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698 (2020) 37 EPLJ 698
Enhancing the Weather: Governance of Weather
Modication Activities in Australia
Manon Simon, Kerryn Brent, Jan McDonald and Jeff McGee*
Weather modication by cloud seeding refers to technologies intended to
manipulate the weather at a local scale. Over the last 70 years, Australia has
played a leading role in cloud seeding research and development. Australian
States have developed frameworks to promote opportunities and manage
risks from cloud seeding. Weather modication governance was studied
in the United States context, but there has been little consideration to date
for Australian frameworks. This article provides a contemporary analysis of
the weather modication governance in Australia and assesses the extent
to which legal and policy frameworks meet future governance challenges.
We analyse the cloud seeding experience in Victoria, New South Wales and
Tasmania, and identify common features in their governance arrangements.
We then point out gaps in current regulatory frameworks and call for a
reconsideration of cloud seeding governance in Australia.
I. INTRODUCTION
On 5 June 2016, an extreme rainfall event in Tasmania’s Central Highlands resulted in a major ooding
that killed three people and caused signicant damage to livestock, property and infrastructure.1 Earlier
the same day, Tasmania’s commercial producer of hydroelectricity, Hydro Tasmania, had conducted
a cloud seeding operation in the area.2 Cloud seeding is a form of weather modication, in which
silver iodide, or some other seeding agent, is delivered into the atmosphere to stimulate or enhance
precipitation.3 The purpose of this cloud seeding operation was to enhance precipitation over the Upper
Derwent catchment, which was at record low storage capacity following months of drought.4 Within
days, local communities and media questioned whether the seeding operation had increased the severity
of the ooding.5 An independent review found that the cloud seeding operation did not contribute to the
ood,6 but Hydro Tasmania nonetheless suspended its cloud seeding program.7
Australia’s interest in cloud seeding stems from the prevalence and severity of droughts across the
country.8 Cloud seeding was rst developed in 1946 by American scientists working for General Electric
*Manon Simon: PhD Candidate,Faculty of Law,University of Tasmania. Kerryn Brent: Lecturer; School of Law,University of
Adelaide. Jan McDonald: Professor; Facultyof Lawand Centre for Marine Socioecology,University of Tasmania. Jeff McGee:
Associate Professor; Faculty of Law and Institute forMarine and AntarcticStudies,University of Tasmania.
1Will Ockenden, “Hydro Tasmania Asked to Explain Cloud Seeding in Catchment Day before Flooding”, ABC News, 6 June 2016
<https://www.abc.net.au/news/2016-06-10/cloud-seeding-carried-out-over-tasmanian-catchment-before-oods/7499226>.
2Ockenden, n 1, 1.
3See generally Andrea I Flossmann et al, Peer Review Report on Global Precipitation Enhancement Activities (2018).
4Mike Blake, Report of the Independent Review into the Tasmanian Floods of June and July 2016 (Report, 1 June 2017).
5See, eg, Ockenden, n 1, 1; Adam Morton, “Did a Cloud-Seeding Flight on Sunday Deepen Tasmania’s Flood Crisis?”, The Sydney
Morning Herald, 10 June 2016 <https://www.smh.com.au/national/did-a-cloudseeding-ight-on-sunday-deepen-tasmanias-ood-
crisis-20160610-gpgk0q.html>.
6Ellen Coulter, “Tasmnia Weather: Hydro Report Finds Cloud Seeding Did Not Cause Derwent Valley Floods”, ABC News, 29
July 2016 <https://www.abc.net.au/news/2016-07-29/hydro-report-nds-cloudseeding-had-no-effect-on-ooding/7673726>.
7Hydro Tasmania, Cloud Seeding <https://www.hydro.com.au/water/rainfall/cloud-seeding>.
8Brian F Ryan and Warren D King, “A Critical Review of the Australian Experience in Cloud Seeding” (1997) 78(2) Bulletin of
the American Meteorological Society 243.
Enhancing the Weather: Governance of Weather Modication Activities in Australia
(2020) 37 EPLJ 698 699
(GE).9 Australia started experimenting with cloud seeding soon after, and became a pioneer in weather
modication research and development.10 Over the years, all Australian States have engaged in cloud
seeding research, development and deployment for water management and hydroelectricity production.
In order to support both experimental and operational programs, some of them have developed
regulatory regimes for cloud seeding, including legislation.11 Despite Australia’s long history of cloud
seeding, the 2016 Tasmanian incident suggests that there are still concerns regarding the management
of risks for these technologies. These justify some reconsideration of current governance approaches.
An extensive literature has emerged on weather modication governance issues in the United States,12
but the governance of cloud seeding in Australia has received virtually no academic scrutiny since the
1970s.13 This articletherefore evaluates current governance frameworks for weather modication by
cloud seeding in Australia, in orderto determine their tness-for-purpose for governing an expanded
program of weather modication.
In 2016, researchers, scientists and engineers from the Sydney Institute of Marine Science and the
School of Geosciences at the University of Sydney created a collaboration to develop “marine cloud
brightening for the Great Barrier Reef”.14 Marine cloud brightening (MCB) belongs to a broader category
of climate engineering techniques, referred to as solar radiation management, that have been proposed to
counteract the effects of anthropogenic climate change.15 MCB is analogous to traditional cloud seeding.
However, instead of enhancing rainfall, MCB involves seeding certain marine clouds with salt particles
that reect solar radiation, to increase the brightness and longevity of the cloud cover and reduce global
temperatures.16 Australian government authorities and scientists are developing MCB technologies as
part of the Reef Restoration and Adaptation Program (RRAP) to shade the reef and protect it from
climate change stressors.17 MCB research has progressed from modelling to outdoor experimentation,
with the Great Barrier Reef Marine Park Authority authorising a small-scale eld test on the reef in
March 2020.18
MCB and weather modication by cloud seeding bear many similarities. At the most fundamental
level, both technologies aim to manipulate the formation and physical properties of clouds. There is
also considerable uncertainty as to the effectiveness of MCB and the potential risks and environmental
side effects that could result.19 Currently, MCB is not specically regulated under existing Australian
9Hydro Tasmania, n 7.
10Ray Jay Davis, “Atmospheric Water Resources Development and International Law” (1991) 31 Natural Resources Journal 20.
11See, eg, Rain-Making Control Act 1967 (Vic); Snowy Mountains Cloud Seeding Act (No 19) 2004 (NSW).
12See, eg, Vaughn C Ball, “Shaping the Law of Weather Control” (1949) 58(2) The Yale Law Journal 213; Ray Jay Davis, “Weather
Modication Law Developments” (1974) 27 Oklahoma Law Review 409; Stanley A Changnon, “The Rise and Fall of Federal
Weather Modication Policy” (1987) 19(1) The Journal of Weather Modication 12; Gregory N Jones, “Weather Modication: The
Continuing Search for Rights and Liabilities” [1991] Brigham University Law Review 38; Melissa Currier, “Rain, Rain, Don’t Go
Away: Cloud Seeding Governance in the United States and a Proposal for Federal Regulation” (2017) 48 McGeorge Law Review 26.
13GN Heilbronn, “Some Legal Consequences of Weather Modication: An Uncertain Forecast” (1979) 6 Monash University Law
Review 122; Ray Jay Davis, “The Law of Precipitation Enhancement in Victoria” (1972) 7 Land & Water Law Review 31.
14Marine Cloud Brightening for the Great Barrier Reef <https://www.savingthegreatbarrierreef.org>.
15John G Shepherd, Geoengineering the Climate: Science, Governance and Uncertainty (Royal Society, 2009).
16For a general overview of MCB, see Philip Boyd et al, High Level Review of a Wide Range of Proposed Marine Geoengineering
Techniques <http://www.gesamp.org/publications/high-level-review-of-a-wide-range-of-proposed-marine-geoengineering-
techniques>. For a technical summary of proposals for the GBR, see LK Bay et al, Reef Restoration and Adaptation Program:
Intervention Technical Summary. A Report Provided to the Australian Government by the Reef Restoration and Adaptation
Program (2019) <https://www.gbrrestoration.org/documents/20182/20686/T3+Intervention+Technical+Summary+FINAL3.pdf/
d9c067d8-38bd-46e7-95d6-efce8682af04>.
17Reef Restoration and Adaptation Program – Home <https://www.gbrrestoration.org/>. See also Jan McDonald et al, “Governing
Geoengineering Research for the Great Barrier Reef” (2019) 19(7) Climate Policy 801.
18Graham Readfearn, “Scientists Trial Cloud Brightening Equipment to Shade and Cool Great Barrier Reef”, The Guardian, 16
April 2020 <https://www.theguardian.com/environment/2020/apr/17/scientists-trial-cloud-brightening-equipment-to-shade-and-
cool-great-barrier-reef>.
19Boyd et al, n 16, 73–74.
Simon et al
700 (2020) 37 EPLJ 698
law.20 It is instead regulated incidentally by the patchwork of environmental legislation and
regulationsthat govern activities affecting the Great Barrier Reef. The RRAP aims to develop new
governance mechanisms for climate change interventions on the reef, including for MCB.21 However,
discussions on climate engineeringgovernance have largely avoided considering the lessons that might
be drawn from earlier governance of weather modication techniques. With Australia embarking on
a new chapterof cloud seeding research and development, it is pertinent to reect on the governance
of weather modication in Australia.22 It is beyond the scope of this articleto assess the extent to
which the governance of weather modication by cloud seeding offers a valuable precedent for the
governance of MCB. However, it is this contextual background that largely motivates the present
evaluation of Australia’s cloud seeding regulatory frameworks.
