Ororo T’Challa, Career Criminal?

This month’s column was inspired by a question from Drew, who asks:

I am interested in hearing your thoughts on the legal ramifications of weather manipulation powers.

Based on past articles, I assume violent weather created to destroy (tornado, hurricane) would likely run into assault/murder/property damage/etc laws, what about simply weather reasonably possible for the time of year and location? 

This is an interesting set of questions for more reasons than one, as we shall see.

I. The Law of Weather Modification

Drew is correct that causing dangerous weather could lead to criminal or civil liability.  Even if the superhero (or villain) did not intend to cause harm, the dangers of severe weather are obvious enough that they could be liable under a negligence theory.

But what about something simple or even beneficial, such as causing a light rain to break a drought?  Surely that’s okay, right?  Actually, it turns out that there’s a federal law on this very subject: the National Weather Modification Policy Act of 1976, which has been codified at 15 U.S.C. §§ 300 et seq.  Although likely aimed at conventional technologies such as cloud seeding, the language of the Act is very broad:

No person may engage, or attempt to engage, in any weather modification activity in the United States unless he submits to the Secretary [of Commerce] such reports with respect thereto, in such form and containing such information, as the Secretary may by rule prescribe. The Secretary may require that such reports be submitted to him before, during, and after any such activity or attempt.

‘Weather modification’ is similarly broadly defined: “The term ‘weather modification’ means any activity performed with the intention of producing artificial changes in the composition, behavior, or dynamics of the atmosphere.”  Violations of the Act carry a fine of up to $10,000, which is fairly stiff, but there is no prison term.

Perhaps unsurprisingly, I was unable to find a single reported case of anyone actually being convicted under the Act, so all we have to go on is the text of the statute.  Nonetheless, the broad language suggests that Ororo T’Challa (née Munroe, aka Storm) has racked up a potentially massive fine over the years, as she frequently engages in activities with the intention of producing artificial changes in the behavior of the atmosphere.  Sometimes necessity could be a defense (e.g. when using her power to stop a villain), but many times necessity won’t cover it (e.g. controlling the air around her in order to fly).

That intent requirement is important, however.  For example, Superman once accidentally stopped the rain in India during the monsoon season.  Had that occurred in the United States it would not have violated the law, since it was an accidental result of Mr. Mxyzptlk’s magical powers.

As a (sometimes, sort-of) agent of the U.S. government, it’s possible that Thor has a blanket exemption from the Secretary of Commerce allowing him to use his power to control storms.

II. State Weather Modification Laws and Preemption

Many states also have weather modification statutes.  For example, of possible interest to Superman is the Kansas Weather Modification Act, which provides that “ No person may engage in any activity for weather modification or control without a weather modification license and a weather modification permit issued by the director.” K.S.A. § 82a-1406(a).  Doing so without a license is a class B misdemeanor, which carries a sentence of up to six months in jail.  K.S.A. §§ 82a-142321-4502(1)(b).

Given the significant overlap between the federal and state laws, it is possible that the federal law preempts the state laws.  Since the penalty for violating the state laws can be stiffer than the federal law, it would be in the interest of a defendant to argue for preemption.  The defendant would probably argue that the federal law implicitly preempts state weather modification laws under the theory of field preemption.  That is, the federal regulatory scheme demonstrates that Congress intended to “occupy the field” of weather modification regulation.

III. Conclusion

I was quite surprised to learn that there was a federal law regulating weather modification, especially one broadly written enough to encompass superhero abilities.  The situation is especially complicated given the patchwork of state weather modification statutes.  A travelling superhero could find it quite difficult to keep track of all of the required permits, reports, and licenses.  Federal preemption could greatly simplify matters, but weather manipulating heroes would still need to comply with the federal law.  On the plus side, since they cover attempted weather modification, these laws provide something to charge a supervillain with if he or she only manages to build a weather control machine but is stopped before he or she actually uses it.