Judge Baskin
Edited by Brett Banks, Sahith Mochalra, and Roohie Sheikh
From prayers to festivals calling upon a higher power, humans have tried to control the weather for centuries. The seasons and weather have always been notoriously difficult–and crucial–things to predict. Why else would Americans look to a groundhog for his take on the matter every February 2nd? However, weather modification, the practice of artificially manipulating precipitation, humidity, or wind speed, has become a more reliable science since the 1940s, with applicative methods becoming more standardized worldwide. These methods are increasingly being considered for use in the climate crisis due to their potential to address extreme weather events, such as drought relief and mitigating hurricanes. Though modern weather modification is incredibly promising, the practice has not been mentioned in a federal policy since the National Weather Modification Policy Act of 1976, a preliminary law that minimally regulated these significant modifications [1]. The Biden administration’s passing of the Inflation Reduction Act marked the country’s most significant piece of climate legislation to date–pushing renewable energy practices and electric vehicles [2]. Yet, despite their potential large-scale ramifications, there is no federal regulation on weather modification. The US imperatively needs a national standard for how these methods should be used and what happens when those rules are broken.
Most modern weather modification happens via cloud-seeding: the contemporary rain-dance. The method includes spreading man-made condensation nuclei, usually silver iodide, in the clouds [3]. These particles give water vapor a platform to land on and converge, forming more rain droplets or ice crystals than would otherwise occur. The standard practice was established in 1948 by General Electric scientist Bernard Vonnegut (older brother of author Kurt Vonnegut), who found that silver iodide was the most effective seeding substance compared to the previously used dry ice [4]. Though unchanging in its mechanization, cloud-seeding can yield completely different results depending on the context in which it is used. For example, cloud-seeding can bring extra rainfall during droughts, disperse clouds and fog, or, by over-seeding the clouds, can suppress hail damage by making condensation compete for ice crystals.
Though weather modification has so many consequences and causes controversy, few cases address this topic. The first instance of a weather modification-related lawsuit in the US was in San Diego in 1917. During a historic drought for the city, Charley Hatfield told city officials he could make it rain and would do it for $10,000 [5]. The city agreed. Hatfield was reported to have used an early version of Vonnegut’s method, releasing some kind of gas into the clouds from the ground. The city soon saw torrential rains, creating massive flooding issues and causing enormous damage to homes and infrastructure. Now Hatfield was in a Catch-22: take responsibility for the rain to cash his check, or sit out on the payday and avoid being held liable for the damage. He chose the latter but attempted to sue for the money regardless. Though parts of it feel like legend, Hatfield v. San Diego illustrates a common problem of causality in weather modification. There is no reasonable way for a person to prove that a cloud-seeding operation was effective in hindsight. Furthermore, proving the degree of the modification’s effects is even more challenging. Because there is no specific policy or criminal law regarding cloud-seeding at this time, all of the case law derives from more minor civil suits. Therefore, the standard for liability is much lower than criminal ones, being “preponderance of the evidence” rather than “beyond a reasonable doubt” [6]. However, despite this lower standard of guilt, there are few paths to holding weather modifiers accountable because of the difficulty in proving cause and effect. Irving P. Krick, a famous “rainmaker” of the midcentury, was no stranger to this. Krick was often sued for his work’s potential externalities, with plaintiffs often suing for damages from major rainfall events. In both Samples v. Irving P. Krick Inc. (1954) and Reinbold v. Irving P. Krick Inc. (1974), the juries found that the plaintiffs could not prove causation [7][8]. Proving legal cause for a change in weather is extraordinarily difficult. How would a jury reasonably decide that a flash of rain was actually a result of cloud seeding, especially with weather modification methods being so unproven at the time? There is no clear answer, even with today’s technology. As seen in both Krick decisions, a jury’s conventional wisdom leads them to call the downpour a fluke and give the “rainmaker” the benefit of the doubt. Additionally, though most of the cases are municipal, these decisions are not a regional pattern. The Samples case was in El Reno, Oklahoma, while the Reinbold case was in Caro, Michigan. Without a jury being 51% confident that the modifier caused the damage rather than a typical spike in precipitation, it is almost impossible for the alleged modifier to be held liable.
Weather modification litigation is further complicated by how the courts think about the sky. Early cases on the topic saw juries lean more towards treating the sky the same as the ground [9]. Applying the standard tropes of property law to the space above and below (mineral rights) a person’s land makes sense at initial scrutiny. A court would likely find the modifier liable if a person somehow modified the ground beneath someone’s home. The soil beneath a property does not change, and neither does the airspace above it. However, these weather modifications involve air rather than airspace. Compare the air above a person’s property to a bird. The bird will come and go above the land, the same as the clouds, but it would be wrong to say that the landowner can lay claim to that bird, the same as any animals that roam on the ground. This shift in perspective is precisely what US juries experienced in the 1950s [10]. From then on, the general court assumption and philosophy was that the sky belongs to everyone. Once the air is established as fair game, competing interests in the public make deciding what to do to the sky all the more impossible. A farmer or fisherman might want weather modifications to add extra precipitation, but the music festival attendees and resort owners will not.