This article proceeds in ve parts. Part II explains cloud seeding technologies and associated risks.
Part III outlines the history of cloud seeding research and deployment in Australia, providing the
necessary context for the development of law and governance. PartIV presents the different approaches
to cloud seeding governance in the three jurisdictions that have been most active users of the technology:
Victoria, Tasmania and New South Wales (NSW). Drawing on this analysis, PartV identies common
features to weather modication governance and issues that require renewed attention. We conclude in
PartVI that, in the event when Australia moves forward with MCB by cloud seeding, future regulatory
frameworks will have to avoid the pitfalls that have fraught weather modication governance.
II. WEATHER MODIFICATION BY CLOUD SEEDING
Precipitation enhancement by cloud seeding refers to a deliberate human intervention in the atmosphere
to enhance the volume of rainfall. In 1946, the process of “cloud seeding” was developed by American
scientists working for GE, under the supervision of the Nobel Prize Laureate, Irving Langmuir.23
They discovered that adding substances such as dry ice and silver iodide to certain types of clouds
could encourage the formation of ice crystals and thereby initiate or enhance precipitation.24 Later on,
scientists also developed cloud seeding techniques using salt particles, that enhance the formation of
water droplets in warm clouds, more suited to cloud seeding in tropical and semi-tropical regions.25
Following GE’s discovery, national governments were quick to realise the promise of cloud seeding.
Between the 1950s and 1970s, several countries, including the United States, Soviet Union, Canada,
and Australia, invested heavily in cloud seeding research and development.26 Their aim was to use
cloud seeding to mitigate extreme weather events and enhance precipitation for agricultural and hydro-
electricity production.27
Cloud seeding continues to be widely practised around the world, and its use is likely to increase. Over
50 countries currently use cloud seeding, with major projects conducted in China, the United States,
20See Pedro Fidelman et al, “Regulatory Implications of Coral Reef Restoration and Adaptation under a Changing Climate” (2019)
100 Environmental Science & Policy 221.
21 Pedro Fidelman et al, Reef Restoration and Adaptation Program: Regulatory Assessment Findings. A Report Provided
to the Australian Government by the Reef Restoration and Adaptation Program (2019) <https://www.gbrrestoration.org/
documents/20182/20686/T2+Regulatory+Assessment+Findings3.pdf/d9c57969-3d36-479e-867c-e10e8ebc68af>.
22See, eg, C2G, Putting the Great Barrier Reef Marine Cloud Brightening Experiment into Context (13 May 2020) <https://www.
c2g2.net/putting-the-great-barrier-reef-marine-cloud-brightening-experiment-into-context/>.
23Irving Langmuir, “The Production of Rain by a Chain Reaction in Cumulus Clouds at Temperatures above Freezing” (1948)
5(5) Journal of Meteorology 175.
24 See generally Vincent J Schaefer, “The Early History of Weather Modication” (1968) 49(4) Bulletin of the American
Meteorological Society 337.
25Flossmann et al, n 3, 1; William RCotton and Roger A Pielke Sr, Human Impacts on Weather and Climate (CUP, 2007) 32–33.
26HowardJ Taubenfeld, “Weather Modication and Control: Some International Legal Implications” (1967) 55(2) California Law
Review 494.
27Steven T Sonka, Economics of Weather Modication: A Review (Illinois State Water Survey, 1979) 1.
Enhancing the Weather: Governance of Weather Modication Activities in Australia
(2020) 37 EPLJ 698 701
Thailand and India notably.28 In recent years, there has been renewed interest in cloud seeding to address
climate change impacts. As noted by Flossman et al:
In a period of accelerating climate change, the continuous struggle for reliable water resources has taken
renewed urgency. There are indications that an increasingly number of WMO [World Meteorological
Organisation] Members are planning or actually carrying out precipitation enhancement activities in
response to water shortages or other societal needs.29
Despite its widespread use over the past 70 years, the effectiveness of cloud seeding is still uncertain.
Atmospheric processes are complex and subject to large natural variability. Therefore, measuring the
effectiveness of cloud seeding is extremely complex.30 Because all clouds are unique, scientists cannot
attribute precisely a certain volume of rainfall to a specic operation by comparing cloud formations at a
different place or time.31 At best, operations are randomised, which means that potentially suitable clouds
are seeded on a random basis so as to compare seeded and unseeded events.32 This statistical analysis
is then combined to physical analyses (ie rain gauges, radars) to estimate the potential for seeding in
one area.33 In recent years, the development of modelling and remote sensing tools has enabled better
estimations of cloud seeding effects on precipitation.34 Scientists have demonstrated that precipitation
enhancement by cloud seeding can lead, under specic conditions, to an increase in precipitation.35
As well as questions of effectiveness, cloud seeding raises environmental, social and economic concerns.
Silver iodide, one of the most commonly used chemicals, may have long-term environmental effects.
According to Fajardo et al, silver iodide may have accumulative properties and, in high concentrations,
create risks of ecotoxicity for soil biota both in terrestrial and aquatic environments.36 In contrast, the
Weather Modication Association suggests that the amounts of silver iodide used in cloud seeding are
too small to affect human health or the environment.37 The World Meteorological Organization (WMO),
nevertheless, warns of potential persistent effects and recommends monitoring closely the impacts of
cloud seeding agents on the environment.38
A further concern is that continued cloud seeding operations may change precipitation averages over
time.39 This could have detrimental effects on weather systems, land structures, plants and animal
communities.40 According to Bigg, silver iodide may remain in the atmosphere for weeks or even
months, and continue to affect regional rainfall over a wider area and longer timeframe than originally
28WMO, WMO Statement on Weather Modication (Report from Expert Team on Weather Modication Research for 2015, 17
March 2015) (Statement on Weather Modication).
29Flossmann et al, n 3, 77.
30“The complexity and natural variability of clouds result in signicant challenges and difculties in understanding and detecting
the effects of attempts to modify them articially.” WMO, n 28, 5.
31 “[E]xcept in rare and nearly unique instances, every storm is different from all others. To compare one with another is a
frustrating exercise and one that is bound to fail.” Vincent Schaefer, “The Future of Weather Modication” (1976) 8(2) The Journal
of Weather Modication 127.
32WMO, n 28, 5–6.
33WMO, n 28, 6.
34WMO, n 28, 5.
35Flossmann et al, n 3, 2.
36See especially C Fajardo et al, “Potential Risk of Acute Toxicity Induced by AgI Cloud Seeding on Soil and Freshwater Biota”
(2016) 133 Ecotoxicology and Environmental Safety 433. See also Bruce D Williams and John A Denholm, “An Assessment of the
Environmental Toxicity of Silver Iodide – With Reference to a Cloud Seeding Trial in the Snowy Mountains of Australia” (2009)
41 Scientic Papers 22.
37Weather Modication Association, Position Statement on the Environmental Impact of Using Silver Iodide as a Cloud Seeding
Agent (July 2009).
38“[A]ny plans to use either a massive quantity of such a product or a different seeding agent should be accompanied with a
preliminary evaluation of its potential effects on environment and on human health.” WMO, n 28, 2.
39AK Wills and Queensland, Effects of Weather Modication on the Australian Environment (Divisionof Land Utilisation &
Queensland, Department of Primary Industries, 1973) 8.
40See generally Charles F Cooper, Ecological Effects of Weather Modication: A Problem Analysis (University of Michigan,
Department of Resource Planning and Conservation, 1969).
Simon et al
702 (2020) 37 EPLJ 698
anticipated.41 Scientists may therefore underestimate the duration and scale of the impacts of cloud
seeding activities.
A related issue is the extent to which cloud seeding may have impacts on areas adjacent to the intended
target area. For example, there have traditionally been concerns that by increasing rainfall in one area, cloud
seeding may deprive downwind areas of their natural precipitation.42 This could lead to transboundary
issues between States in federalised legal systems (ie United States or Australia) or between nation-states
if cloud seeding is conducted near national borders.43 The impacts of cloud seeding beyond the target area
are still unclear, notably whether these “extra-area effects” decrease or increase precipitation.44 Flossman
et al suggest that a poorly designed project could reduce precipitation or prevent the precipitation process
altogether,45 thereby depriving neighbouring areas of rainfall. Conversely, DeFelice et al suggest that cloud
seeding activities could increase the amount of precipitation up to 200 kilometres from the target area.46
Such an increase could harm a neighbouring area, especially if it increases the risk of oods.47 In the United
States, several cases have been brought against cloud seeding operators for allegedly causing oods, but
in each case, the plaintiffs failed to establish a causal link between a particular operation and the ood.48
Studies have demonstrated that, in absence atmospheric moisture, cloud seeding operations are likely to
be unsuccessful.49 Therefore, cloud seeding is not an adequate emergency response in times of drought
and more typically used as a “long-term water resources management tool”.50 In recent years, cloud
seeding projects have been upscaled to catchment basin-size projects to increase freshwater reservoirs
in key locations.51 However, the uncertainties concerning the impacts and effectiveness of cloud seeding
suggest the need for long-term monitoring and evaluation,52 including through appropriate governance
arrangements to manage risks and uncertainties. The next sectionoutlines the use of cloud seeding
technologies in Australia, in orderto evaluate the adequacy of governance arrangements.
