GAO Report on Re-locating the FAA’s Space Office, and Aviation Advisory Committee on Space Industry use of Airspace

A couple of weeks ago the Government Accounting Office responded to a request from members of the House of Representatives that GAO review issues related to moving the FAA’s Office of Commercial Space Transportation (AST) back to the Department of Transportation. The FAA is part of DOT, and AST is part of the FAA. I will not address the whole report, just those concerns that would actually require a change in the law rather than a change in location to resolve.  Additionally, it appears that the FAA plans to rely on the aviation community to advise on how to integrate space transportation into the navigable airspace.

AST is the specific part of the FAA that regulates and authorizes non-federal launch, reentry, and the operation of launch or reentry sites as carried out by U.S. citizens or within the United States under 51 U.S.C. ch. 509. The Secretary of Transportation originally located the space office within the Office of the Secretary at DOT before delegating the Secretary’s authority over space to the FAA in 1995.

GAO interviewed launch and reentry operators who have operated under FAA licenses and permits as well as operators of launch and reentry sites, commonly known as spaceports, for its report. Also, GAO interviewed employees of both the FAA and DOT, including at senior levels.

Airspace Issues. GAO reported that one company said that the lines of responsibility between AST and the FAA’s Air Traffic Organization (ATO) lack clear definition. Under 49 U.S.C. § 40103(b),

(1) The Administrator of the Federal Aviation Administration shall develop plans and policy for the use of the navigable airspace and assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. The Administrator may modify or revoke an assignment when required in the public interest.

(2) The Administrator shall prescribe air traffic regulations on the flight of aircraft (including regulations on safe altitudes) for—

(A) navigating, protecting, and identifying aircraft;

(B) protecting individuals and property on the ground;

(C) using the navigable airspace efficiently; and

(D) preventing collision between aircraft, between aircraft and land or water vehicles, and between aircraft and airborne objects.

Moving AST out of the FAA would not change the rest of the FAA’s authority over the navigable airspace. Relocation would merely require Metro rides for meetings between DOT—which is located by the Navy Yard—and the FAA—which is located on the Mall—or telecons between people in different buildings rather than the same building. This does not seem like an effective cure for what is at heart a substantive question of legal authority.  AST has authority over launch and reentry, but launch and reentry take place in navigable airspace, which is used by airlines and other persons operating aircraft.

The issue is also a question of weight. Aviation is a much larger industry than space. Whether the space regulator resides in the FAA or DOT, the aviation industry will continue to occupy the same dimensions. I fervently hope the space industry continues its growth, but the difference between the two sectors will still have the same political weight, regardless of whether AST resides in DOT or not. DOT itself indicated as much when, according to GAO’s report, “Officials from the Office of the Secretary of Transportation also said that even if the commercial space transportation office were moved to their office, they would still need to work with FAA on airspace access issues and that they would not necessarily favor the industry regarding airspace issues.” (emphasis added). Just as the space industry and AST must educate and persuade persons within the FAA, so would they have to persuade persons within DOT, and there they would be starting over again.

Advisory Committee. GAO reports a far more troubling comment from an Air Traffic Organization employee, who said that the “FAA plans to start an aviation rulemaking advisory committee that will help to determine airspace access priorities for all national airspace users.” To appreciate this, we need to understand that the FAA has several advisory committees: the referenced Aviation Rulemaking Advisory Committee (ARAC) and the Commercial Space Transportation Advisory Committee (COMSTAC). They each consist of industry members, and they address issues related to their respective industries. If the ARAC determines airspace access priorities it cannot help but be informed by its members, and its members are not commercial space operators. Again, the aviation community may outweigh the commercial space operators unless someone takes steps to ensure that commercial space has a voice at the ARAC table.  Also, COMSTAC now has a renewed charter so perhaps it could play a role.

Spaceports and a One-Stop Shop. One spaceport operator stated an interest in a one-stop shop, meaning that the spaceport operator preferred to have just one point of contact within the FAA. This person said he had to work not just with AST but with the Office of Airports in the FAA to address the effects of spaceports on airports. Moving AST out of the FAA would not remove this requirement. If an airport wants to host commercial launches and reentries it need a license to operate a launch or reentry site. Many airports receive federal grant money, and the laws and regulations that apply to that grant money tend to restrict it to aviation uses. Space transportation does not fall under the category of aviation, so the Office of Airports tends to require insight into the new use proposed for the airport. Were AST moved to DOT, those laws and regulations would still apply to airports that had accepted federal grant money, and an airport that wanted to be a spaceport would still need to abide by those requirements and attend to the Office of Airports.

 

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Words Matter: Regulation vs Regulation

Words matter.  Although Lewis Carroll’s Humpty Dumpty was perhaps wrong to claim that words meant what he wanted them to mean, it’s still helpful to remember that sometimes people mean different things.  This may be so with the term “regulation.”