The current statutory policy around weather modification in the US is generally insufficient in addressing any of these dilemmas given the lack of legislation and case precedent. Section 330a of the National Weather Modification Policy Act of 1976 requires that people engaging in weather modification efforts report their plans to do so 10 days before and after their operations [11]. The act also gives the Secretary of Commerce the authority to oversee modification projects and gives them discretion in managing those projects. However, those are the only federal-level regulations on weather modifications. Due to the lack of federal oversight or standardization in policy, states call many of the shots themselves. States like Nevada limit a lot of their weather modification to education and research [12]. Colorado requires modifiers to apply for permits that last for five years and give the state a 45-day warning instead of the federal minimum of 10 days [13]. Texas’s policies are seemingly the most thorough, with their Agriculture Code Chapter 301 comprehensively regulating the practice [14]. There, citizens can file complaints with the state in regard to modification projects. Then, the Texas Department of Licensing and Regulation will levy fines on modifiers that overstep their license’s agreed terms. Additionally, both Texas and Colorado’s policies stand out as being particularly extensive due to their consideration of causality. When individuals or companies sign their permits or licenses, they undertake a certain agreed-upon level of liability for their operation. Though proving cause and effect after the fact is still difficult, these policies help mitigate the abuse of the modifier’s advantage in the civil sphere. Further, the licensing departments can police the operations before they happen, making sure that frivolous weather modifications are less likely.
As for global policy, the focus is mostly on military use. The US government was the first to jump at the significant potential of widespread weather modifications. For military action, war efforts can greatly benefit from variations of cloud-seeding. During the Vietnam War, the US ran a secret program named Operation Popeye [15]. From 1967 to 1972, the Air Force flew cloud-seeding planes throughout North Vietnam and Southern Laos. The goal of the initiative was to produce significant amounts of extra rainfall and effectively extend the monsoon season in North Vietnam; thereby making the supply trails muddy and harder to navigate–cutting off arms and relief deliveries. While in progress, Operation Popeye was reported to have extended the monsoon season in North Vietnam by at least a month [16]. After the confidential program was leaked and the war ended, the UN pushed to regulate these practices and passed the Environmental Modification Convention (ENMOD) [17]. The treaty, which the US signed, bans the use of environmental or weather modifications as weapons in war. The UN draws the line at modifications that create “widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State party.” The trouble is in the treaty’s vagueness as each signed country interprets that regulation differently [18]. South Korea, for example, views breaking a man-made dam and causing a flood as unacceptable, whereas the US does not. Despite the inconsistency, the UN’s enforcement-less policy sets a solid base for preventing unethical projects like Operation Popeye. However, the US lacks a domestic legislation equivalent for growing weather modification possibilities.
Though the Trump administration is unlikely to push for much environmental policy, weather modification should be considered when making the next large-scale federal climate policy. As they stand, the national requirements and regulations are insufficient in protecting rainmakers from liability, citizens from the dangers of unregulated weather modifications, and the public from climate crises.
[1] S. 3383, National Weather Modification Policy Act of 1976, 94th Cong. (1976).
[2] H.R. 5376, Inflation Reduction Act of 2022, 117th Cong. (2022).
[3] Elyse DeFranco, Making It Snow: A Brief History and Review of the Science Behind Cloud-Seeding, DRI (Mar. 15, 2023), https://www.dri.edu/making-it-snow/ (last visited Jan 17, 2025).
[4] Bernard Vonnegut, https://www.atmos.albany.edu/daes/bvonn/bvonnegut.html(last visited Jan 17, 2025).
[5] Thomas W. Patterson, Hatfield the Rainmaker, Winter 1970, Volume 16, Number 1, The Journal of San Diego History.
[6] civil liability, LII / Legal Information Institute, https://www.law.cornell.edu/wex/civil_liability (last visited Jan 17, 2025).
[7] Samples v. Irving P. Krick, Inc. Civ. Nos. 6212, 6223, and 6224, W.D. Okla., 1954.
[8] Mirfendereski, Guive & Guive Mirfendereski, An International Law of Weather Modification, 2 Fletcher F. 41 (1978), https://www.jstor.org/stable/45331033.
[9] See [8], Mirfendereski, Guive & Guive Mirfendereski, An International Law of Weather Modification, 2 Fletcher F. 41 (1978), https://www.jstor.org/stable/45331033.
[10] Barry Coble, Benign Weather Modification , Mar., 1997, https://media.defense.gov/2017/Dec/28/2001861722/-1/-1/0/T_COBLE_BENIGN_WEATHER_MODIFICATION.PDF.
[11] See [1], S. 3383, National Weather Modification Policy Act of 1976, § 330a, 94th Cong. (1976). https://www.congress.gov/bill/94th-congress/senate-bill/3383/text
[12] What is Cloud Seeding?, DRI, https://www.dri.edu/cloud-seeding-program/what-is-cloud-seeding/ (last visited Jan 17, 2025).
[13] Weather Modification Program | DNR CWCB, https://cwcb.colorado.gov/focus-areas/supply/weather-modification-program#:~:text=There%20are%20many%20types%20of,hail%20suppression%20and%20hail%20cannons. (last visited Jan 17, 2025).
[14] Tex. Agriculture Code, Chapter 301, 78th Leg., (Sept. 1, 2003).
[15] Historical Documents - Office of the Historian, https://history.state.gov/historicaldocuments/frus1964-68v28/d274 (last visited Jan 17, 2025).
[16] Susan Borowski, Despite Past Failures, Weather Modification Endures, American Association for the Advancement of Science, Dec., 2012. https://www.aaas.org/taxonomy/term/10/despite-past-failures-weather-modification-endures#:~:text=From%20March%201967%20to%20July,by%2030%20to%2045%20days.
[17] 26.1. Convention on the prohibition of military or any other hostile use of environmental modification technique, New York, 10 December 1976., Ch_XXVI_1, VOL-2, Chapter XXVI. DISARMAMENT,
[18] Brendan Woodruff, When it Rains, it Pours: Weather Modification Law in the United States and a Proposal for Federal Control, 41 Pace Envtl. L. Rev. 406 ()
Available at: https://digitalcommons.pace.edu/pelr/vol41/iss3/3
Comments