III. WEATHER MODIFICATION OPERATIONS IN AUSTRALIA
A. Introduction
Australia is one of the driest countries on earth, with the lowest average annual rainfall of any inhabited
continent.53 It is therefore unsurprising that Australia has used cloud seeding to enhance precipitation.
41E Keith Bigg, “Unexpected Effects of Cloud Seeding with Silver Iodide” (2012) 17(1) The Journal of Weather Modication 7.
42Davis, n 10, 35.
43See generally Taubenfeld, n 26; Ray Jay Davis, “The United States and Mexico: Weather Technology, Water Resources and
International Law” (1972) 12(4) Natural Resources Journal 16; JW Samuels, “International Control of Weather Modication
Activities: Peril or Policy” (1973) 12 Natural Resources Journal 17; Lada L Roslycky, “Weather Modication Operations with
Transboundary Effects: The Technology, the Activities and the Rules” (2003) 16 Hague Yearbook of International Law 3.
44Flossmann et al, n 3, 30.
45Flossmann et al, n 3, 31.
46TP DeFelice et al, “Extra Area Effects of Cloud Seeding – An Updated Assessment” (2014) 135 Atmospheric Research 193.
47“The major risks are the possibility of creating severe weather or oods, and to increasing rainfall in one local region at the
expense of rainfall in a neighboring local region.” Cotton and Pielke Sr, n 25, 250.
48See, eg, Samplesv IrvingP Krick Inc (WD Okla, 1954); Auvil Orchard Co Incv Weather Modication Inc (Sup Ct, Wash, 1956);
Adamsv California (Sup Ct, Calif, 1964); Lunsfordv US, 418 F Supp 1045 (DS Dak, 1976).
49“Instant drought relief is difcult to achieve. In particular, if there are no clouds, precipitation cannot be articially stimulated.
It is likely that the opportunities for precipitation enhancement will be greater during periods of normal or above normal rainfall
than during dry periods.” WMO, n 28, 4.
50“[I]n orderto be benecial in the context of an overall water shortage, the seeding needs to be extended to larger areas and time
periods.” Flossmann et al, n 3, 78. See also Roelof Bruintjes, Report of the Expert Team on Weather Modication Meeting (Report,
17–19 March 2015) 3.
51Flossmann et al, n 3, 61–76.
52 “The implications of any projected long-term weather modication operation on ecosystems need to be assessed.” WMO,
n 28, 12.
53Paul N Holper, Climate Change, Science Information Paper: Australian Rainfall: Past, Present and Future (CSIRO, 2011) 46.
Enhancing the Weather: Governance of Weather Modication Activities in Australia
(2020) 37 EPLJ 698 703
Two days after GE’s rst outdoor experiments were conducted in the United States, in 1947, the Australian
House of Representatives requested the Commonwealth Scientic and Industrial Research Organisation
(CSIRO)54 to conduct its own research on cloud seeding.55 The rst CSIRO experiment, conducted in
New South Wales, was also the rst experiment in the world to trigger rain successfully.56 Between 1947
and 1952, over 100 cloud seeding experiments were conducted in New South Wales, using dry ice or
silver iodide as a seeding agent.57 With CSIRO’s assistance, State agriculture, public works and water
resources departments also conducted cloud seeding experiments to investigate practical applications of
cloud seeding.58 In 1965, New South Wales became the rst Australian State to conduct an operational
program.59
Figure 1 summarises the major research and deployment cloud seeding programs conducted in Australia
from 1947 to 2020. Research operations are represented in light grey, whereas operational programs are
shaded in darkgrey, and the entity conducting each project is indicated between parentheses.
FIGURE 1. Overview of Australian major cloud seeding experiments.
54Australia’s national science agency established by the Science and Industry Research Act 1949 (Cth).
55EB Kraus andP Squires, “Experiments on the Stimulation of Clouds to Produce Rain” (1947) 159(4041) Nature 489. See
Geoffrey Reid McBoyle, Weather Modication: Australia’s Role in the World Scene (Department of Geography, University of
Queensland, 1980) 48.
56Davis, n 13, 3.
57McBoyle, n 55, 48.
58For an overview of the cloud seeding experiments between 1947 and 1994, see Ryan and King, n 8.
59McBoyle, n 55, 68–81.
Simon et al
704 (2020) 37 EPLJ 698
The gure shows that the number of cloud seeding programs in Australia has decreased over time. The
research programs conducted throughout Australia between the 1950s and 1980s had limited success in
increasing rainfall demonstrably.60 Scientists formed the opinion that most cloud formations in Australia
were not cold enough to be suitable for seeding.61 The results of cloud seeding were consistently
inconclusive and the costs of research and development outweighed the benets.62 Therefore, in 1981,
CSIRO terminated its cloud seeding research program,63 and water managers in Australia largely
considered cloud seeding a “marginal water-management tool”.64
Tasmania, however, has been an exception to the downward trend in cloud seeding. According to Hydro
Tasmania, “of all of the areas in the world, evidence for [cloud seeding] effectiveness is strongest in
Western Tasmania”.65 Before the 2016 ood incident, Hydro Tasmania had carried out the longest
program in the country, spanning four decades. More recently, with climate change straining water
resources around the country, other Australian States have shown a renewed interest in cloud seeding.
New South Wales is now conducting a long-term program in the Snowy Mountains, and Australia
continues to receive international scientic attention for its research and development activities.66
Efforts by government departments, CSIRO and State-owned enterprises to develop cloud seeding have
led States to develop various governance approaches to cloud seeding. Yet, in 1979, Heilbronn remarked
that “[w]hile scientic undertakings in this area have for many years been carried out in Australia, there
has been virtually no discussion here of the legal questions involved.”67 In the ensuing forty years, legal
scholars have not remedied this deciency and the role of law in Australia’s cloud seeding governance has
remained unaddressed. In spite of a decline in cloud seeding activities in Australia, continued research
in widening cloud seeding applications shows that the issue is still relevant.
The most active cloud seeding States in Australia have historically been Victoria, Tasmania and New
South Wales. The following sectionsexamine the different approaches that these States have taken to
regulating cloud seeding activities from the advent of cloud seeding research in 1947 until June 2020.
1. Victoria
Victoria was the rst State in Australia to develop primary and subordinate legislation to govern cloud
seeding. Victoria’s rst cloud seeding program was commenced to address drought conditions in the
grain-growing region of Wimmera-Mallee, in 1957, but was suspended soon after as heavy rainfalls
naturally put an end to the drought.68 When the program resumed in 1966, the Victorian State government
considered developing legislation to regulate cloud seeding.69 The “Interdepartmental Committee on
Cloud Seeding in Victoria to Promote Rainfall”70 recommended that the Victorian government develop
60Only the experiment conducted between 1955 and 1959 over the Snowy Mountains had shown an increase in rainfall, but the
CSIRO casted doubts over the results of the experiment as interpreted by the Snowy Mountains Hydro-Electricity Authority
(SMHEA). See McBoyle, n 55, 63.
61McBoyle, n 55, 63.
62Parliament of Australia House of Representatives, Getting Water Right(s) the Future of Rural Australia, Chapter7 Research
& Development – Cloud Seeding; Climate Change; and Water Resources (Australia House Standing Committee on Agriculture,
Fisheries and Forestry, 2004) 154.
63Andrew Bell, “Why CSIRO Has Stopped Cloud-Seeding” (1982) 32 ECOS Magazine 23.
64Ryan and King, n 8, 247.
65Hydro Tasmania and West Coast Council, Effects of Cloud-Seeding on Rainfall in the West Coast: Background Report 1 (2008) 1.
66Between 2007 and 2009, for instance, the Queensland Climate Change Centre of Excellence (a State-owned research institute)
gathered researchers from Australia, the United States and South Africa to conduct the Queensland Cloud Seeding Research
Program (QCSRP) and investigated the potential for cloud seeding of Queensland summertime clouds. The QCSRP used some of
the best technology available (eg advanced remote sensing tools). See generally Sarah A Tessendorf et al, “Overview of Queensland
Cloud Seeding Research Program” (2010) 42(1) The Journal of Weather Modication 33. See also Bruintjes, n 50, 6.
67Heilbronn, n 13, 123.
68McBoyle, n 55, 71.
69Davis, n 13, 6.
70Davis, n 13, 6.
Enhancing the Weather: Governance of Weather Modication Activities in Australia
(2020) 37 EPLJ 698 705
legislation for cloud seeding “to control operations in the best interests of the community as a whole”
before any litigation should arise.71 Victoria enacted the Rain-Making Control Act 1967 (Vic) and the
Rain-Making Control Regulations1968 (Vic) to regulate cloud seeding activities and to make provisions
for any subsequent claims for damages against operators.72
The Rain-Making Control Act makes cloud seeding a governmental function and provides immunity
from liability.73 It provides that only Victoria’s Minister of Agriculture may authorise rain-making
operations and “shall issue his authority to some ofcer or body under his control to make arrangements
for carrying out those operations”.74 The Minister may also authorise operations in Victoria to promote
rainfall in an adjoining State at the request of a Minister administering a corresponding Act.75 Yet, no
other State has passed such legislation and the provision has never been used in practice.76 Operational
cloud seeding in Victoria has been principally funded by the Agricultural Aviation Section of the
Department of Agriculture, even though sometimes carried out on behalf of other departments (eg for
re prevention and water catchments replenishment).77 Victoria conducted some 15 operational projects
regulated under the Act between 1967 and 1980,78 thereby placing itself “at the forefront of the practical
application of rain-making”.79
Operations authorised by the Minister provides statutory immunity “in respect of any loss or damage
caused by or arising out of the precipitation of rain hail sleet snow ice fog or mist in consequence of the
rain-making operations so carried out”.80 Cloud seeding operations that are not authorised under the Act
incur a penalty at $1,000 or imprisonment for up to twelve months.81 In addition, the Minister retains the
power to require an operator to discontinue or refrain from commencing cloud seeding activities, with a
ne of up to $1000 for each day the operator continues the activities in contravention of the order.82 The
Act, however, provides no rulesfor potential interstate liability or remedies in case of conicts over the
allocation of interstate river waters (eg the Murray River).
