on Demand: Regulating Modification Throughout the

Adriana Vélez-León*

uring a severe period that lasted approxi- businesses on the island, about 28% of the island’s total, mately fve months in 2015, Puerto Ricans endured water was turned of for seventy-two hours and then back on seventy-two consecutive hours with water cutofs, for only twenty-four hours, while others were going without Dintensifed forest fres, and a decline in agriculture produc- water in forty-eight hour cycles, sending people into despera- tion that elevated losses to thirteen million dollars.1 Te tion and a frenzy of water collection.7 Weather modifcation Puerto Rican government set up water trucks throughout the was the last shot at rain amidst a dire situation in Puerto Rico island that served as an “oasis” in moments where water was where water was scarce and with no signs of improvement. shut of.2 In times where there were no water trucks in sight, As a result of what has been labeled as one of the worst, Puerto Ricans resorted to the water in toilet tanks to clean if not the worst, drought in Puerto Rico’s history, in July their hands, children took bucket baths, and, in restaurants, 2015 the Aqueduct and Sewer Authority entered into a three- plastic cups replaced glass ones.3 month contract with Seeding Operations & Atmospheric In August 2015, the U.S. Drought Monitor4 reported that Research in hopes of creating rain over three of the thirty-four of seventy-eight municipalities in Puerto Rico island’s main water reservoirs.8 By the end of the contract, on were experiencing extreme drought.5 As a result, Puerto October 31st, 2015, the water-rationing plan in Puerto Rico Rico’s Aqueduct and Sewer Authority was forced to imple- ceased and certain rain events, which brought approximately ment a strict water-rationing plan that commenced in March one foot of rainfall, were attributed to the weather modifca- 2015, and cost the public agency close to twelve million dol- tion operations that took place in the island.9 lars per month.6 For approximately 340,000 households and As rise and decreases, the environmental efects of change threaten freshwa- * Adriana Vélez-León is a 2017 J.D. Candidate at Te George ter supplies across the United States and, as a consequence, Washington University Law School. She received her B.A. in are intensifed, exemplifed by the extreme situa- Journalism from the University of Puerto Rico, Río Piedras campus, tions in Puerto Rico and California.10 Internationally, the and is Senior Articles Editor of the George Washington Journal of predicts that by 2025, 1.8 billion people will Energy & Environmental Law. Te author would like to thank her be living in countries with absolute ,11 and two- family and friends for their constant love and support. She would also like to thank Professor Andrew Satten and Lauren Schaedig for their insight and guidance throughout the Note writing process. 7. Agencia EFE, supra note 1. 8. Rivera, supra note 6. 1. Agencia EFE, Advierten la Sequía que Afecta a Puerto Rico Puede Ser la Peor de la 9. Harry Rodríguez, Exitosa Siembra de Nubes en PR, Metro (Oct. 21, 2015), Historia, Primera Hora (June 6, 2015, 7:35 PM), http://www.primerahora. http://www.metro.pr/noticias/exitosa-siembra-de-nubes-en-pr/pGXoju!vr4wp com/noticias/puerto-rico/nota/adviertenlasequiaqueafectaapuertoricopuede WBDRJ9q2/. serlapeordelahistoria-1089443/. 10. Justin Gillis, California Drought Is Made Worse by Global Warming, Scientists 2. Lizette Alvarez, Water Crisis Brings Out Puerto Rico’s Creative Side, N.Y. Times, Say, N.Y. Times, Aug. 20, 2015, http://www.nytimes.com/2015/08/21/ July 14, 2015, http://www.nytimes.com/2015/07/15/us/in-drought-puerto- science/climate-change-intensifes-california-drought-scientists-say.html. rico-rations-water-setting-of-a-collection-frenzy.html?_r=0. 11. Water Scarcity Factsheet, UN-Water 2014 (May 17, 2013), http://www. 3. Id.; see also Chris Bury, How Puerto Rico Is Coping With the Worst Drought unwater.org/publications/publications-detail/en/c/204294. Te United in Decades, PBS Newshour (Dec. 29, 2015, 6:30 PM), http://www.pbs.org/ Nations defnes water scarcity as “[t]he point at which the aggregate impact newshour/bb/how-puerto-rico-is-coping-with-the-worst-drought-in-decades/. of all users impinges on the supply or quality of water under prevailing 4. Te U.S. Drought Monitor is produced through a partnership between the institutional arrangements to the extent that the demand by all sectors, National Drought Mitigation Center at the University of Nebraska-Lincoln, including the environment, cannot be satisfed fully.” International Decade for the United States Department of Agriculture, and the National Oceanic Action “Water for Life” 2005–2015: Water Scarcity, United Nations, http:// and Atmospheric Administration. U.S. Drought Monitor, Nat’l Drought www.un.org/waterforlifedecade/scarcity.shtml (last updated Nov. 24, 2014). Mitigation Ctr., http://droughtmonitor.unl.edu (last visited Apr. 2, 2016). Te United Nations further explains that “[w]ater scarcity is a relative concept 5. Alvarez, supra note 2. and can occur at any level of supply or demand[ ]”and that “[s]carcity may be a 6. Maricarmen Rivera, Vuelve la Siembra de Nubes, El Vocero de P.R. (Sept. 11, social construct . . . or the consequence of altered supply patterns—stemming 2015, 4:00 AM), http://elvocero.com/vuelve-la-siembra-de-nubes/. from for example.” Id.

