I participated in an American Bar Association round table discussion a few months ago with my friend and colleague Pamela Meredith, a fellow space lawyer. The ABA captured the discussion in its publication The Air & Space Lawyer’s Winter 2017 edition. If you are a member or subscriber, you can read it here. The interviewer asked us about a range of topics, from the big issues in space law twenty years ago, to current issues, to our experiences as women in the field. I am allowed to share what I said so long as it is clear that it may not be reprinted without permission from the ABA.
The Past. In response to questions about the FAA’s regulatory focus twenty years ago:
With geostationary and low Earth orbit satellites, the launch industry realized that expendable launch vehicles (ELVs) could be commercially viable. This was also after the Challenger accident, at a time when there was no more commercial activity on the space shuttle, which had forced industry to pivot back to ELVs. The Air Force also was very interested in fostering at least two ELVs so that there would be some competition. ELV companies, meanwhile, were attracted by the prospect of a market where not only the government but also commercial satellite operators would be their customers. This created considerable optimism about the industry’s commercial prospects and led to a significant infusion of capital in both satellite operators and the launch industry.
For the FAA, it was a time of great regulatory activity. We had previously relied so heavily on the Air Force for safety that the safety standards were rather nontransparent. The FAA sought to address this by publishing and codifying regulations. Not surprisingly, these regulations were similar to the Air Force’s practices and procedures. The FAA promulgated the so-called “launch rule” or core regulations governing launch vehicles. It took nine years to finalize those regulations.
The Present. In response to a question about current issues:
The concept of space law has evolved from a rather academic focus on international treaties (dating back to the 1960s and 1970s) to the later emergence of national or domestic space laws. In the United States, this includes the regulatory roles and activities of the FAA, the FCC, and the National Oceanic and Atmospheric Administration (NOAA). As the focus has started to shift from expendable to reusable rockets, companies like SpaceX and Blue Origin are leading the way and hopefully will make space more accessible from an operational and cost perspective. Orbital debris, however, remains a significant and increasing concern. I was proud that the FAA was the first regulatory agency to issue debris rules, and the private sector is also attempting to address the problem (e.g., through the Space Data Association), which is appropriate because it is their property that would get destroyed if a collision occurs.
The Future. In response to questions about what’s coming down the pike:
Looking to a future of people traveling to the Moon and Mars, property rights issues are likely to become critical, both with respect to moveable property and real property issues. In 2015, Congress recognized that space miners have property rights in the resources they extract. Congress did not, however, address questions regarding private ownership of land. Many academics think that the Outer Space Treaty prohibits private ownership of real property, but I do not agree. That question, however, is a live issue.
Pamela and I disagree on this, but there’s a provision in the Outer Space Treaty, Article VI, which says that each country must supervise and authorize the activities of its nongovernmental entities. This is not a self-executing provision, and the U.S. Supreme Court has held that a non-self-executing treaty is not domestically enforceable. This means that if someone wants to go play the harp on the Moon or brush her teeth in outer space, she doesn’t need a license. I use these frivolous examples intentionally to make the point that everything doesn’t need to be regulated just because you’re in outer space.