The Act does not require environmental impact assessment (EIA) prior to approving cloud seeding
activities, and no EIA has been conducted under the Environmental Effects Act 1979 (Vic). In 1979,
Warracknabeal, Victoria, was shortlisted as the site for the Precipitation Enhancement Project (PEP),
an international research project conducted by the WMO.83 After Spain was selected for the project,
CSIRO and Victoria’s Department of Agriculture pursued a major research project at the same location.
McBoyle suggests that because the project was considered unlikely to involve signicant environmental
risks, no EIA was required.84 The Act also makes no provision for public participation. McBoyle notes
that “public meetings were scheduled for the project area in early 1979, but a favourable public response
to press releases put out by the Victoria Department of Agriculture prior to this led the CSIRO to dispense
71Interdepartmental Committee on Cloud Seeding in Victoria to Promote Rainfall, Report 9 (1967), quoted in Davis, n 13, 8.
72“An Act to regulate certain Rain-making and other Cloud-modication Processes, to make Provision with respect to Claims for
Damages against Persons lawfully engaged therein and for other purposes.” Rain-Making Control Act 1967 (Vic).
73Davis, n 13, 10.
74Rain-Making Control Act 1967 (Vic) s 4. This is consistent with the recommendation of the Committee. See Victoria,
Parliamentary Debates (Legislative Assembly, 1 November 1967) 1607.
75Rain-Making Control Act 1967 (Vic) s8.
76Rain-Making Control Act 1967 (Vic) s8.
77Davis, n 13, 10.
78McBoyle, n 55, 138.
79McBoyle, n 55, 71.
80Rain-Making Control Act 1967 (Vic) s12.
81Rain-Making Control Act 1967 (Vic) s9.
82Rain-Making Control Act 1967 (Vic) s11.
83McBoyle, n 55, 90–91.
84McBoyle, n 55, 150.
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706 (2020) 37 EPLJ 698
with any meetings.”85 The Act requires the operator to submit a report to the Minister of Agriculture “in
orderto ensure that adequate statistics are available to enable assessment of the operations to be made”.86
However, “[n]othing in the law requires ofcials of Victoria to report to CSIRO or any other central
depository of information about weather modication activities in Australia.”87
The Rain Making Control Act 1967 (Vic) remains in force and has been regularly amended to keep up
to date with legal reforms (eg Water Act 1989 (Vic), Conservation, Forests and Lands Act 1987 (Vic)
and Local Government Act 1989 (Vic)), despite there being no cloud seeding operation in Victoria since
1986,88 and no research project since 1992.89
2. Tasmania
Tasmania’s rst major research project was conducted between 1964 and 1971, by CSIRO and the
Hydro-Electricity Commission (HEC) (now Hydro Tasmania), to experiment with silver iodide seeding
over catchments in Tasmania’s Central Plateau (Tasmania I).90 These experiments yielded encouraging
results and another four-year experiment between 1979 and 1983 (Tasmania II) suggested an increase in
rainfall of up to 30%.91 The HEC conducted a third experiment between 1992 and 1994, this time using
dry ice, that yielded mixed results (Tasmania III).92 Nevertheless, the suitability of Tasmania’s weather
conditions and the hydropower high cost/benet ratio justied pursuing cloud seeding research.93 The
HEC launched a fourth research project in 1998 (Tasmania IV), which soon became fully operational.
Between 1998 and 2016, Hydro Tasmania seeded wintertime clouds on average 20 days per year, using
silver iodide.94 The map below shows Tasmania cloud seeding target areas as of 2008.95
85McBoyle, n 55, 92.
86Victoria, Parliamentary Debates (Legislative Assembly, 1 November 1967) 1609.
87Davis, n 13, 22.
88In 2016, a Freedom of Information (FOI) request was addressed to the Victoria Department of Economic Development, Jobs,
Transport and Resources for copies, notably, of all cloud seeding reports lodged under the Act on or after the 1st January 1986. FOI
– Notice of Decision (Ref 16/43939) <https://www.righttoknow.org.au/request/2671/response/7545/attach/3/16%2043939%20
Signed%20decision%20letter%20No%20docs.pdf>.
89Between 1988 and 1992, Melbourne Water – the government authority in charge of water supply – conducted a development
project in the BawBaw plateau. However, CSIRO considered that the statistical evidence of increased rainfalls did not justify
pursuing cloud seeding operations and Water Melbourne gave up its cloud seeding plans in the area. The experiment was not
regulated under the Act, most likely because the project was a research project as opposed to an operation per se. Nevertheless, the
project remained under governmental control. Ryan and King, n 8, 246.
90Ryan and King, n 8, 243.
91AJ Miller et al, “Analyzing the Results of a Cloud-Seeding Experiment in Tasmania” (1979) 8(10) Communications in Statistics-
Theory and Methods 1017.
92Ryan and King, n 8, 244.
93Ryan and King, n 8, 252.
94Steven T Siems and MichaelJ Manton, Recent Progress in Glaciogenic Cloud Seeding over Southeast Australia and Tasmania
(Monash University, 2011).
95Hydro Tasmania and West Coast Council, Economic Impacts of Cloud Seeding (2008) 3.
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MAP 1. Tasmania’s targeted cloud seeding catchment areas.
In Tasmania, the State government has used its executive power to allow Hydro Tasmania (a trading name
of the HEC) to conduct cloud seeding operations, but no legislation has ever been enacted to regulate
cloud seeding operations. Davis reports that the HEC had considered that such a legislation could hinder
its cloud seeding efforts.96 Operations did not operate in a legal vacuum; however, Hydro Tasmania
is subject to its own statutory requirements under the Hydro-Electric Corporation Act 1995 (Tas).97
In some circumstances, it is also subject to the environmental assessment and development approval
processes of the Land Use Planning and Approvals Act 1993 (Tas) and the Environmental Management
and Pollution Control Act 1994 (Tas), though neither has been applied to cloud seeding activities.
Hydro Tasmania follows a number of “self-governance” frameworks, including an “Environment
Policy” and a “Sustainability Code”.98 In addition, it operates under an Environmental Management
System (EMS) certied under the international standard ISO 14001.99 Under the EMS, for instance,
the HEC conducted an EIA for the Tasmania IV experiment.100 The EIA procedure was not regulated
96“The Commission had, however, earlier obtained legislation exempting it from being enjoined from carrying out its activities.”
Davis, n 13, 9.
97Minister for Energy and Resources and Treasurer, Hydro Tasmania Ministerial Charter (2012).
98Hydro Tasmania, Management Approach <https://www.hydro.com.au/about-us/our-governance/management-approach>.
99Hydro Tasmania, n 98.
100Hydro Tasmania and West Coast Council, n 65, 38.
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708 (2020) 37 EPLJ 698
by law and consisted of a literature review and three expert reports on the impacts of silver iodide, the
existence of persistence effects, and the downwind effects of cloud seeding.101 It concluded that the use
of silver iodide would have no adverse impacts on the environment, but recognised that the high natural
rainfall variability created uncertainties concerning persistent and downwind effects.102 Following this
assessment, the Tasmanian government authorised the HEC to launch an operational cloud seeding
program to supply the water catchments of Central Tasmania’s hydro-electric dam network. The target
area was increased by up to 5,000 square kilometres.
Before the 2016 ood, Hydro Tasmania’s cloud seeding activities had already given rise to controversy.
In 2006–2007, the West Coast Council reported negative impacts on the communities and a lack of trust
in the self-governance model. The public had not been involved in the decision-making process and
local populations started to question the transparency and legitimacy of the operations, and the merits
and impacts of cloud seeding.103 These concerns resulted in the suspension of the seeding over the King
River catchment and the preparation of a series of reports on effects and socio-economic impacts of
cloud seeding in the region.104
After the ood, another investigation was conducted to estimate the possible contribution of cloud
seeding in the disaster. The report concluded that the cloud seeding ight of 5 June 2016 “did not cause or
contribute to the oods”.105 However, some considered that Hydro Tasmania should have been aware that
heavy rainfall were forecasted and ood warnings issued in surrounding areas.106 Ultimately, all cloud
seeding operations were put on hold. Hydro Tasmania asserted that “the cloud seeding program (…) will
not resume until a full internal review of the program has been completed, including implementation
of any appropriate improvements, and extensive engagement with stakeholders.”107 With the Tasmanian
Liberal Party promising to phase out cloud seeding in the 2018 campaign,108 Hydro Tasmania has not
recommenced its operations since they were suspended in 2016.
