are persons whose A prototype is an original or model on losses indeed were the consequence of the cloud which something is based or formed, something seeding. Natural events could have bee~ that serves to illustrate the typical qualities responsible by themselves, or to some u~known of a class. Weather modification law is such a degree, in conjnnction with intended ~e~ther model for consideration by those persons, modification activities. The causation issue agencies, or groups deliberating about what legal renders the question of who are the proper norms should be applied to unintended weather plaintiffs, one of identification of indeterminate modification through urbanization and to climatic parties (Davis & St.-Amand, 1975). change through emissions. During the nearly half century history of , Two weather modification cases e~em~lify legal rules, principles, and standards have been the difficulty. In Adams v. California, the developed to govern seeding activities (Davis, claimants asserted that operation of seeding 1987). The legal lessons from weather generators by a meteorological services company modification that can be considered for caused the flooding from which their losses application to other anthropogenic atmospheric followed. But the plaintiffs did not establish changes include liability law (the problem of the connection between any rnnoff attr£~uta~le to indeterminate parties), funding law (raising and the seeding and the flood (Mann, 1968). And spending government money for research and Lunsford v. , there was no showing operations), regulatory law (imposing regulations that the salt treatment of a monster stern made on activities), and determining which levels of any difference in the volume of the s~bsequent government should impose such regulations. Each flood (St.-Amand, Davis & Elliott, 1973). Also issue will be addressed in turn to illustrate the the defendants had a difficulty attempting to extent to which cloud seeding law is a model for join in a single class action the claims on these more recent atmospheric change concerns. behalf of all victims of the flood. If the claimants had proceeded, each person suffering a 2. LIABILITY loss would have needed to sue individ~all~, a procedure much more costly than joinder of all In order to assess legal liability, a court the plaintiffs in a single suit (Davis, 1988). must answer the question: Who did what to whom? The effects of intended weather modification are The claimant must persuade the judge that the like the ripples from a stone cast into a pond. defendant caused her or him harm. That is easy It is quite difficult to establish the place when a miscreant has punched the victim in the where they stop, the point at which consequences nose. It is infinitely more complicated in no longer can be identified. Unintended environmental harm cases. Who were the atmospheric changes share that problem. responsible parties? Who were harmed? Was there adequate proof of the causal connection between When climate or weather warms, diverse the conduct of the defendant or defendants and causes are involved. Nature plays a role, as the consequences for which the plaintiff or various anthropogenic inputs. In such cases, not plaintiffs seek redress? The problem is only are there indeterminate plaintiffs, but the indeterminate parties. Many antecedents preceded defendants as well are not usually identifiable. the loss. Who properly are the defendants? Many The exceeding difficulty of quantifying inputs p~rsons have been harmed, but were their losses into urban weather alterations from the wide consequences of conduct of the defendants? Who variety of sources potentiall7 acting as causal properly are the defendants? (Keeton et al., agents makes suit against any ore defendant or 1984). even groups of identified defendants responsible for an input almost impossible (Davis, ]990). In liability litigation over harm claimed The same is true of seeking damages from to have been caused by cloud seeding, the emitting trace gases that are precursors to defendants are identifiable--the seeder and the planetary warming. project sponsor. But the plaintiffs are not. Although it is possible that those persons who The legal fallout from cloud seeding is a have come forward seeking compensation have been gloomy message for would be plaintiffs.

* An earlier version of this paper was presented at the American Meteogological Society Weather Modification Workshop at Atlanta, GA on January 9, 1992.