148 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW Vol. 8 No. 2 thirds of the world population could live under water stress cation Control Act. Furthermore, this part will identify and conditions.12 Given this disturbing background, weather analyze any challenges and obstacles the proposed Act might modifcation activities are gaining momentum because of confront, highlighting legal obstacles. the technology’s ability to artifcially create rainfall through seeding. Weather modifcation may be a crucial key in I. Overview of Weather Modification, Its staving of a possible freshwater shortage crisis. Benefits, and Concerns Although weather modifcation technology has existed 13 for approximately seventy years in the United States, Weather modifcation is a complex technology that is not yet both state and federal governments’ involvement in its well understood by many. Te basics of weather modifca- 14 regulation has been limited. Most legal control of cloud tion and its diferent uses are discussed below. Although a seeding, if any, in the United States has been carried out convoluted technology, weather modifcation provides many at local and state levels. Nevertheless, one of the biggest diferent benefts, such as suppression and rain aug- problems with state regulation of weather modifcation mentation. Nevertheless, as explained further below, this is that, since weather recognizes no political or territorial technology is a cause for concern among those who believe boundaries, the efects of weather modifcation are com- weather modifcation can be used in the future as a new kind monly interstate and, therefore, result in conficting, var- of powerful weapon. ied, and weak state regulations. Given the interstate efects, discussed infra Part III.A, A. The Basics of Weather Modification that arise from weather modifcation activities and the value of water as a commodity, Congress, by the powers Despite almost seventy years of use,15 weather modifcation vested in it under the Commerce Clause, should enact the is one of the least understood environmental practices cur- National Weather Modifcation Control Act, a law that rently taking place. Weather modifcation is a form of atmo- will establish comprehensive federal regulation of weather spheric environmental alteration based on the theory that modifcation activities. Tis Act will serve to regulate the the introduction of correct amounts of particular “seeding weather modifcation feld and establish federal standards agents” into some types of clouds will alter the precipitation that the states shall comply with under a program of coop- formation process.16 Specifcally, according to a report by erative federalism. the National Science Foundation, weather modifcation “is In advancing this proposal, by way of background, Part taken to mean artifcially produced changes in the composi- I will briefy review what weather modifcation is, how it tion, motion, or dynamics of the , whether or not functions, and its diferent benefts. Furthermore, this part such changes may be predictable, their production deliberate will explain some concerns that surround weather modifca- or inadvertent, or their duration transient or permanent.”17 tion activities. Part II will focus on the legal development of Currently, most weather modifcation projects are used weather modifcation in the United States and will address to either enhance or stop precipitation, or to suppress .18 the lack of federal regulation in this feld. Tis part will also Other forms of modifcation include suppression, detail the diferent and weak weather modifcation regula- hurricane diversion, and dissipation.19 Te usual tech- tions across the states. Ultimately, this part will broadly illus- nique involved in these types of weather modifcation proj- trate the serious faws that make current state regulations ects consist of “seeding clouds” with silver iodide, either by inefective to lay the foundation for the argument that the dropping it from planes or launching it from a station on the regulatory system of weather modifcation should no longer ground, in order to serve as nuclei around which cloud drop- be left to the discretion of the states, but should be vested in lets might form ice crystals.20 Tese nuclei help the cloud the federal government. Part III analyzes why weather modi- produce precipitation by freezing supercooled liquid water, fcation should be regulated on a federal level to minimize the possibility of adverse efects from activities 15. In 1946, General Electric had its scientists inject dry ice into a cloud in what and to avoid interstate legal issues. Part IV will introduce and is known as the earliest, if not the frst, attempt at manipulating the clouds. Corbridge & Moses, supra note 13, at 209. explain the proposed solution, the National Weather Modif- 16. Ray J. Davis, Weather Modifcation Law Developments, 27 Okla. L. Rev. 409, 409 (1974) [hereinafter Weather Modifcation Law Developments]; see also Ray J. Davis, Weather Modifcation Interstate Legal Issues, 15 Idaho L. Rev. 555, 12. Water stress refers to “[t]he ability, or lack thereof, to meet human and ecological 555 (1978–1979) [hereinafter Weather Modifcation Interstate Legal Issues]. demand for water. Compared to scarcity, water stress is a more inclusive and 17. Special Comm’n on , Weather & Climate broader concept. It considers several physical aspects related to water resources, Modification 7 (1965), https://www.nsf.gov/nsb/publications/1965/nsb1265. including water scarcity, but also water quality, environmental fows, and the pdf. accessibility of water.” Peter Schulte, Defning Water Scarcity, Water Stress, and 18. Weather Modifcation Interstate Legal Issues, supra note 16, at 555. Water Risk: It’s Not Just Semantics, Pacific Inst. (Feb. 4, 2014), http://pacinst. 19. Guive Mirfendereski, An International Law of Weather Modifcation, 2 org/water-defnitions/. Fletcher F. 41, 42 (1978). 13. James N. Corbridge, Jr. & Raphael J. Moses, Weather Modifcation: Law and 20. Weather Modifcation Interstate Legal Issues, supra note 16, at 555; see also W. Administration, 8 Nat. Resources J. 207, 209–10 (1968). Water States Council, Water Laws & Policies for a Sustainable Future: 14. See id. at 217–19. A W. States’ Perspective vii (2008); Zev Levin, On the State of Cloud

Spring 2017 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW 149 150 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW Vol. 8 No. 2 which are cloud droplets still in liquid form at temperatures tric utilities can generate additional hydroelectric power35 colder than thirty-two degrees Fahrenheit.21 Often, natural from augmented runof, which fows into reservoirs, or ice nuclei are “[i]nefcient or lacking in sufcient numbers in from enhanced fows in rivers, which have hydroelectric the atmosphere.”22 Tus, adding more efcient silver iodide generation facilities.36 Finally, agricultural organizations nuclei through cloud seeding can increase precipitation pro- desire “additional runof for irrigated agriculture or direct duction of the cloud.23 Te aim of cloud seeding is to ulti- precipitation on crop or range lands during the growing mately control both the type and quantity of these ice nuclei .”37 Weather modifcation has provided a variety of in clouds in order to release, or stop precipitation.24 benefts to all interested sponsors. Te weather modifcation process is not as simple as it may seem. It is important to point out that cloud seed- B. Benefits of Weather Modification ing will operate only within existing clouds.25 Clouds must already be in the atmosphere in order for any cloud seeding Te scientifc community and private commercial operators to be done. Weather modifcation does not “create weather;” have long recognized the advantages of successful weather rather, it takes existing weather and alters it.26 Terefore, modifcation.38 Although weather modifcation activities are planning ahead of time, and before a serious drought sce- mostly recognized by their rain-augmenting benefts, this nario, will be imperative for any potentially successful cloud science has also proven valuable for numerous other reasons, seeding operation. Moreover, not all clouds are good candi- such as storm suppression. Since weather events can have dates for cloud seeding. To be successfully seeded, clouds severe adverse efects on property and economic activity, the must possess a sustained updraft of moist air, a lack of natu- gross benefts of successful weather modifcation activities ral ice, and be signifcantly cold enough to contain super- are, in