3. New South Wales
The Snowy Mountains precipitation enhancement program currently is Australia’s only operational
cloud seeding program. Experiments were rst conducted in the Snowy Mountains in 1955–1959,
yielding successful results.109 A Committee on Cloud Seeding was appointed in 1966 but did not result
in the adoption of any legislation.110 In the 1980s, the Snowy Mountains Hydro-Electric Authority
(SMHEA),111 the agency in charge of managing and maintaining Australia’s largest network of hydro-
electric dams and power stations, showed a renewed interest in cloud seeding. The SMHEA requested
Siromath (a company set up by CSIRO in 1981) to assess the feasibility of the potential for cloud seeding
101Hydro Tasmania and West Coast Council, n 65, 61.
102Hydro Tasmania and West Coast Council, n 65, 38.
103Hydro Tasmania and West Coast Council, Socio-economic Impacts of Cloud Seeding on the West Coast Community (2008) 3.
104See, eg, Hydro Tasmania and West Coast Council, Effects of Cloud Seeding on Rainfall in the West Coast: Background Report 1,
n 65; Hydro Tasmania and West Coast Council, Socio-Economic Impacts of Cloud Seeding on the West Coast Community, n 103.
105Term of Reference 3: Cloud Seeding <http://www.dpac.tas.gov.au/__data/assets/pdf_le/0015/313143/Hydro_3_Cloud_
Seeding.pdf>.
106See, eg, Ockenden, n 1.
107Hydro Tasmania, Annual Report, (2016) 12 <https://www.hydro.com.au/docs/default-source/about-us/our-governance/annual-
reports/hydro-tasmania-annual-report-2016.pdf?sfvrsn=1c551328_2>. See also Cloud Seeding Statement <https://www.hydro.
com.au/news/media-releases/2017/09/14/cloud-seeding-statement>.
108See, eg, “No More Cloud Seeding under a Re-elected Majority Liberal Government”, Tasmanian Liberals, 22 February 2018
<https://www.tas.liberal.org.au/news/no-more-cloud-seeding-under-re-elected-majority-liberal-government>.
109McBoyle, n 55, 63.
110New South Wales Department of Agriculture Committee on Cloud Seeding, Report to Director General (1966), discussed in
Davis, n 13, 9.
111The SMHEA was established by the Snowy Mountains Hydro-electric Power Act 1949 (Cth).
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(2020) 37 EPLJ 698 709
in the Snowy Mountains.112 The study demonstrated potential to increase the Scheme’s inows,113 and in
1988–1989, the NSW departments of Agriculture and Energy funded the Snowy Mountains Atmospheric
Research Program (SMARP) to conduct eld investigations.114
Opposition from environmental groups, ski resort operators and downwind farmers caused the project
to be abandoned, but it was resurrected in 2003 following prolonged drought in South-East Australia.
Snowy Hydro Limited (former-SMHEA)115 proposed to invest in cloud seeding to increase precipitation
in the Snowy Mountains alpine catchments of up to 150 gigalitres a year.116 The House of Representatives
Standing Committee on Agriculture, Fisheries and Forestry considered the project to be “potentially a
very signicant win/win situation” as the operations would represent a signicant boost to the Murray
River system, without imposing costs on taxpayers.117 When the State of New South Wales reassessed
the project, Snowy Hydro assured that the new program would address public concerns: operations
would be conducted outside of the wilderness areas and when precipitation is likely to fall as snow.118
In 2004, the NSW Parliament authorised Snowy Hydro Limited to pursue a cloud seeding experiment
under the Snowy Mountains Cloud Seeding Trial Act 2004 (NSW).119 The Act authorised Snowy Hydro
Limited to conduct a six-year trial over the Kosciuszko National Park in a target area of about 1,000
square kilometres.120 The Snowy Precipitation Enhancement Research Project (SPERP) was designed
to evaluate whether cloud seeding using land-based silver iodide generators could markedly increase
snowfall in the region, both for agriculture and hydro-electricity production. The Act was amended in
2008 to extend the trial until 2014 and increase the target area to 2,150 square kilometres. In 2010, the
results of the trial phase showed an increase in precipitation of up to 14% and no signicant adverse
impact on the environment.121 Thus, in 2012, the project became operational under the Snowy Mountains
Cloud Seeding Trial Amendment Act 2012 (NSW). The map below reproduces the target area as
authorised under the Act.122
112Douglas E Shaw and WD King, Report of a Feasibility Study to Assess the Potential for a Cloud Seeding Experiment over the
Catchment of the Snowy Mountains Scheme (Siromath, 1986) discussed in Loredana Warren, “Snowy Precipitation Enhancement
Research Project” (Australian Cloud Seeding Research Symposium, Bureau of Meteorology, 2009).
113Michael Bergmann, The Snowy Mountains Hydro-electric Scheme: How Did It Manage without an EIA? (Australian National
University, 1999) 5.
114Warren, n 112, 31.
115Incorporated by the Snowy Hydro Corporatisation Act 1997 (Cth). Snowy Hydro Limited is owned by New South Wales (58%),
Victoria (29%) and the Australian Federal Government (13%).
116Parliament of Australia House of Representatives, n 62, 162.
117Parliament of Australia House of Representatives, n 62, 162.
118Parliament of Australia House of Representatives, n 62, 162. See “Land based operations may be carried out within or outside
the target area, but the seeding agent is not to be discharged from within the Jagungal Wilderness Area”; “The discharge of the
seeding agent is carried out at a time when increased precipitation in the target area is likely to fall as snow.” Snowy Mountains
Cloud Seeding Act (No 19) 2004 (NSW) s4(1)(b)-(c).
119Snowy Mountains Cloud Seeding Act (No 19) 2004 (NSW) Pt4 s4.
120Snowy Mountains Cloud Seeding Act (No 19) 2004 (NSW) Pt2 s4(1)(a) Sch1.
121Siems and Manton, n 94, 1.
122Snowy Mountains Cloud Seeding Trial Amendment Act (No 73) 2012 (NSW).
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710 (2020) 37 EPLJ 698
MAP 2. Snowy Mountains cloud seeding target area.
The Act overrides requirements for approvals or licenses under other laws, specically requirements
for formal EIA.123 It provides that “[a]uthorised cloud seeding operations may be carried out despite
any other Act or law.” 124 The SMHEA had prepared a draft environmental impact statement (EIS) in
1993,125 revised the draft EIS in 1997, and presented it to the NSW government in 2002.126 No new or
supplementary EIA was conducted when the project became operational in 2012. Nevertheless, Snowy
Hydro Limited is expected to prepare and update an environment management plan (EMP)127 and to
report on environmental performance to the NSW Natural Resources Commission (NRC).128 In addition,
the Ministers administering the Environmental Planning and Assessment Act 1979 (NSW) and the
National Parks and Wildlife Act 1974 (NSW) may suspend or terminate authorisation if the operations
create a risk of signicant adverse environmental impact, or if Snowy Hydro fails to comply with the
123Snowy Mountains Cloud Seeding Act (No 19) 2004 (NSW) Pt3 s7(2)(b).
124Snowy Mountains Cloud Seeding Act (No 19) 2004 (NSW) Pt3 s7(1).
125See generally B Harasymiw andJ McGee, Snowy Precipitation Enhancement Project—Draft EIS (SMHEA, 1993).
126Warren, n 112, 31.
127Snowy Mountains Cloud Seeding Act (No 19) 2004 (NSW) Pt2 s6(2)(b).
128Established the Natural Resources Commission Act 2003 (NSW) Pt2.
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Ministers’ requirements, such as implementation of the EMP.129 Like Victoria, the Act provides statutory
immunity for authorised operations:
[c]ompensation is not payable by or on behalf of the Crown arising directly or indirectly from any of the
following: (a) the enactment of this Act, (b) the carrying out of authorised cloud seeding operations, (c) the
exercise by any person of a function under this Act or a failure to exercise any such function.130
The analysis of the governance arrangements in Victoria, Tasmania and New South Wales raises questions
about decision-making framework, EIA and scientic uncertainty, public participation, monitoring of
operations and liability for damage. Key aspects of each issue are summarised in Table1. The following
sectioncompares how each State has dealt with these issues.
TABLE 1. Key issues in Australia weather modication governance
Issue Victoria Tasmania New South Wales
Decision-
making
framework
–Specic legislation –Executive power of State
government –Specic legislation
–Minister of Agriculture
authorises cloud seeding
(in practice, authorisation
granted to government
departments only)
–Hydro Tasmania conducts
cloud seeding (government-
owned enterprise)
–Snowy Hydro Limited conducts
cloud seeding (government-
owned enterprise)
EIA and
management of
uncertainty
–CSIRO as a training
agency and assist in
design and evaluation of
projects
–Hydro Tasmania follows
the ARMCANZ guidelines
for the utilisation of cloud
seeding as a tool for water
management in Australia -
No legal requirements
–CSIRO and the Bureau of
Meteorology engaged in
experiment design
–Exemption from EIA under the
Environmental Planning and
Assessment Act 1979
–No provision for EIA
–No EIA conducted in
practice
–EIA conducted for
the experimental phase
(Tasmania IV) in 1998.
–EIA conducted in 1991, but
no EIA conducted for the 2004
program.
–No precautionary measures –Snowy Hydro to develop and
implement an EMP (reviewed
every ve years.)
–No precautionary
measures
Public
participation
–None formally required. –None formally required. –None formally required.
–From 2008, informal notice
on local radio and daily
update on Hydro Tasmania’s
website, but no meetings or
consultation.
–No public notice, meeting or
consultation.