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teaches the futility of liability action. People authorization by statute of a program. The who believe they have been harmed or may be hurt largely unsuccessful struggle for a clearly by the urban weather change or global warming defined federal weather modification program was should know from what has happened with cloud an effort to give stability to federal spending seeding cases that their efforts to do something for weather modification research and development about their perceived losses should not be (Weather Modification Advisory Board, 1978). directed toward litigation. The prototype There have been no similar concerted efforts to teaches the lesson: look elsewhere for relief get funding for an ongoing program to study because in these instances the courts cannot inadvertent weather modification and do something help. about it. But there have been legislative efforts to deal with . Congress 3. FUNDING established the National Climate Program to assist the nation and the World "to understand A lesson learned from intended weather and respond to natural and man-induced climate modification practice is that passing the hat processes and their implications." (U.S. Code seeking voluntary contributions for money needed Title 15 § 2902). In 1990 it enacted the Global to operate seeding projects is not an effective Change Research Act aimed at planning for and method for long-term funding of cloud seeding promoting scientific research and development of costs. The first year of a project there is technologies useful for reducing energy enthusiasm among backers that will carry the day. consumption, promoting sources, During the second year there is reluctance among developing replacements for ozone depleting many individuals who have difficulty perceiving substances, and promoting recycling and forest that they benefitted in any way from the seeding. conservation. (U.S. Code Title 15 § 2931). The third year the disinclined will not pay, and While efforts to procure a legislative without their contribution the project collapses- authorization basis for a national weather -the third year syndrome (Davis, 1968). modification program have failed (Changnon Lambright, 1987), those to authorize a program to Commercial cloud seeders have sought to study global climatic change have been modestly deal with the problem of intermittent private successful (Corell, 1991). group funding by getting financial backing from interest groups--the ski industry, irrigation The second step in spending government districts, hydropower generation corporations-- money is to obtain an appropriation of the and from government entities (Keyes, 1983). required funds. This is most difficult unless Public funding of weather modification activities the expenditure is included in the formal involves passing laws. The cloud seeding executive budget (Lehan, 1981). "Write-ins" prototype for those who would deal with usually do not fare too well. The federal-state unintended weather and climate change encompasses cooperative weather modification research program a very practical concept: induce lawmakers to operated by the National Oceanic and Atmospheric enact legislation supporting government funding. Administration (NOAA) and several states (Webster, 1980) is a lonely exception to the rule To spend money~ governments must raise it. that a program is quite short lived unless it That usually means there must be tax laws. gets included in the regular budget. Transfer of wealth from those who do not wish to surrender it to those who lust for it takes 4. REGULATION legislative action. There are current proposals that would establish international pollution The current worldwide retreat from taxes or carbon production taxes to control monopolistic government ownership of property unintended global warming. These would both does not presage similar government renunciation serve as regulatory devices and raise money that of regulating economic activities. In fact it could be used to assist less developed nations may mean government interference in the free upgrade their industry without disastrously enterprise system will shift in formerly increasing their communistic and socialistic countries from (Moomaw, 1990). Such. fees can come about only ownership to regulation. Certainly, if the through adapting laws which would require tax United States is to be a model, administrative payments. regulation will replace ownership, for regulation is as American as apple pie. In this country we There is a parallel of these special taxes have long practiced government intervention in proposed for fighting global warming with order to protect the public interest. There are government financial arrangements in the High environmental codes, health regulations, and Plains states in the United States. By laws business laws that control all economic patterned on state statutes authorizing creation activities -- including cloud seeding. of irrigation districts, there are provisions for establishing special weather modification Weather modification is additionally districts empowered to assess and collect regulated in the United States through a system property taxes to finance cloud seeding projects. of licenses and permits. Thirty-one states have By law money is raised that is earmarked for such statutes and administrative rules designed intentional weather alteration (Donnan et al., to allow use of the technology only by competent 1976), just as the proposals would and honest persons in operation of well planned raise money to combat greenhouse gas emissions. and conducted projects (Weather Modification Ass’n, 1992). Before persons launch weather Once arrangements have been made for modification activities, they must obtain raising money to defray cloud seeding costs, governmental consent in the form of a spending such public funds usually involves a professional license. Standards for getting and two-step process. First there must be keeping a license require educational and