comparison, very high.39 cooled liquid water.27 Although difcult to measure exactly, the operational Furthermore, cloud seeders must insert an appropriate costs of weather modifcation activities are small relative amount of material into the right sort of cloud, and they to its gross benefts.40 For example, “annual losses due to must do so at the correct time and place in order to obtain drought are approximately eight billion dollars, which is a desirable results.28 For example, in order to efectively pro- higher estimate than for any other natural hazard.”41 On the duce precipitation through cloud seeding, each liter of air other hand, “the cost of a project depends upon the target needs only one artifcial ice nucleus.29 If a cloud is over- area size, season and topography, types of seeding to be con- seeded it becomes glaciated, or made mostly of ice crystals, ducted, needed equipment and personnel, and the length leaving few supercooled water droplets in the cloud.30 As a of the desired project period.”42 Te state of Wyoming con- result, ice crystals are not able to grow in the cloud and, thus, ducted the Wyoming Weather Modifcation Pilot Program evaporate dissipating the cloud.31 Despite the complexity of (“WWMPP”), from 2005 to 2014, to assess the feasibility this science, diferent groups of weather modifers are able to of increasing the state’s water supplies through cloud successfully conduct weather modifcation activities. seeding.43 At the culmination of the program, based on Most cloud seeding projects are conducted by a hand- a potential increase in precipitation from seeded of ful of highly specialized commercial frms working under 5-15%, the evidence from statistical, physical, and modeling contract for a variety of sponsors.32 Te usual sponsors analysis suggested that cloud seeding was a viable technology include municipalities, hydroelectric utilities, and agricul- to augment existing water supplies in Wyoming.44 Te esti- tural organizations.33 Municipalities are mostly interested mated annual costs per winter season for a purely operational in weather modifcation projects because of its ability to increase water supplies.34 On the other hand, hydroelec- 35. Hydroelectric power or hydropower is “using water to power machinery or make electricity.” How Hydropower Works, U.S. Dep’t Energy: Off. Energy Seeding for Rain Enhancement 2 (Cypress Inst., 2009), http://www.cyi. Efficiency & , http://energy.gov/eere/water/how- ac.cy/system/fles/Report_EEWRC_omformat.pdf. hydropower-works (last visited Apr. 2, 2016). 21. Common Questions and Answers About Cloud Seeding, N.D. Atmospheric Res. 36. FAQs Concerning Cloud Seeding Activities Designed to Increase Precipitation, Bd., http://www.swc.state.nd.us/arb/ndcmp/pdfs/q_a.pdf (last visited Apr. 2, supra note 32. 2016). 37. Id. 22. Id. 38. See Corbridge & Moses, supra note 13, at 208. 23. Id. 39. See Steven T. Sonka, Economics of Weather Modifcation: A Review, 89 Ill. Inst. 24. Virginia Simms, Making the Rain: Cloud Seeding, the Imminent Freshwater Nat. Resources Rep. Investigation 51 (1979), http://www.isws.illinois.edu/ Crisis, and International Law, 44 Int’l Law. 915, 918 (2010). pubdoc/ri/iswsri-89.pdf. 25. Barry B. Coble, Benign Weather Modification 12 (June 1996); see also 40. See id. Simms, supra note 24, at 919. 41. Te Weather Modifcation Research and Technology Transfer Authorization Act of 26. Coble, supra note 25, at 22. 2005: Hearing on S. 517 Before the Subcomm. on Sci. & Space & the Subcomm. 27. Common Questions and Answers About Cloud Seeding, supra note 21. on Disaster Prevention & Prediction of the S. Comm. on Commerce, Sci., & 28. Weather Modifcation Interstate Legal Issues, supra note 16, at 555. Transp., 109th Cong. 28 (2005) (statement of E. Benjamin Nelson, Sen. from 29. Coble, supra note 25, at 12. Neb.) [hereinafter Weather Modifcation and S. 517]. 30. Id. 42. Information Resources: Frequently Asked Questions, Weather Modification 31. Id. Incorporated, http://www.weathermodifcation.com/resources.php (last 32. Frequently Asked Questions (FAQs) Concerning Cloud Seeding Activities Designed visited Sept. 25, 2016). to Increase Precipitation, Weather Modification Ass’n, http://www.weather 43. Te Wyoming Weather Modifcation Pilot Program: Level II Study, Wyo. Water modifcation.org/faq.php (last visited Apr. 2, 2016). Dev. Commission (Dec. 2014), http://wwdc.state.wy.us/weathermod/ 33. Id. WYWeatherModPilotProgramExecSummary.html. 34. Id. 44. Id. 2017 RAIN ON DEMAND 151 program using remotely controlled ground based generators 2. Storm Control Through Weather Modification ranged from $375,500 to $526,400.45 Tus, the investment in cloud seeding operations, such as the WWMPP, is rela- Experiments have shown that weather modifcation activi- tively low when considering beneft-to-cost ratios. For the ties may be useful to reduce the destructive impacts of severe purposes of this Note, I will discuss the benefts and advan- storms, such as hurricanes or tornadoes.57 In 1961, the National tages of precipitation augmentation and hurricane diversion, Oceanic and Atmospheric Administration (“NOAA”), along although my proposed solution will impact all weather mod- with the Department of Defense and the National Science ifcation activities. Foundation seeded Hurricane Esther with silver iodide in an experiment called , reducing its wind 1. Benefits of Precipitation Augmentation force by 10%.58 Approximately eight years later, on August 18, 1969, NOAA once again attempted to weaken a hurri- Weather modifcation activities are mostly recognized by cane’s wind force by cloud seeding Hurricane Debbie with the benefts cloud seeding may provide to avert drought.46 silver iodide fve times during an eight-hour period.59 As a Economic studies show that precipitation augmentation has result, winds decreased by 31% between the frst seeding and the greatest potential economic impact compared to other fve hours after the ffth seeding.60 Nevertheless, the storm weather modifcation activities.47 And as these studies have re-intensifed the following day.61 On August 20, 1969, once shown, “precipitation augmentation through cloud seeding again NOAA seeded Hurricane Debbie, which resulted in a has enormous potential to help us moderate the adverse . . . wind speed drop of 15%.62 Notwithstanding this ability to economic costs of wide fuctuations in weather and climate.”48 weaken hurricanes, the federal government terminated Proj- Droughts in the United States cause average annual economic ect Stormfury in 1982 “because NOAA and the Department losses between six and eight billion dollars.49 Weather modi- of Defense could not maintain an operating relationship.”63 fcation projects help exponentially reduce these losses.50 Storm suppression through cloud seeding results not only Cloud seeding studies show an increase in rainfall which in hurricanes’ wind speed drop, but also in economic ben- results in an increase in both free-fowing and stored water sup- efts. Annually, hurricanes cause substantial fnancial loss plies.51 Tus, since only 5-15% of available moisture in clouds through physical damage and the high cost of precautionary naturally reaches the ground as precipitation, rain-augment- measures.64 For example, according to the National Climatic ing operations could increase U.S. water supplies signifcant- Data Center, damages from Hurricane Katrina in 2005 were ly.52 For example, during 2009 and with a $155,000 budget, estimated at approximately $105.8 billion in 2010 dollars.65 the Research Institute (“DRI”) in Nevada, considered Terefore, suppressing storms and diminishing the level of leaders in both research and practice of cloud seeding, seeded maximum sustained winds would seem to strongly reduce at Lake Tahoe.53 DRI seeded ffty-six weather events with an the detrimental characteristics of the hurricane event and, estimated increase of about 20,000 acre-feet of water consequently, lower fnancial losses that result from hurri- or nearly 6.6 billion gallons of water.54 From 1997 through canes’ damages. 