–In practice, no public
notice, meeting or
consultation occurs
–NRC reports made available
to the public eg Snowy Hydro’s
website
Monitoring
–Requirement for
reporting operations to the
Minister of Agriculture
–No formal reporting
obligations
–NSW NRC acts as a
supervisory and reporting
agency
–Reviews of operations
motivated by public
concerns over impacts (in
2008 and 2016)
–Monitoring obligation under
the EMP and NSW EPA reviews
EMP compliance
–Cloud seeding ofcer
must keep a logbook of
all cloud seeding ights
129Snowy Mountains Cloud Seeding Act (No 19) 2004 (NSW) Pt2 s6.
130Snowy Mountains Cloud Seeding Act (No 19) 2004 (NSW) Pt3 s9(1).
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712 (2020) 37 EPLJ 698
TABLE 1. continued
Liability
Statutory immunity for
authorised cloud seeding
operations
No legal protection Common
law negligence provisions
and the Civil Liability
Act 2002 (Tas) apply to
government exercising
executive authority
Statutory immunity for
authorised cloud seeding
operations
IV. DISCUSSION
A. Responsibility for Cloud Seeding Decisions and Activities
Cloud seeding in Australia has traditionally been funded and carried out by State governments.131
Apart from a provision of Australia’s Civil Aviation Safety Regulations1998 (Cth) that requires aircraft
certicate for the special purpose of “weather control and atmospheric research (for example, cloud
seeding)”,132 there is no national cloud seeding law in Australia. The Commonwealth has consistently
declined to take a formal role in implementing or overseeing rain making programs.133 Instead, it
encouraged States’ initiatives with the assistance of the CSIRO.134 While this has not been problematic
to date, cloud seeding activities may have potential interstate impacts that could benet from national
co-ordination and standards. For example, in the Snowy Mountains, operations take place close to the
Victorian border and may affect public lands, reserves and agriculture land in Victoria.
To date, cloud seeding has been considered a public service. Operational cloud seeding programs have
traditionally remained under State governments’ control.135 Never was a private operator granted the
authority to carry out operations.136 However, in recent years, the private sector has been increasingly
involved in cloud seeding. For instance, in a 2004 report on cloud seeding, climate change and water
resources, the Parliament House of Representatives considered the involvement of the private sector in
cloud seeding research and development.137 In Victoria, the authority to conduct rain-making operations
can now be granted to all business structures (sole trader, partnership, company, co-operative, trust,
incorporated association, etc.).138 The incorporation of Hydro Tasmania and Snowy Hydro also show that
the commercial development of weather modication science and technology has gained in popularity.
Although Australia continues to engage in cloud seeding research and development as a public service,
it increasingly recognises the competence and experience of cloud seeding companies in project
design. In the United States, the private sector has been heavily involved in the development of weather
modication and private cloud seeding operators offer their services worldwide, including to Australia.
For instance, a recent experiment in Queensland was a public/private initiative, involving the American-
based company, Weather Modication Inc.139 However, the involvement of the private sector requires
131McBoyle, n 55, 69.
132Civil Aviation Safety Regulations1998 (Cth) s21.25(2)(f).
133McBoyle, n 55, 84–85.
134Davis, n 13, 7.
135In the two States that have specic legislative frameworks governing cloud seeding activities, the primary statutory objective
is to restrict the use of cloud seeding without authorisation. In Victoria, authorisations have traditionally been granted to State
departments. In Tasmania and New South Wales, cloud seeding operations have been exclusively carried out by government-
owned enterprises: Snowy Hydro Limited and Hydro Tasmania.
136Farmers’ organisations have played a lobbying role in pushing for operational programs (eg in Western Australia) but were never
directly involved in rain-making projects. McBoyle, n 55, 92–94. See also Davis, n 13, 10.
137Parliament of Australia House of Representatives, n 62, 164–165.
138Department of Industry, Innovation and Science, Authority to Carry Out Rain-Making Operations – Victoria (13 September
2017) ABLIS <https://ablis.business.gov.au/service/vic/authority-to-carry-out-rain-making-operations/24339>.
139 Weather Modication, Inc, Queensland Environmental Protection Agency <http://www.weathermodication.com/projects.
php?id=4>.
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(2020) 37 EPLJ 698 713
mechanisms that allow government agencies to verify the soundness of their operations. This is best
accomplished through clear legislative oversight (like in New South Wales and Victoria) as activities
conducted under the discretion of the executive power (like in Tasmania), lack legitimacy, accountability
and transparency.
If the trend towards greater private involvement in cloud seeding continues, it may become necessary
to clarify the relative priority of public and private interests in precipitation. In a 1950 American case,
Slutskyv The City of New York, the Court rejected the claim of a resort owner who sued the city for
conducting cloud seeding operations that would have detrimental impacts on his business.140 The
decision reads: “[t]he Court will not prevent a possible private injury at the expense of a particular public
advantage”;141 and “[the plaintiffs] clearly have no vested property rights in the clouds or the moisture
therein.”142 Yet, in a later case, another State’s court recognised that “under our system of government the
landowner is entitled to such precipitation as Nature deigns to bestow”.143 While we are unaware of any
legal action brought against cloud seeding operators in Australia, these conicting decisions suggest that
there exist different approaches to private versus public rights over precipitation. Were landowners in
Australia to advocate for greater use of cloud seeding to support particular land uses such as agriculture,
it may be necessary to clarify the rights of private actors to conduct cloud seeding operations and use
atmospheric resources in Australia.
B. Environmental Impact Assessment and Management of Uncertainty
CSIRO has always refused to take partin operational programs, only to play an advisory role in States’
cloud seeding operations. Up until the 1970s, CSIRO acted as a professional licensing agency by testing
and certifying the cloud seeding competencies of governmental ofcers.144 In Victoria, for instance, the
Regulationsprovide that cloud seeding operations must be carried out using CSIRO-approved techniques,
equipment and personnel.145 According to Davis “[s]uch pooling of experience and resources is one of
the reasons why Australia (…) has been one of the leaders in weather modication work in the world.”146
In recent years, CSIRO has retained a certain expertise in evaluating cloud seeding projects undertaken
by the Water Industry.147 For instance, both the SMARP and the SPERP, in the Snowy Mountains, were
designed by Snowy Hydro, with assistance from CSIRO and the Bureau of Meteorology to ensure that
experiments were scientically sound.148 Therefore, even though the national government has played a
limited role in regulating cloud seeding, it has conserved some scientic oversight functions.
The CSIRO has been involved in the development of international standards and guidelines. CSIRO
scientists have greatly contributed to the WMO PEP and the development of guidelines that remain “a
test of the scientic credibility of any proposed cloud seeding project”.149 Similarly, the Agricultural and
140In Victoria, the Committee referred to this case and recommended that the public interest outweigh any private interests in
precipitation. Victoria, Parliamentary Debates (Legislative Assembly, 1 November 1967) 1609. Slutskyv The City of New York,
197 Misc 730 (NY, 1950).
141Slutskyv City of New York, 197 Misc 730 (NY, 1950).
142Slutskyv City of New York, 197 Misc 730 (NY, 1950).
143Southwest Weather Resources Incv Rounsaville, 320 SW 2d 211 (Tex Civ App, 1958).
144Between 1965 and 1970, the CSIRO provided training on weather modication to operators and administrators (ie Courses of
Instruction in Cloud Seeding Techniques). McBoyle, n 55, 76; Davis, n 10, 21.
145Rain-Making Control Regulations(No 98) 1968 (Vic) Pt2 s5(a).
146Davis, n 13, 17.
147Brian F Ryan and Brian SSadler, Guidelines for the Utilization of Cloud Seeding as a Tool for Water Management in Australia
(Agricultural and Resource Management Council of Australia and New Zealand, 1995) 8.
148Ryan and Sadler, n 147, 7. CSIRO and the Australian Government Bureau of Meteorology have also been involved in research
symposiums on Australian cloud seeding to explore the potential and mechanisms for cloud seeding research in Australia. See
Warren, n 112.
149MichaelJ Manton, “Evaluation of the Impacts of Cloud Seeding” (Australian Cloud Seeding Research Symposium, Bureau of
Meteorology, 2009) 24.
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714 (2020) 37 EPLJ 698
Resource Management Council of Australia and New Zealand (ARMCANZ) published a set of non-
binding Guidelines for the Utilisation of Cloud Seeding as a Tool for Water Management in Australia
1995.150 These scientic guidelines are designed “for water managers (…) to assist them in developing
planning procedures and decision-making processes that will maximise the possibility for a successful
experiment”.151 They provide general recommendations on the role of water managers, cloud seeding
operators, design scientists and independent review scientists in the development of scientically
acceptable projects.152 Two decades later, these guidelines remain a reference.
State agencies also play a signicant role in ensuring that cloud seeding programs are based on the
best science available. In Victoria and New South Wales, relevant Ministers are designated to authorise
operations.153 In New South Wales, the Act also gives competency to the NSW NRC to conduct
independent reviews of Snowy Hydro’s annual reports,154 and to the NSW Environmental Protection
Agency (EPA) to review compliance with the EMP. In the mid-term review of the trial phase, “the NRC
conrms that the trial is being conducted in compliance with the Act, is of a high scientic standard and
the evaluation plan is statistically sound.”155 The NRC also “sought input from relevant NSW agencies
and engaged expert scientists to peer review the information and analysis presented in Snowy Hydro’s
2009 SPERP report.”156 Indeed, the scientic community is actively involved in the evaluation of cloud
seeding experiments in Australia, with regular publications from the peer-reviewed literature.157 Informed
by the research community, State agencies provide a scientic advice; they have a special weight in the
decision-making process and allow for regular revision of the program.