123 experience qualifications. Prior to mounting a implementation plans for achieving the goals set. cloud seeding project, an individual or These plans coul4 deal with any atmospheric organization must obtain an operational permit. pollutants which play a role in creating the Applicants must demonstrate that the project is unintended weather change. Joint federal and scientifically sound and otherwise does not state intervention could accomplish the interfere with the public welfare and safety. regulation (Squillace, 1988). Similarly there federal legislation supporting the concept of Regulation also is a cloud seeding model regional planning clearinghouses which have for governments who would grapple with the jurisdiction crossing state lines and which can unintended impacts of human activities on weather mandate acceptable local land use planning as a and climate. For example, the Clean Air Act of condition to obtaining federal expenditures in 1990 and the international ozone agreements have the areas served by the clearinghouses (U.S. Code impacts on global warming. They restrain Tit. 31, § 6506; Executive Order 12372, July 14, production and use of materials which not only 1982). Again it is a federal/state partnership. have been tied to the stratospheric ozone The National Flood Insurance Program is another depletion problem, but also to the greenhouse illustration of such a partnership of the federal effect. Cholorofluorocarhons (CFCs) are government with local entities in requiring them greenhouse gases. The precedent of governmental to enact and enforce land use planning (DeMeo control of cloud seeding activities is now being Merriam, ~988). followed by the international and national laws banning production and use of the ozone impacting Global climate change is being attacked refrigerants (Boyle, 1990). through the on an international level. So also has been the stratospheric ozone Planning law is intended to regulate land depletion problem. The 1985 Vienna Convention use patterns. It is a tool, along with for the Protection of Ozone layer and the 1987 environmental law devices such as state clean air Montreal Protocol are international agreements implementation plans, which can be used to deal dealing with reduction and eventually replacement with the urban heat island. Through planning, of CFCs which have been identified as causing the land uses may be restricted in areas where they (Boyle, |990). would contribute to negative weather changes, or uses may be shifted to places where the heat Cloud seeding tends to create local island or changes can benefit them concerns; regulation is at the local or state (Davis, 1990). level. Inadvertent weather modification covers larger areas; potential regulatory devices are 5. SCALE OF INTERVENTION multistate in character. World-wide climate change is a global problem; it should be dealt Legal control of cloud seeding in the with on an international basis. Negotiations now United States has been carried out at the local are under way to do just that. The United and state levels. The only federal regulation is Nations is sponsoring a June 1992 conference in a reporting requirement which Congress authorized Rio de Janiero, Brazil (the 20th anniversary of the Department of Commerce to implement. NOAA the Stockholm Conference on the Human has been delegated authority to require reports Environment) which will consider an international about cloud seeding activities. These reports framework convention for limiting greenhouse gas are collected, organized, and published emissions (Fitzgerald, 1990). The cloud seeding (Blackmore & Bennett, 1991). But a mere model deals with atmospheric change at that level reporting requirement is hardly a regulatory of government which best can cope with it. program. The federal government has left the Tackling global climatic change is a job cloud seeding regulatory field to the states. requiring international as well as national legal activities (Guruswamy, 1990). At least one explanation for the states’ primacy in regulating cloud seeding is that it is 6. CONCLUSION proper for jurisdictions with limited territorial authority to regulate activities which similarly This paper has considered a tetralogy of have limited territorial impact. Although it is prototypes left by weather modification law for possible for atmospheric water resources those who would ~,se law to cool the urban heat development projects or seeding operations island and precipitation change associated with to have effects that are interstate or it and reduce global warming caused by emission international in scope, it is not common for them of greenhouse trace gases. Whomever would do to do so. Weather modification is practiced in a something about these atmospheric changes can local or state context. And regulation of cloud gain understanding from the legal experiences of seeding also is a matter for local or state persons and groups who have operated or sponsored governments. Or at least that is how it has cloud seeding projects. worked in the United States. The scale of intervention fits the scale of the activity. The ancients believed that there were four elements--earth, air, water, and fire. (Today As has been noted, there is no explicit only fire has escaped pollution.) The four regulation of unintended weather modification. patterns from cloud seeding law to implementing But there are legal mechanisms which could be legal control over urban and global warming are employed to deal with it. Among them are the in their own way much like those four elements. Clean Air Act and the land use planning process. Liability law simply does not function well in The Clean Air Act is the basis for a the atmospheric change arena. Cloud seeding law federal/state partnership, one in which the teaches that. Government funding encounters a federal government sets the ground rules maze of prerequisites--raising the funds, (regulatory targets) and the states then develop authorizing a program, and appropriating the