2010, DRI “[h]as augmented snow water an average of about Although weather modifcation activities seem to provide 18,000 acre-feet for the Tahoe-Truckee region.”55 Tis snow a wide range of benefts in diferent areas, such as storm sup- water increase is enough to supply approximately 40,000 pression and freshwater increase, there is skepticism around households with water annually.56 From the results of these what some believe could be a powerful technology used as a studies, it is clear that precipitation augmentation is a viable new kind of weapon. method of addressing drought problems in the United States. C. Concerns About Weather Modification 45. Id. 46. Lance D. Wood, Te Status of Weather Modifcation Activities Under United Weather modifcation is a widely unknown and powerful States and International Law, 10 Nat. Resources Law. 367, 373 (1977). technology and, as such, has been a cause for concern among 47. See Arnett S. Dennis, Weather Modification by Cloud Seeding 228 (Acad. Press, 1980). those that speculate that it can have health and national secu- 48. See Comm. on Climate Uncertainty and Water Res. Management et al., rity repercussions. Skeptics have voiced concerns regarding Managing Water Resources in the West Under Conditions of Climate weather modifcation’s use as a new kind of weapon. In the Uncertainty: A Proceedings 301 (Nat’l Acads. Press, 1991). 49. Weather Mitigation Research and Development Policy Authorization Act of 2009, S. 601, 111th Cong. (1st Sess. 2009) [hereinafter Weather Act of 2009]. 57. Wood, supra note 46, at 370. 50. During the 1980s, “[t]he suppression of hail in the United States alone ofers a 58. See id. potential saving of roughly $500,000,000 per year.” Dennis, supra note 47, at 59. Ray J. Davis, State Regulation of Weather Modifcation, 12 Ariz. L. Rev. 35, 37 228; see also Weather Act of 2009, supra note 49. (1970) [hereinafter State Regulation of Weather Modifcation]; see also Wood, 51. See Weather Modifcation Interstate Legal Issues, supra note 16, at 555. supra note 46, at 370. 52. U.S. S. Select Comm. on Nat’l Water Resources, 86th Cong., Water 60. State Regulation of Weather Modifcation, supra note 59, at 37. Resources Activities in the U.S.: Evapo-Transpiration Reduction 61. Id. at 37–38. (Comm. Print 1960). 62. Id. at 38. 53. DRI Receives Funding to Continue Cloud Seeding Program for 2011, Desert Res. 63. Wood, supra note 46, at 388. Inst. (Oct. 20, 2010), http://www.dri.edu/newsroom/news-releases/3404-dri- 64. See Eric S. Blake et al., Te Deadliest, Costliest, and Most Intense United receives-funding-to-continue-cloud-seeding-program-for-2011-season. States Tropical From 1851 to 2010 (And Other Frequently Requested 54. Id. Hurricane Facts), Nat’l Oceanic & Atmospheric Admin.: Nat’l Hurricane 55. Id. Ctr. (Aug. 2011), http://www.nhc.noaa.gov/pdf/nws-nhc-6.pdf. 56. Id. 65. Id. at 11. 152 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW Vol. 8 No. 2

1990s, the U.S. Air Force commissioned a report on weather Te EPA states that in concentrations of 0.1 milligrams of modifcation, which concluded that “[o]ver the course of the substance per liter of water, silver ingestion can cause skin next century, the weather will be our most powerful weapon. discoloration and a graying of the white part of the .77 Weather modifcation can provide battle space dominance to Te potential of using weather modifcation technology a degree never before imagined.”66 as a weapon and its health and environmental dangers adds One potential use of weather modifcation as a weapon is to the urgency that the federal government should regulate an “unmanned stealth aircraft that could seed clouds above and have centralized control over all weather modifcation massing troops” in order to “produce localized fooding activities in the United States. Tis way, the U.S. can reap the and create mud, which has been the bane of all of history’s benefts of this technology while still controlling its use and armies.”67 For example, from 1966 through 1972, the U.S. minimizing any concern of danger. military began Project Popeye, a cloud seeding operation designed to food supply routes used by the North Vietnamese II. Legal Development of Weather into South Vietnam.68 However, in 1977 the U.N. General Modification in the United States Assembly, in the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modifcation A. Weather Modification’s Legal Background Techniques, formally banned using weather modifcation as 69 a military tool. President Carter ratifed the Convention on As a result of the frst scientifcally controlled efort gen- December 13, 1979 and it entered into force for the United 70 erally recognized as constituting weather modifcation in States on January 17, 1980. 1946, the federal government organized several projects On the other hand, although opposing views exist regard- aimed at more thorough research and investigation of ing the danger of cloud seeding operations, some studies weather modifcation.78 Between 1947 and 1952, extensive indicate, “silver iodide is toxic and can produce harm when 71 government-funded tests demonstrated the possibility on a used in sufcient quantities and concentrations.” Specif- feld scale of modifying supercooled clouds to both increase cally, environmentalists have voiced concerns about the pos- and retard precipitation.79 sible dangerous consequences of injecting silver iodide into Consequently, legislative models started emerging during clouds since the chemical may break down and add concen- 80 72 what is known as weather modifcation’s “second phase.” trations of silver to the environment. According to research Te Advisory Committee on Weather Control was estab- scientists at the U.S. Geological Survey in Menlo Park, Cali- 73 lished, with a fxed duration of fve years, by act of Congress fornia, “silver is a powerful environmental toxin.” Silver has on August 13, 1953.81 Te Advisory Committee’s respon- the ability to kill microorganisms “indiscriminately and can 74 sibilities dealt primarily with the “evaluation of public and wipe out the benefcial ones as well as the pathogenic ones.” private experiments in weather control for the purpose of Furthermore, the toxin has a direct efect on the reproduc- 75 determining the extent to which the United States should tion of certain aquatic invertebrates and fsh. experiment with, engage in, or regulate activities designed Regarding health hazards to humans, the Environmental to control weather conditions.”82 Subsequent to the statutory Protection Agency (“EPA”) has classifed silver as a nuisance 76 termination of the Advisory Committee on Weather Control chemical, or secondary contaminant, in drinking water. in 1958, Congress directed the National Science Founda- tion (“NSF”) to investigate the feld of weather modifcation 66. Simms, supra note 24, at 935. and passed Public Law 85-510, which designated the NSF as 67. Id. the agency in charge of receiving reports on cloud seeding 68. Id.; see also Coble, supra note 25, at 4. 83 69. Article I of the Convention on the Prohibition of Military or Any Other activities. While there was no federal regulatory or opera- Hostile Use of Environmental Modifcation Techniques sets forth the basic tion program established, Congress provided appropriations commitment: “Each State Party to this Convention undertakes not to engage in military or any other hostile use of environmental modifcation techniques having widespread, long-lasting or severe efects as the means of destruction, damage or injury to any other State Party.” Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modifcation Techniques EPA does not enforce these “secondary maximum contaminant levels.” Te art. 1, opened for signature May 18, 1977, 31 U.S.T. 333. standards established only act as guidelines to assist public water systems 70. Id. in managing their drinking water for aesthetic considerations, such as 71. See Ray J. Davis, Black Clouds and Silver Iodide: Public Safety and Weather taste, color, and odor. Secondary Drinking Water Standards: Guidance for Modifcation Law, 23 J. Weather Modification 63 (1991) [hereinafter Black Nuisance Chemicals, U.S. Envtl. Protection Agency, https://www.epa. Clouds and Silver Iodide]. But see Samantha Young, Governments Turn to Cloud gov/dwstandardsregulations/secondary-drinking-water-standards-guidance- Seeding to Fight Drought, U.S. News (Dec. 11, 2009), http://www.usnews.com/ nuisance-chemicals#what-are-secondary (last visited Apr. 2, 2016). science/articles/2009/12/11/governments-turn-to-cloud-seeding-to-fght- 77. Id. drought (stating that a study published in 2009 by the Weather Modifcation 78. See Corbridge & Moses, supra note 13, at 210. Association in the United States revealed that no “environmentally harmful 79. Id. efects” from silver iodide were shown). 80. Corbridge & Moses, supra note 13, at 210; see also Ray J. Davis, Four Decades 72. Simms, supra note 24, at 921. of American Weather Modifcation Law, 19 J. Weather Modification 102, 73. Robin Marantz Henig, Our Silver-Coated Future, 29 OnEarth 1, Sept. 1, 103 (1987) [hereinafter Four Decades of American Weather Modifcation Law]. 