In spite of WMO’s recommendations, there is no legal requirement to conduct EIA for cloud seeding in
Australia. In Victoria, no EIA is required by the law and none has been conducted in practice.158 In New
South Wales and in Tasmania, an EIA was conducted for the experimental phase of the programs, in the
absence of any legal requirement. However, no EIA has been conducted for the operational phase of
these programs. In operational projects, seeding operations are non-randomised – clouds are seeded in all
suitable occasions – and it becomes impossible to conduct accurate statistical evaluation of the effects of
a seeding.159 It is therefore impossible to assess the impacts of an operational program, especially longer-
term environmental impacts.160 Hydro Tasmania recognises that randomisation represented a signicant
economic loss, as seeding only partof the suitable clouds reduced chances of enhancing precipitation in
key locations.161 The 2008 background report explains “this strategy means that Hydro Tasmania and the
community have no reliable information on the impacts of cloud seeding on rainfall in the region since
150See generally Ryan and Sadler, n 147.
151Ryan and Sadler, n 147, 2.
152Ryan and Sadler, n 147, 12.
153Rain-Making Control Act 1967 (Vic) s3; Snowy Mountains Cloud Seeding Act (No 19) 2004 (NSW) Pt1 s3.
154Snowy Mountains Cloud Seeding Act (No 19) 2004 (NSW) Pt3 s8.
155New South Wales and Natural Resources Commission, Mid-term Review of the Snowy Mountains Cloud Seeding Trial (Natural
Resources Commission, 2010) 3.
156New South Wales and Natural Resources Commission, n 155, 2.
157For Tasmania, see, eg, Anthony E Morrison et al, “On the Analysis of a Cloud Seeding Dataset over Tasmania” (2009) 48(6)
Journal of Applied Meteorology and Climatology 1267; Bigg, n 41; Siems and Manton, n 94. For New South Wales, see, eg,
Williams and Denholm, n 36; Arlen Wesley Huggins et al, “The Snowy Precipitation Enhancement Research Project: A Description
and Preliminary Results” (2008) 40(1) The Journal of Weather Modication 28; MichaelJ Manton et al, “A Conrmatory Snowfall
Enhancement Project in the Snowy Mountains of Australia. PartI: Project Design and Response Variables” (2011) 50(7) Journal
of Applied Meteorology and Climatology 1432.
158 In the Warracknabeal project, for instance, social, ecological and legal aspects were not considered by decision-makers.
McBoyle, n 55, 90.
159WMO, n 28, 5–6.
160See, eg, Hydro Tasmania and West Coast Council, n 65, 49.
161“[G]iven the past evidence showing effectiveness and the current practice of seeding every suitable day, the introduction of
randomised non-seeded days will represent a loss of rainfall and its value in terms of power production.” Hydro Tasmania and
West Coast Council, n 65, 49.
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(2020) 37 EPLJ 698 715
the 1980s.”162 It concluded that further research was needed to assess the potential long-term effects of
the program.163 Yet, cloud seeding activities continued in Tasmania, without any precautionary measure
to integrate these uncertainties. A review of the governance arrangements should, therefore, ensure that
scientic uncertainties can be monitored and decreased overtime.
In New South Wales, thorough studies were conducted to determine the potential impacts of silver iodide
on the environment, including extensive literature review and investigation of background levels before
trial. During the experimental phase, 107 experiments were conducted using silver iodide as a seeding
agent and indium oxide as a tracer to monitor the silver levels.164 In 2010, the NRC mid-term review
conrmed that there was no evidence of silver iodide accumulation in the environment, nor impacts on
snow habitats and downwind areas.165 However, the NRC noted that the potential long-range transport
and accumulative properties of silver iodide created a risk of persisting in the food chain and affecting
biodiversity. Therefore, it recommended monitoring the effects of the seeding agents’ overtime.166 In
2012, an independent Expert Panel was appointed to assess the environmental issues associated with the
project. However, no formal EIA was conducted.
The NSW Act explicitly rejects the application of the Environmental Planning and Assessment Act
1979 (NSW), notably PartV on infrastructure and EIA.167 The conducting of operations is also taken
to be consistent with the National Parks and Wildlife Act 1974 (NSW).168 Instead, the NSW Act sets
an innovative procedure of assessment and monitoring. Under the Act, Snowy Hydro is to prepare and
review an EMP in consultation with the Ofce of Environment and Heritage, the NSW EPA and National
Parks and Wildlife Service.169 Snowy Hydro reports annually to the EPA on its compliance with the EMP
for the EPA to review.170 The EMP is reviewed at least once every ve years and has been reviewed in
2013 and 2018. Given high scientic uncertainty, traditional EIA have proven limited in their capacity to
assess the impacts of cloud seeding. In New South Wales, the law has created a derogatory legal regime
for cloud seeding. However, cloud seeding has been taking place largely outside of the general principles
of environmental law and EIA requirements, including consideration of alternatives and consultation of
stakeholders.
C. Public Participation
Procedural obligations, including public access to information, public participation and access to remedies,
are particularly problematic in the governance of cloud seeding in Australia. Studies have demonstrated
that public acceptance of weather modication is better achieved when the public is involved in decision-
making,171 but there is currently very limited opportunity for public participation in any of the States
examined. McBoyle conducted the rst survey of public opinion on weather modication in Australia,
162Hydro Tasmania and West Coast Council, n 65, 49.
163Hydro Tasmania and West Coast Council, n 65, 49.
164 Snowy Hydro, Snowy Precipitation Enhancement Research Project Annual Report Executive Summary, (2009) 2 <https://
www.snowyhydro.com.au/wp-content/uploads/2020/04/SPERPAnnualReport2009MayEXESUMMARY.pdf>. See also Williams
and Denholm, n 36.
165New South Wales and Natural Resources Commission, n 155, 3.
166“A key uncertainty identied by the NRC and our specialist peer reviewers is the transport and potential long-term accumulation
and impacts of silver iodide and indium (III) trioxide.” New South Wales and Natural Resources Commission, n 155, 3.
167Environmental Planning and Assessment Act (No 203) 1979 (NSW).
168Snowy Mountains Cloud Seeding Act (No 19) 2004 (NSW) Pt3 s7(3).
169 Snowy Hydro, Environmental Management & Monitoring <https://www.snowyhydro.com.au/our-energy/cloud-seeding/
environmental-management-monitoring/>.
170Snowy Mountains Cloud Seeding Act (No 19) 2004 (NSW) Pt2 s 6(1). See, eg, NSW EPA, Report on the Findings of the
NSW Environment Protection Authority’s Review of Snowy Hydro Limited Cloud Seeding Program: 2017 Annual Compliance
Report (2017) <https://www.epa.nsw.gov.au/-/media/epa/corporate-site/resources/legislation/18p0868_shl_cloud-seeding-annual-
compliance-report-2017.pdf>.
171“It would seem that, as in the North America situation, there is less likelihood of opposition to a project where the public is kept
fully informed throughout the whole process.” McBoyle, n 55, 135.
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716 (2020) 37 EPLJ 698
in the Warracknabeal area, Victoria, in 1980.172 The study was conducted in the form of questionnaires
of residents within and downwind of the target area and showed an overall positive attitude, despite
downwind residents’ concerns about information, notication, participation and EIA.173 Interestingly,
most respondents had obtained their information through media sources, not government agencies.174
Media still plays a critical role in informing the public about cloud seeding in Australia, and it is worth
questioning whether media constitutes a trustworthy source of information. Governments, on the other
hand, relay limited information on the matter, contributing to a certain confusion of the concerned
populations.
Deciencies in government-led information and engagement on cloud seeding are also evidenced in
Tasmania. The 2008 report on socio-economic impacts of cloud seeding involved the consultation of
Tasmanian West Coast residents through interviews, surveys and focus groups.175 The report pointed out
an “information vacuum” and a feeling of distrust in cloud seeding activities, conducted without public
notice, participation nor benet-sharing.176 Access to information and notication were particularly
contentious. Local populations recommended the provision of real-time information about seeding
activities and better public education.177 The report resulted in regular reporting on local radio station,
daily updates of the Hydro Tasmania website, and the establishment of a community consultative
group.178
Cloud seeding operations do not directly affect local communities in New South Wales because of
the remoteness of the infrastructures. Yet, there are still signicant pockets of opposition. The Colong
Foundation for Wilderness, for instance, considers that the NSW Act “sets a very dangerous precedent
for undertaking proposals without environmental impact assessment in one of Australia’s most
environmentally sensitive areas of national park”.179 The Foundation argues that the Act allows Snowy
Hydro to bypass existing environmental laws, with operations near sites protected under the UNESCO
and Ramsar Conventions.180 They argue that the costs far outweigh the benets of the program, that
could impact local wildlife (eg Mountain Pigmy Possum, Southern Corroboree Frog) and populations
living in the rain-shadow areas. These experiences point to a need for more proactive, and less reactive,
public engagement. More systematic consultation, including through public meetings or hearings, could
allow a more meaningful participation of community groups, affected individuals and industries in the
decision-making process.
