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Abstract: This Article is the first to identify that companies and agencies systemically modify climatic airspaces through wildfire smoke emissions, weather modification (cloud seeding to cause rain), and solar geoengineering. Climate modification is not a conspiracy theory or a hypothetical: it is happening and it is changing weather patterns. Yet, climate modification is almost wholly unregulated. Further, it is also not recorded or tracked in systemic ways. That is to say, even government agencies do not have comprehensive records of whether, how often, or how much climate modification is occurring. The data is simply not gathered, aggregated, or stored. As a result, major indicators that ¬rely on climatic conditions—including the Environmental Protection Agency climate accounting—systemically overlooks the effects of human-caused climate manipulation when accounting for changes in weather and air quality over time.
This lack of regulation is a serious problem: climate accounting fails to measure virtually unregulated activities undertaken by a mix of public and private actors. Without accurately accounting for these activities, scientists and agencies may be understating the effect of climate change on historical factors, including CO2 emissions levels and rainfall. Such misinformation may lead to dramatic misstatements about the severity of the climate emergency, an environmental justice disaster that disproportionately affects communities of color. Inaccuracies in climate accounting stemming from the lack of data about climate modification also blinds policymakers to opportunities to slow or reverse anthropocentric climate change through measuring, accounting for, and regulating human manipulation of airspace.
How is it possible that the leading federal agency accounting for climate change is failing to account for changes to airspace? Law as a whole [or, “The legal system as a whole,” etc.] systemically overlooks and underregulates human manipulation of “invisible” natural resources which are diffuse, invisible to the naked eye (and thus difficult to detect), lacking commercial value, and seemingly outside centralize human control. From pollution to fish populations, underground water sources to oil and gas flares, even the agencies tasked with regulating invisible resources find it nearly impossible to detect, measure, and account for human inputs into natural systems.
These examples illustrate a broader theoretical point: climate and environmental policy analysis and solutions are hamstrung by the limitations inherent in modern Western conceptions of property. This Article demonstrates how an emerging model of multidimensional property—derived from interdisciplinary discussions of overlapping property rights, mismatched property rights, and landscape-level resources—can improve the framing of climate change and other ecological problems, and thus improve the available outcomes.
This Article makes at least three contributions to environmental law, natural resources law, and property law literatures. First, it identifies the crucial problem of climate manipulation, which is currently unregulated and not included in climate accounting. Second, it develops a theory of invisible resources which are difficult to measure, detect, and regulate but nevertheless affect the human environmental in vitally important ways. Finally, it demonstrates how a new model of multidimensional property can extend concepts of property rights and regulation into invisible airspaces, making currently unregulated climate mitigation the subject of oversight and regulation.
The real-world importance of addressing this crucial oversight cannot be overstated: Agencies must use all tools at their disposal to understand and address the climate emergency.
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