2007. 81. Jack C. Oppenheimer, Te Legal Aspects of Weather, 1958 Ins. L.J. 314, 315 74. Id. (1958). 75. Id. 82. Pub. L. No. 83-256, § 3, 67 Stat. 559, 559 (1953). 76. EPA has established National Secondary Drinking Water Regulations that set 83. Corbridge & Moses, supra note 13, at 211; see also Four Decades of American non-mandatory water quality standards for ffteen secondary contaminants. Weather Modifcation Law, supra note 80, at 103. Spring 2017 RAIN ON DEMAND 153 for research84 while the states took a leading role as weather ily concerned with investigating and coordinating weather modifcation regulators. States, especially those in arid set- modifcation, rather than with regulating it.”95 tings, began to enact weather control regulations.85 Te “golden years” of weather modifcation took place 1. Weather Modification Activities Federal during the 1970s when governmental interest and legal devel- Reporting Requirement opment of weather modifcation technology reached their 86 peak. On December 18, 1971, Congress enacted 15 U.S.C. As previously mentioned, the only federal regulation of § 330 providing for the reporting of weather modifcation weather modifcation is 15 U.S.C. § 330, which imposes a activities to the Secretary of Commerce, who was responsible mere reporting obligation of weather modifcation activities 87 for the maintenance and publication of such reports. Cur- with a maximum $10,000 fne for those who knowingly and 88 rently, NOAA implements the Act. Tis is the only act to willfully violate this requirement.96 Te Act provides that all date that is still in force regarding federal weather modifca- weather modifcation activities are subject to initial record- tion requirements. ing and submission of reports97 to the NOAA.98 However, Te promise of the “golden years” dwindled later during the Secretary of Commerce may require that said reports be 89 the 1980s. Governmental cloud seeding fnancial support submitted to him before, during, or after any weather modi- withered mostly because of budget cuts in this particular fcation activity or attempt.99 Moreover, after the Secretary 90 feld. Congressional weather modifcation research and has received initial notifcation of a planned weather modif- funding declined, as did the enactment of states’ weather cation activity, he may waive some of the subsequent report- 91 modifcation laws. ing requirements.100 Although cloud seeding regulation seemingly slowed Activities of federal agencies and their contractors, down, weather modifcation activities have not ceased. Cur- employees, or agents, however, are exempted from the report- rently, the number of private and state-funded weather modi- ing requirements of the Act.101 Te Act applies only to an fcation projects has jumped by nearly a third during the last “individual, a corporation, company, association, frm, part- 92 decade and a half. Te numbers regarding cloud seeding nership, society, joint stock company, any State or local gov- operations continue to rise: sixty-one projects in nine states ernment or any agency thereof, or any other organization, 93 were reported in 2010, thirteen more than in 1998. Never- whether commercial or nonproft.”102 theless, the only type of federal control all these operations Although this Act can be seen as an initial step towards are submitted to is the requirements of 15 U.S.C. § 330. Te federal regulation of weather modifcation, it falls short of broad and ambiguous requirements of the Act, which may providing the governmental machinery for coordination and take place even after the weather modifcation operation has regulation of weather modifcation activities. It provides no 94 culminated, do not provide the type of regulation required standards, requirements or guidelines for coordination and to address the efects of weather modifcation activities in the planning, or regulation and licensing of weather modifca- United States. tion activities.103

B. Lack of Federal Weather Modification Regulation 2. Weather Modification Regulation on Federally Designated Wilderness Areas Given the present failure of states to actively regulate weather modifcation activities, one might anticipate that legislators Aside from 15 U.S.C. § 330, federal regulation of weather at the federal level would have flled this regulatory void modifcation exists only on federally designated wilderness given that this is an interstate activity. Nevertheless, up to the area.104 Te U.S. Forest Services (“USFS”) and Bureau of present, “Congress and federal agencies have been primar-

95. Corbridge & Moses, supra note 13, at 219. 96. See 15 U.S.C. § 330(a), (d). 84. By the late 1970s, annual federal funding for cloud seeding projects reached 97. Weather modifers must submit to NOAA information such as: (1) project $20 million. Simms, supra note 24, at 927. or activity designation; (2) dates of project; (3) purpose of project or activity; 85. See Four Decades of American Weather Modifcation Law, supra note 80, at 104. (4) name, address, and phone number for the project sponsor and operator; 86. Id. (5) location and size of target and control areas; (6) a description of the weather 87. 15 U.S.C. § 330 (2012); see also Peter E. Graf, Weather Modifcation: Te Need modifcation apparatus, modifcation agents, and the techniques to be used; for a National Policy, 3 Golden Gate U. L. Rev. 343, 356 (1973). and (7) name, address, and phone number of the responsible individual from 88. 15 C.F.R. § 908 (2016). whom log books and records may be obtained. 15 C.F.R. § 908.4 (2016). 89. Four Decades of American Weather Modifcation Law, supra note 80, at 105. 98. See 15 U.S.C. § 330(a). 90. “[T]he basic consideration during the present weather modifcation decade 99. Id. has been economic. Regulation costs money; de-regulation is the rage. Budgets 100. “No person may engage, or attempt to engage, in any weather modifcation are tight; weather modifcation lacks the political constituency to be protected activity in the United States unless he submits to the Secretary such reports from budget-makers’ axes. Te money tree has borne less fruit.” Id. with respect thereto, in such form and containing such information, as the 91. Id. Secretary may by rule prescribe.” Id. (emphasis added). 92. See Simms, supra note 24, at 927. 101. Graf, supra note 87, at 356; see also Wood, supra note 46, at 374. 93. Agric. Def. Coal., A Summary of Weather Modifcation Activities Reported in 102. 15 U.S.C. § 330(2). 2010 (2010), http://www.agriculturedefensecoalition.org/sites/default/fles/ 103. See Graf, supra note 87, at 357–58. fle/weather/450WV_2010_NOAA_Final_Listing_of_Weather_Modifcation_ 104. Wilderness is defned by the Wilderness Act of 1964 as “[a]n area where the Programs_Spreadsheet_10WXMOD5.pdf. earth and its community of life are untrammeled by man, where man himself 94. 15 U.S.C. § 330(a) (2012). is a visitor who does not remain.” Furthermore, wilderness is defned as 154 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW Vol. 8 No. 2

Land Management (“BLM”) have specifc policies to regulate that favor said activities by providing taxing authority for weather modifcation activities in wilderness area.105 weather modifcation districts to laws that are so restrictive According to USFS regulation, long-term weather modif- they practically constitute an efective ban on weather modi- cation programs “that produce, during any part of successive fcation activities.113 Tis has resulted in a patchwork of state years, a repeated or prolonged change in the weather directly regulation across the U.S. that ranges from very stringent to afecting wilderness areas,” are not permitted.106 However, lax requirements. “[s]hort-term weather modifcation activities that produce only occasional, incidental, temporary, or transitory changes 1. Varied Weather Modification Regulation in the weather with carryover ground efects that last only Across the States a few days beyond the actual cloud-seeding period may be 107 permitted.” To carry out weather modifcation activities A survey of all state statutes reveals that thirty-three states,114 over wilderness areas administered by USFS, operators must the District of Columbia, Puerto Rico, and the Virgin Islands 108 satisfy certain criteria and obtain a permit. have had or currently have weather modifcation regulation On the other hand, BLM policy for weather modifcation to some degree. Te remaining seventeen states have opted to over wilderness largely mirrors that of USFS. State directors not adopt weather