D. Monitoring of Effectiveness and Impacts
The WMO recognises that “[u]ncertainties inherent in the current technologies can only be addressed
by programmes of focused research that lead to deeper understanding of the effects of cloud seeding on
cloud and precipitation development.”181 If Australian States are to pursue cloud seeding activities, they
should also ensure that appropriate research programs help to decrease scientic uncertainties over time.
172McBoyle, n 55, 107.
173McBoyle, n 55, 107.
174McBoyle, n 55, 107.
175Hydro Tasmania and West Coast Council, n 95, 5–7.
176Hydro Tasmania and West Coast Council, n 103, 21.
177Hydro Tasmania, “Report into Cloud Seeding on the West Coast” (Media Release, 4 June 2008) 1 <https://www.hydro.com.au/
docs/default-source/water/cloud-seeding/cloud-seeding-media-release_4june2008.pdf?sfvrsn=17441228_0>.
178Hydro Tasmania, n 177.
179National Parks Association of NSW Colong Foundation for Wilderness, Brieng on Cloud Seeding on Kosciuszko National
Park <https://www.colongwilderness.org.au/campaigns/save-kosciuszko-national-park/brieng-on-the-proposed-cloud-
seeding-kosciuszko-national-park>.
180“The enabling legislation overturns the National Parks and Wildlife Act 1974; Wilderness Act 1987; Fisheries Management
Act 1994; Threatened Species Act 1995; Local Government Act 1993; Protection of the Environment Operations Act 1997; and
Environmental Planning and Assessment Act 1979.” Colong Foundation for Wilderness, n 179, 3.
181WMO, n 28, 4.
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(2020) 37 EPLJ 698 717
Yet, cloud seeding is currently used on an operational basis without integrated research addressing the
risks of large-scale and long-term effects.
Resuming cloud seeding activities in Victoria or Tasmania would also require improvements in monitoring
and reporting systems. The Victorian Act requires reporting to the Department of Agriculture, but nothing
requires monitoring the impacts of cloud seeding operations. This is inconsistent with the WMO and
the ARMCANZ guidelines that recommend monitoring long-term impacts of silver iodide, extra-area
effects and persistent effects.182 In Tasmania, even though the EIA had identied several uncertainties to
monitor, Hydro Tasmania has not been subject to any specic monitoring or reporting obligations related
to cloud seeding activities.183 In 2008, the local communities expressed the need for better monitoring, but
no monitoring system was implemented.184 This was explained on the ground that the natural variability
of rainfall renders the assessment of extra-area and downwind effects impossible.185
Conversely, there are binding monitoring obligations in New South Wales.186 The EMP “includes an
adaptive environmental monitoring program where the future program is informed by the results of
the previous environmental monitoring”.187 Each year, Snowy Hydro Limited reports its research and
monitoring results to the EPA (eg concentrations of silver iodide and indium trioxide, as well as impacts
on montane riverine ecosystems and snow habitats). In the 2017 annual compliance report of Snowy
Hydro’s EMP, the EPA notes that: “[e]nvironmental monitoring has, to date, not detected any signicant
adverse environmental impacts.”188 This adaptive monitoring approach creates exible arrangements that
allow to integrate scientic uncertainty and could be replicated in other States. Nevertheless, it could
gain from independent programs designed to advance fundamental research in atmospheric sciences.
E. Liability
Cloud seeding laws in Australia currently limit access to judicial remedies to persons that might be
affected by cloud seeding.189 In his 1980 survey of Warracknabeal residents, McBoyle found that an
overwhelming majority of respondents thought that cloud seeding operators should be held liable for
damage resulting from operational cloud seeding projects.190 No subsequent study has considered this
question, but it is noteworthy that the regimes currently in place in New South Wales and Victoria
explicitly afford forms of statutory immunity from liability. This immunity was considered necessary
throughout the 1970s–1980s, for fear that regulationsand punitive measures would constrain the benets
of this emerging technology.191 In Victoria, the statutory immunity was considered reasonable because
“in the authorization of rain-making operations, particular attention will be paid to any adverse effect
182Similarly, the WMO warns “[u]nintended consequences of cloud seeding, such as downwind effects, persistent effects of silver
iodide in soil, and environmental and ecological impacts, have not been demonstrated but cannot be ruled out.” WMO, n 28, 7.
183Historically, Hydro Tasmania addressed cloud seeding activities briey in its annual reports: Hydro Tasmania, Annual Report
(2012) <https://www.hydro.com.au/docs/default-source/about-us/our-governance/annual-reports/hydro-tasmania-annual-
report-2012.pdf?sfvrsn=e26e1328_2>.
184Hydro Tasmania and West Coast Council, n 103.
185Hydro Tasmania and West Coast Council, n 65, 1.
186Snowy Mountains Cloud Seeding Act (No 19) 2004 (NSW) Pt2 s4(1).
187NSW EPA, n 170, 3.
188NSW EPA, n 170, 2.
189“Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.” Rio Declaration
on Environment and Development, United Nations Conference on Environment and Development (13 June 1992) 31 ILM 874,
Principle 10.
190McBoyle, n 55, 123.
191“Weather modication activities, no adverse effects of which have been proved on the basis of the present state of scientic
knowledge, were distinguished from other activities involving pollution and other harmful effects; the view was expressed that
the development of new benecial technology should not be constrained unduly by ‘punitive’ legal sanctions.” WMO and UNEP,
Report of the WMO/UNEP Informal Meeting on Legal Aspects of Weather Modication (1975) 731.
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718 (2020) 37 EPLJ 698
rainfall might have on certain crops”.192 It was agreed that any disaster would be dealt similarly as natural
bushres and oods, and that the Crown should not be held liable for damage resulting from weather
modication activities.193
Similarly, the NSW Act prevents administrative actions to be taken against the authorised operations.
It lists the ordersor notices that may not be made to prevent or interfere with the operations, including
interim protection orders and environment protection notices. Interestingly, the immunity from civil
liability does not extend to Snowy Hydro.194 The Act denes the Crown “within the meaning of the
Crown Proceedings Act 1988, and includes an ofcer, employee or agent of the Crown, but does not
include Snowy Hydro Limited”.195 Therefore, Snowy Hydro Limited does not benet from the sovereign
immunity and could, theoretically, be sued for compensation of damage resulting from cloud seeding
activities. Liability will be extremely hard to establish, however. The difculty of attributing a particular
weather-related damage to a seeding operation still represents a signicant obstacle to proving causation
or “direct interference” for actions in trespass.196
In Tasmania, in the absence of statutory immunity, both the Tasmanian government and Hydro Tasmania
could potentially be sued in tort for negligence and nuisance for damage caused by cloud seeding
activities. In 2016, the independent review of the ood found that Hydro Tasmania’s cloud seeding
activities that morning had no measurable effect on rainfall because the targeted clouds already contained
sufcient ice to precipitate.197 Therefore, no evidence of causation justied imposing liability for the
ood. The report also concluded that Hydro Tasmania’s program design and evaluation had complied
with the ARMCANZ Guidelines.198 This report is obviously helpful, but not necessarily determinative
of negligence or liability in a legal sense. Although there was no legal action engaged against Hydro
Tasmania, these inconsistent approaches to liability in State-based regimes suggest that this is an issue
ripe for reform.
V. CONCLUSION
Australia has played a major role in weather modication research and implementation. Although
Australian experiments have been carried out in accordance with applicable international standards,
experience with the practice and governance of weather modication highlights deciencies in the
regulationof cloud seeding activities. First and foremost, non-randomised operations have prevented
accurate assessment of impacts in practice (especially persistent and extra-area effects). There is limited
evidence of precautionary experimental program or comprehensive assessment and monitoring of
environmental, social and economic impacts of cloud seeding activities, both within and beyond target
areas. In addition, cloud seeding laws do not provide for the procedural rights of the local communities,
including access to information, public participation and access to justice. Where they exist, statutory
immunity provisions raise questions of accountability, especially for individuals and industries who may
be adversely affected. Some of these drawbacks patently conict with principles of good governance so
that a revision of cloud seeding frameworks is mandated.
The prospect of climate-induced drought may prompt renewed interest in cloud seeding in Australia.
This presents an opportunity to reconsider the adequacy of the current regulations. With the newest
regime more than two decades old, it is time to modernise these laws and locate them within a broader
framework of environmental law principles. This process of reform can also provide a useful starting
192Victoria, Parliamentary Debates (Legislative Assembly, 1 November 1967) 1608.
193Victoria, Parliamentary Debates (Legislative Assembly, 1 November 1967) 1609.
194Snowy Mountains Cloud Seeding Act (No 19) 2004 (NSW) Pt3 s7(6).
195Snowy Mountains Cloud Seeding Act (No 19) 2004 (NSW) Pt3 s9.
196Heilbronn considered trespass the only cause of action available under Australian law: plaintiffs do not need to prove actual loss
or damage but need to demonstrate negligence or intent, as well as interference with a property right. Heilbronn, n 13, 131–143.
197Blake, n 4, 5.
198Blake, n 4, 54.
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(2020) 37 EPLJ 698 719
point for wider conversations about how best to govern solar radiation management technologies such as
MCB. Given Australia’s increasing interest in the potential to expand MCB to protect the Great Barrier
Reef, as well as wider interest in planetary-scale solar radiation management, weather modication
activities like cloud seeding could offer a localised example of governance approach for these new
technologies. This articlehas identied a number of shortcomings, all of which can be used as lessons in
future efforts to govern technologies intended at modifying atmospheric processes.