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required money. That happened first with Fitzgerald, J., 1990. the Intergovernmental intended weather modification and now can be seen Panel On Climate Change: Taking the First in the unintended atmospheric change cases. Steps Toward A Global Response. So. Ill. Law Regulation of cloud seeding has been a success, Rev., 14, 231. but that has been at least in part because it has been carried out at the proper governmental level Guruswamy, L., 1990. Global Warming: to effect regulation. National regulation (with Integrating United States and International state and local inputs) is the way to deal with Law. Ariz. Law Rev., 32, 221. inadvertent weather modification, and international regulation (with national inputs) Keeton, W., D. Dobbs, R. Keeton & I. Owen, 1984. is the way we are starting to cope with climate Prosser & Keeton on the Law of Torts. West change. The level of intervention fits the level Publ., St. Paul, MN. of the problem. It is a successful arrangement for cloud seeding and hopefully it also will be Keyes, C., 1983. How to Implement A Cloud successful to meet the urban and planetary Seeding Program. J. Irrig. & Drain. Engr., warming problems. Like fire, one of the four 109, 170. elements of antiquity, fitting the scale of regulation to the scale of societal impacts from Lehan, E., 1981. Simplified Governmental atmospheric change has escaped being sullied. It Budgeting, pp. 8-9. Mun. Fin. Off. Ass’n., is a useful prototype. Chicago, IL.

7. REFERENCES Mann, D., 1968. The Yuba City Flood: A Case Study of Weather Modification Litigation. Blackmore, W. & S. Bennett, 1991. A Summary of Bull. Am. Meteor. Soc’y, 49, 690. Weather Modification Activities Reported in the United States During 1989. Weather Mod. J., Moomaw, W., 1990. Scientific and International 23, i01. Policy Responses to Global Climate Change. Fletcher.Forumof World Affairs, .~990, 249. Boyle, A., 1990. Current Developments: International Law: Environmental Protection. Squillace, M., 1988. . Anderson Internat’l & Comparative Law Q., 39, 940. Publ., Cincinnati, Ohio.

Changnon, S. & W. Lambright, 1987. The Rise and St.-Amand, P., R. Davis & R. Elliott, 1973. Fall of Federal Weather Modification Policy. Report on Rapid City Flood of June 9, 1972. Weather Mod. J., 19, i. Weather Mod. J., ~, 318.

Corell, R., 1991.. The U.S. Global Change Weather Modification Advisory Board, 1978. The Research Program: An Overview and Perspectives Management of Weather Resources (2 vols.). of the FY 1992 Program. Bull. Am. Meteor. Washington, D.C. Soc’y, 72, 605. Weather Modification Association, 1992. Legal Davis, R., 1990. The Legal Implications of Regulation ~f Weather Modification in the Inadvertent Weather Modification. Report on United States and Canada. Weather Mod. J., 24, Grant ENV76-80996 to Nat’l Sci. Found. in press.

, 1988. The June 1972 Black llills Flood and Webster, F., 1980. NOAA’s New Thrust In Weather the Law. Weather Mod. J., 2082. Modification. Weather Mod. J., 12, 115.

, 1987. Four Decades of American Weather Modification Law. Weather Mod. J., i~9, 102.

__, 1968. The Legal Implications of Atmospheric Water Resources Development and Management. Report on Contract 14-06-D-6224 to Bur. Reclamation.

Davis, R. & P. St.-Amand, 1975. Proof of Legal Causation in Weather Modification Litigation: Reinbold v. Sumner Farmers, Inc., and Irving P. Krick, Inc. Weather Mod. J., 7__, 127.

DeMeo, R. &. D. Merriam, 1988. Flood Damage Protection: Impact of the National Flood Insurance Program. Zoning & Planning Law Rep., ii, 65.

Donnan, J., J. Pellett, R. Lebland & L. Ritter, 1976. The Rise and Fall of the South Dakota Weather Modification Program. Weather Mod. J., 8(i),i.

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