modifcation regulations for, what schol- are required to gather the necessary information about the ars believe to be, three main reasons. First, the uncertainties proposed activity and make recommendations to the Direc- surrounding the consequences of a relatively new and power- tor of the BLM on any activity or application for weather ful technology such as weather modifcation have led to some 109 modifcation operations. Te Director then determines skepticism among states.115 Second, there is a lack of federal whether to approve weather modifcation operations afect- government funds that can help with the implementation of 110 ing wilderness. As with USFS, applications for weather weather modifcation programs in the states.116 Lastly, states modifcation afecting BLM wilderness areas must meet cer- have banned “weather modifcation on the theory that rain 111 tain criteria. falling prematurely is rain stolen from the location where it would otherwise naturally fall.”117 Tis “robbing Peter to pay C. Weather Modification State Regulation Paul” theory, however, has been dispelled because clouds continually regenerate and release only a portion of their Te most recent information collected through the reporting moisture when it , which means weather modifcation requirements established in 15 U.S.C. § 330 revealed that operations cannot eliminate all the moisture from a cloud there were sixty-one cloud seeding projects in nine states and cannot “steal” rain from an area a cloud is ultimately carried out in 2010 and thirty-two cloud seeding projects traveling towards.118 carried out in the same nine states in 2011. Tese weather Te states that have enacted regulation regarding weather modifcation projects are currently subject to the particu- modifcation have done so in various and particular ways lar regulatory requirements established by each state legis- which have resulted in a broad diference in scope among the 112 lature. Tese state laws range widely in scope from laws diferent acts. Some states require only reporting of weather modifcation activities, others require some form of licens- “[a]n area of undeveloped Federal land retaining its primeval character and ing, but with no standards or criteria of competence, while infuence, without permanent improvements or human habitation, which 119 is protected and managed so as to preserve its natural conditions and which other states like Oklahoma are more stringent and require (1) generally appears to have been afected primarily by the forces of nature, a showing of fnancial responsibility in case of liability, which with the imprint of man’s work substantially unnoticeable, (2) has outstanding might result from said activities.120 Te following two sub- opportunities for solitude or a primitive and unconfned type of recreation, (3) has at least fve thousand acres of land or is of sufcient size as to make practicable its preservation and use in an unimpaired condition, and (4) may also contain ecological, geological, or other features of scientifc, educational, 113. See Dennis, supra note 47, at 242. scenic, or historical value.” 16 U.S.C. § 1131 (2012). 114. Tese states include Alaska, Arizona, California, , Florida, , 105. See Western Water States Council, supra note 20, at vII. Pennsylvania, Oklahoma, Kansas, Wisconsin, North Dakota, Utah, New 106. U.S. Forest Serv., Forest Service Manual § 2323.45 (2007). Mexico, Louisiana, Oregon, Idaho, Illinois, Indiana, Iowa, Maryland, 107. Id. Massachusetts, Michigan, Montana, Nebraska, Nevada, New Hampshire, 108. Te USFS may approve wilderness area as a target area for weather Rhode Island, South Dakota, Tennessee, Virginia, Washington, West Virginia, modifcation operations when: (1) the weather modifer provides scientifc and Wyoming. evidence that the activities will not produce substantial, permanent changes; 115. “[T]he uncertainties of an infant science such as weather modifcation may (2) the proposal includes no feature that will “visibly alter” or “impact the lead to critical variations between anticipated and actual results.” Corbridge & wilderness environment;” and (3) the proposal is not likely to “reduce the Moses, supra note 13, at 209. value of wilderness for recreation, scenic, scientifc, educational, conservation, 116. See Coble, supra note 25, at 17–18. or historical use.” U.S. Forest Serv., supra note 106. 117. Simms, supra note 24, at 927. 109. See Bureau of Land Mgmt., BLM Manual § 8560.36 (1983). 118. Amanda Little, Weather on Demand: Making It Rain Is Now a Global Business, 110. See id. Bloomberg Businessweek (Oct. 28, 2015), http://www.bloomberg.com/ 111. Te criteria that must be satisfed are: “(a) [t]he proponent can provide features/2015-cloud-seeding-/. reasonable, scientifcally supportable assurance that the activities will not 119. Te state of Oklahoma requires that “proof of fnancial responsibility shall be produce permanent, substantial changes in natural conditions; [and] (b) [t]he furnished by an applicant by his showing, to the satisfaction of the director, his proposal does not include any features that might reasonably be expected ability to respond in damages for liability which might reasonably be attached to produce conditions incompatible in appearance with the wilderness to or result from his weather modifcation and control activities in connection environment or reduce its value for recreation, scenic, scientifc, education, with the operation for which he seeks a permit.” 82 Okla. Stat. tit. 82, conservation, or historical use.” Id.; cf. U.S. Forest Serv., supra note 106. § 1087.14 (2015). 112. See Graf, supra note 87, at 359–60. 120. See Graf, supra note 87, at 359–60. Spring 2017 RAIN ON DEMAND 155 sections highlight the vast diference between state regula- Department of Agriculture regarded “[i]tself as unable to tions concerning weather modifcation. enforce registration because the statute carries no penalties.”128 Although states, like Idaho, have no robust weather modi- a. North Dakota fcation regulation, countries around the world are currently extensively regulating weather modifcation technology. On one hand, states like North Dakota have enacted detailed Unlike the United States, other countries’ governments, such regulatory weather modifcation statutes.121 As part of North as , have spent huge amounts of money to regulate this Dakota’s weather modifcation eforts, it currently has a technology, apply the diferent techniques, and ultimately statewide operational cloud seeding program called North reap their benefts. Dakota Cloud Modifcation Project.122 In North Dakota, “no person may engage in weather modifcation activities D. China’s Weather Modification Activities and without both a professional weather modifcation license . . . Regulation and a weather modifcation permit. . . .”123 In determining whether to issue a license, North Dakota sets forth a series of According to the World Meteorological Organization, rigorous requirements, such as a minimum of one year of feld weather modifcation programs, primarily involving cloud experience in the management and control of weather modi- seeding activities aimed at enhancing precipitation or miti- fcation operations or research, proof of fnancial responsibil- gating hail fall, exist in more than approximately ffty-two ity, and an explanation of whether a weather modifcation countries.129 One of these countries includes China, which operational permit issued to the applicant in any jurisdic- has the most “extensive weather modifcation program in tion has ever been suspended or revoked or whether there has the world, with more than 35,000 people working in cloud been refusal to renew a permit by any jurisdiction.124 After seeding programs across the country.”130 Te Chinese govern- a license has been efectively issued, North Dakota retains ment has enacted regulations promoting weather modifca- authority over weather modifcation activities by having the tion cooperation between provinces and regions.131 Also, the power to revoke or suspend any license for diferent rea- government funds a greatly expanded weather modifcation sons, such as incompetency, dishonest practice, or failure to research and operations program at $100 million per year, comply with any of the provisions or rules prescribed by the in addition to training over 1,500 new weather modifcation North Dakota legislature.125 scientists.132 China’s cloud seeding weapons include approxi- mately 6,781 artillery guns and 4,110 rocket launchers.133 In b. Idaho 2004, the Chinese government reported it eased drought by employing “[a]ircraft, rockets, artillery shells, meteorological On the other hand, states with more relaxed weather modi- balloons and mountain-top-based devices . . . to scatter silver fcation statutes, such as the state of Idaho, concern licensing iodide particles into gathering clouds to induce precipitation requirements that are essentially mere registration provisions in the form of rain or snow over the city.”134 which only require a cloud seeder to list their alleged quali- One of the biggest cloud seeding operations in China fcations, but no one has the responsibility to verify whether took place in Beijing in 2008 months before the they are competent, honest, and solvent. For example, the Olympics took over the Chinese city.135 In preparation for weather modifcation statute of Idaho purports on its face the Olympic games, Beijing ofcials set up cloud seeding sta- only to require registration of producers of artifcial rainfall tions where “peasants don military fatigues and helmets and with the state Department of Agriculture.126 Registration squat behind anti-aircraft guns and rocket launchers blast- only requires the “name of the person, association, or cor- ing the sky with silver iodide, hoping to shock rain from the poration, its residence, or principal place of business in the clouds.”136 Beijing ofcials planned to have these stations state of Idaho and the general nature of the business to be ready and, if rain threatened either the opening or closing cer- conducted.”127 However, the statute does not impose penal- emonies, they would “seed threatening clouds [using rocket ties on those who do not comply with it. Tus, if there are launchers] outside the city . . . and cause them to release their no consequences for noncompliance, the state’s Department rain before it reaches the capital.”137 of Agriculture is in a disadvantaged position to enforce the required registration requirements. In fact, in 1978, Idaho’s 128. Weather Modifcation Interstate Legal Issues, supra note 16, at 561–62. 129. Little, supra note 118. 130. Rocky Barker, Modifying Weather: Cloud Seeding Has Some New Believers, U.S. News (Nov. 19, 2009, 2:49 PM), http://www.usnews.com/science/ articles/2009/11/19/modifying-weather-cloud-seeding-has-some-new-believers. 121. See N.D. Cent. Code § 61-04.1 (2015); see also N.D. Cent. Code § 89-07- 131. See Simms, supra note 24, at 923. 02 (2014). 132. Weather Modifcation and S. 517, supra note 41. 122. Te North Dakota Cloud Modifcation Project, N.D. St. Gov’t: St. Water 133. Stephen Wade, Rain Out: China Aims to Control Olympics Weather, USA Today Comm’n & Off. St. Engineer, http://www.swc.nd.gov/arb/ndcmp/ (last (Feb. 29, 2008), http://usatoday30.usatoday.com/weather/research/2008-02- visited Sept. 23, 2016). 29-china-weather_N.htm. 123. N.D. Cent. Code § 61-04.1-11 (2015). 134. Cloud Seeding Eases Drought, China Internet Info. Ctr. (July 26, 2004), 124. N.D. Admin. Code §§ 89-07-02-07 to -14 (2014). http://www.china.org.cn/english/China/102176.htm. 125. N.D. Cent. Code § 61-04.1-15 (2015). 135. Wade, supra note 133. 126. Idaho Code Ann. §§ 22-3201 to -3202 (2015). 136. Id. 127. Id. § 22-3201. 137. Id. 156 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW Vol. 8 No. 2

Despite this arguable success in China’s Olympic games in the U.S. Supreme Court seeking an injunction to stop the preparation, the United States’ federal government still has cloud seeding.145 Attorney General Kidwell’s concern was not resorted to efectively control weather modifcation in based upon the belief that weather modifcation not only has order to reap all the benefts that stem from this technol- an impact upon the target areas selected for cloud seeding, ogy. Tere seems to be a paradox here where the federal gov- but can also have an adverse efect upon downwind areas ernment is not willing to spend funds to promote weather such as the Idaho panhandle.146 Fortunately, in this case, modifcation technologies and enact regulations, yet other Idaho Governor John Evans opted for a diferent approach countries are willing to spend huge amounts of funds to and proposed regional interstate coordination of cloud seed- apply these techniques and reap their benefts. ing eforts.147 Attorney General Kidwell voiced a common concern III. Need for Weather Modification between adjoining states from where a weather modif- Regulation on a Federal Level cation operation is taking place.148 Tus, weather modi- fcation should be federally regulated to minimize the Weather modifcation activities are prone to interstate legal possibility of adverse efects in downwind areas as well as in issues or adverse efects without any efective accountability target areas. Furthermore, Congress should enact compre- by the federal government. Nevertheless, a federal interest hensive regulation resolving or clearing liability issues and exists if any weather modifcation activity in the United questions and multi-state impacts that arise from weather States could have efects beyond one state’s border, or would modifcation activities. afect federal lands or activities.138 Tus, the federal govern- ment needs to take action and regulate weather modifcation B. Uniform Safety Standards across the United States in order to minimize the possibility 149 of adverse efects or issues, addressed below, from cloud seed- As discussed above, the use of silver iodide may present ing activities and to avoid interstate legal issues. a health and environmental hazard “when used in suf- 150 Present capabilities in the science of weather modifca- cient quantities and concentrations.” A trial court judge tion suggest that the need for comprehensive regulation at in Pennsylvania Natural Weather Ass’n v. Blue Ridge Weather a national level is imperative.139 As global warming takes Modifcation Ass’n, noted that various seeding agents “are an exponential toll on fresh water supplies and weather poisonous” and concluded that “possible harm can result patterns,140 the science of weather modifcation, and the from uncontrolled and unregulated weather modifcation 151 implied issues that result thereof, is efectively taking a domi- activities.” Given the uncertain nature of this science there nant role in attempting to alleviate environmental efects that exist concerns over the long-term consequences of injecting 152 result from climate change.141 Terefore, the federal govern- silver iodide into clouds in order to manipulate the weather. ment must resolve current issues and difculties presented by Substantial risk upon “land, people, health safety, prop- weather modifcation in order to ensure its expansion while erty, or the environment” has always been of sufcient impor- 153 safeguarding weather modifcation operators and those who tance to Congress as to call for legislative action. Tus, may be afected by the activities. Congress needs to step in and regulate weather modifcation activities nationwide and establish consistent and minimum A. Interstate Impact and Legal Issues standards of care in order to ensure or minimize any risk to public health, safety, and welfare that could result from Te weather knows no territorial or political boundaries and, unregulated cloud seeding operations. thus, its efects and impacts travel across states’ borders result- ing in multijurisdictional consequences. Tese issues could C. Lack of State Funding arise, for example, when an individual or government causes extra rain, which then foods a neighboring state’s feld.142 One of the obstacles to weather modifcation at the state level During the mid-1970s, a precipitation alteration project has been the fnancing and funding of weather modifcation 154 operated in Idaho and neighboring states gave rise to inter- activities. “Te States have small amounts of money and state legal issues.143 Washington state’s legislature was con- personnel to administer and enforce their regulations,” and sidering a bill to appropriate funds for drought relief cloud seeding activities.144 Nevertheless, Idaho Attorney General 145. See id. 146. See id. Wayne Kidwell protested the bill and threatened to fle a suit 147. See id. 148. See N.D. Atmospheric Res. Bd. v. Bd. of Nat. Res. & Conservation, 1992 138. See Wood, supra note 46, at 390. Mont. Dist. LEXIS 60 (Mont. Dist. Ct. 1992) (upholding North Dakota’s 139. See Corbridge & Moses, supra note 13, at 225. cloud seeding project despite allegations that it would have potential adverse 140. See Alex Morales, Global Warming Seen Taking Toll on Economy, Health, efects in the state of Montana). Crops, Bloomberg, Nov. 4, 2013, http://www.bloomberg.com/news/ 149. See supra Part I. articles/2013-11-04/global-warming-seen-taking-toll-on-economy-health- 150. See Black Clouds and Silver Iodide, supra note 71, at 63. crops. 151. Pa. Nat. Weather Ass’n v. Blue Ridge Weather Modifcation Ass’n, 44 Pa. D. & 141. See Simms, supra note 24, at 918. C.2d 749, 761 (Pa. C.P. 1968). 142. See id. at 933. 152. See Simms, supra note 24, at 921. 143. See Weather Modifcation Interstate Legal Issues, supra note 16, at 555. 153. Black Clouds and Silver Iodide, supra note 71, at 64. 144. See id. at 556. 154. See Oppenheimer, supra note 81, at 317. Spring 2017 RAIN ON DEMAND 157 their weather modifcation activities are usually conducted as that has interstate efects or a direct an incident to other conservation, water resources, or agricul- efect on interstate commerce.162 tural programs.155 State ofcials have noted that the absence In enacting the major environmental statutes, Congress of explicit legal authority to the states renders improbable for broadly construed its Commerce Clause powers reaching states to appropriate general funds or levy taxes to fnance practically any matter of national concern.163 For example, weather modifcation activities.156 Nevertheless, in the past, the Endangered Species Act (“ESA”) allows the listing and diferent states have shown interest in cooperating with the protection of species that have no readily apparent connection federal government and obtaining federal funding for the to interstate commerce, and it purports to impose restrictions weather modifcation eforts in their respective states.157 on conduct that harms listed species regardless of whether Tus, funds provided by the federal government acting in that conduct is commercial in nature.164 Te ESA thus pro- conjunction with the states would likely spark weather modi- hibits any person to “take,” meaning “to harass, harm, pur- fcation regulation. sue, hunt, shoot, wound, kill, trap, capture, or collect, or to As Congressman John Jacob Rhodes, Jr. stated in 1982, attempt to engage in any such conduct,” any member of an “the potential societal benefts of weather modifcation are endangered species, without requiring proof of an interstate too great for us to ignore or to pursue it in piecemeal fashion. commercial nexus.165 Tis prohibition has even been broadly We need a better sense of national strategy.”158 Tis is why defned to extend to “habitat modifcation” that harms a there is a pressing need for federal action and national regula- listed plant or animal.166 Commerce Clause challenges to the tion of weather modifcation activities in order to minimize ESA have been consistently rejected in lower federal courts any of the adverse efects or issues, detailed above, that may and, so far, the Supreme Court has not granted certiorari in arise from such operations, while still enjoying its benefts. any of these cases.167 In light of this liberal construction of the Commerce IV. Enactment of the National Weather Clause, a court is likely to fnd that weather modifcation Modification Control Act activities undoubtedly have interstate efects and can thus be regulated by the Commerce Clause. For example, weather To address the under-regulation of weather modifcation, modifcation activities alter the composition of the atmo- Congress should enact, through its Commerce Clause power, sphere resulting in rain augmentation in one area to the pos- what I have titled the National Weather Modifcation Con- sible detriment of another, may cause extra rain, which can trol Act (“NWMCA”), which shall be implemented through then food a neighboring state, or may cause adverse efects a program of cooperative federalism between the states and in downwind areas as well as in target areas. the federal government. Furthermore, despite a longstanding understanding of the right of states to protect their natural resources, the U.S. A. Congress’ Power Under the Commerce Clause Supreme Court has invalidated the only state water law that has come before it in a challenge under the dormant Com- 168 Among the powers granted to Congress by the Constitu- merce Clause. In Sporhase v. Nebraska, the Supreme Court tion is the authority “to regulate Commerce with foreign invalidated a provision of Nebraska law that restricted the out- Nations, and among the several States, and with the Indian of-state transport of groundwater withdrawn from any well 169 Tribes.”159 Tis authority, under what is known as the Com- in Nebraska. In reaching its conclusion, the Court explic- merce Clause, is the basis for most environmental federal itly held that “water is an article of commerce” subject to fed- 170 statutes enacted by Congress beginning in the 1970s to pro- eral regulation. Te legacy of Sporhase retains precedential tect public health and the environment, including the Clean value for the premise that “state water resources are articles of 171 Air Act (“CAA”) and the Clean Water Act (“CWA”).160 Tese commerce, potentially subject to federal regulation.” Tis acts and the Supreme Court’s decisions involving the scope holding preserves the federal prerogative to regulate inter- of governmental authority to regulate the use of natural resources have been the result of, what commentators call, 162. Id. the “Environmental Commerce Clause.”161 Under the “Envi- 163. Timothy S. Bishop et al., Do Federal Environmental Laws Regulate Commerce?, 17 Nat. Resources & Env’t 7, 54 (2002). ronmental Commerce Clause,” Congress possesses overarch- 164. Id. ing authority over the states to federally regulate the use of 165. 16 U.S.C. § 1532(19) (2012). 166. Babbitt v. Sweet Home Chapter of Communities for a Great Or., 515 U.S. 687, 697 (1995). 167. Bishop et al., supra note 163, at 54; Greg Stohr, Endangered Species Act Survives Challenge at U.S. High Court, Bloomberg (Oct. 31, 2011), http://www. 155. Id. bloomberg.com/news/articles/2011-10-31/endangered-species-act-survives- 156. Id. challenge-at-u-s-high-court (“Te high court hasn’t taken up a commerce 157. See Weather Modifcation Law Developments, supra note 16, at 418; see also clause case since Chief Justice John Roberts took his seat in 2005.”). Oppenheimer, supra note 81, at 317. 168. See Sporhase v. Nebraska, 458 U.S. 941 (1982). Te dormant Commerce 158. Stanley A. Changnon, Jr. & W. Henry Lambright, Te Rise and Fall of Weather Clause doctrine “has long been understood to have a ‘negative’ aspect that Modifcation Policy, 19 J. Weather Modification 1, 10 (1987). denies the States the power unjustifably to discriminate against or burden the 159. U.S. Const. art. I, § 8, cl. 3. interstate fow of articles of commerce.” Klein, supra note 160, at 2. 160. See Christine A. Klein, Te Environmental Commerce Clause, 27 Harv. Envtl. 169. See Sporhase, 458 U.S. at 954. L. Rev. 1 (2003). 170. See id. at 943–54. 161. Id. 171. Klein, supra note 160, at 46. V. Conclusion may have across states’ borders. Furthermore, there is no cen- tralized governmental control of such a powerful technology, Te confuence of factors including climate change and a which has already been used in the past as a weapon in mili- practically inevitable freshwater crisis is a warning to political tary afairs. leaders in the United States to take action regarding weather For such reasons, Congress needs to act and, by the pow- modifcation regulation. Te western part of the United ers vested in it, enact the NWMCA, which will establish States, specifcally the state of California, and its territories, comprehensive federal regulation of weather modifcation such as Puerto Rico, have already felt the efects of intensifed activities. Such a national plan, with a lead agency, and a and persistent droughts, and scientists point to “future dry strong coordinated federal-state partnership will provide the spells” worsening as temperatures continue to rise.211 necessary tools for national regulation and control of weather With such pressing concerns across the U.S., weather modifcation operations, while reaping its benefts, such as modifcation, particularly cloud seeding, is gaining momen- freshwater augmentation and storm suppression. Given the tum as it is being more frequently used as a technology to critical environmental impacts of climate change felt in the help stave of water scarcity issues. Nevertheless, stagnated United States, the time is ripe for Congress to act and enact and weak state regulations across the United States do not the NWMCA. take into account the issues and efects that this technology

211. Gillis, supra note 10.

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