“Regulation” as Oversight  As a former regulatory bureaucrat I always thought of “regulation” as meaning that some part of the government gets to tell someone not in the government (a “private actor”) what he or she must or may not do in some specific context.  The Federal Aviation Administration is a great example of a regulator.  It tells builders and operators of aircraft what they must or may not do via certificates, regulations, orders, exemptions, and a host of other regulatory mechanisms; and that’s just on the aviation side.  On the space transportation side of the agency, the FAA regulates launch, reentry, and non-federal spaceports, including those operated by states.

The FAA issues regulations through rulemaking.  If a private actor violates one of the agency’s regulations the FAA may impose fines in the form of civil penalties or revoke the private actor’s authorizations to fly or build an aircraft or launch a launch vehicle.  I long thought this was what everyone meant by regulation.

“Regulation” as the Rule of Law.  I think I was wrong.  In the past year or so I’ve heard other references to regulation that left me quite puzzled at first.  They did not apply to some part of the executive branch telling the private sector how to conduct itself.  Instead, these people spoke of regulation more as a sort of order.  Some wanted regulation and title to protect property rights.  Investors wanted regulation for certainty, so they would understand the lay of the land.  When questioned more specifically, some investors turned out to want rules of the road, not a series of authorizations and rules.  (Others, by the way, the ones who wanted what I think of as regulation, stressed they did not want a lot of it.  That was bad for business, too.)

This broader use of the term regulation suggests that people want to understand what law applies.  Specifically, the question of certainty over property rights appears to loom large.  That concern I understand.  If a private actor spent a fortune and decades of his or her life getting to the Moon, that person might worry that the investment might not be protected by the rule of law out where no nation has sovereignty.  After all, how will two private entities handle disputes when they both lay claim to the same patch of ice on the Moon?  Who will decide such disputes?  What law will apply?  What if another country wants to claim the lunar village you just finished building?

Words of Caution.  These are important questions.  The critical thing is not to mix the questions up with regulation, “real” regulation, if I may be allowed to call it that.  Assigning some agency in the federal government to authorize lunar roving does not address the questions of how to tell who owns what, how to handle disputes, how to ensure that no one takes someone else’s hard work, or what law will apply.  Those people looking for rules of the road should avoid asking for regulation.  They should be more specific and say they want certainty about property rights or the rule of law.  If they ask Congress for “regulation,” they’ll get it.

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Softly, Softly

On October 4, 2017, the FAA issued new regulations for noise certification standards on certain airplanes.  They become effective November 3, 2017.  Certification standards apply to the design and manufacture of an aircraft.  Operational rules apply to its operation.  Specifically, the new rules adopt:

a new noise standard for newly certificated subsonic jet airplanes and subsonic transport category large airplanes. By lowering the noise limit, this standard requires quieter designs and encourages manufacturers to adopt the latest available noise reduction technology into their aircraft designs. This rulemaking adopts new noise certification standards for airplanes certificated in the United States (known as Stage 5) that are equivalent to the International Civil Aviation Organization (ICAO) Annex 16, Volume I standard known as Chapter 14.

These new rules will not apply to launch or reentry vehicles because the law does not treat launch and reentry vehicles as aircraft.  Additionally, launch and reentry vehicles do not undergo certification. However, the new rules may serve as a reminder of what happens when noise overburdens a community.  The communities turn to Congress and demand that Congres take action.

Another interesting facet of the new rules is that the FAA describes its new standards as equivalent to the international standards of the International Civil Aviation Organization.  ICAO has expressed keen interest in suborbital launch vehicles.

Try to keep it down out there.

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High Grade Ore by Lee Hart

One may find space law anywhere.  Stanza 4 contains an interesting approach to verifying a claim. Also, the whole ballad is totally cool. Mr. Hart kindly gave me permission to share this here, and a band will be setting it to music. LM.

High Grade Ore
by Lee Hart

Now Murphy was a spacer; a miner, nothing more.
A bit of human jetsam lost in night’s Plutonian shore.
Until he found that asteroid, and entered into lore;
Him and 40 kilotons of high grade ore.

He’d manned his tiny ship alone, a year or maybe more.
A flea among the asteroids; homeless, starving, poor.
Each rock with only traces of what he searched ’em for.
Hunting for his holy grail of high grade ore.

The radar caught his vector, heading for L4.
With delta-V a little high, but fusion drive full bore.
“Cap’n Murphy callin’ in this day of August 4.
‘A claimin’ 40 kilotons of high grade ore.”

The base assayer radioed, “You’ve heard the rules before.
Your claim’s no good until you land that worthless hunk of ore.
And then I’ll have to analyze its purity before
You own that 40 kilotons of high grade ore.”

“Jesus, what you burning there?”, the port controller swore.
“There’s colors there in your exhaust I’ve never seen before”.
“Just gum’ment forms”, said Murphy, “and rulebooks by the score”.
“To help me trim this delta-V, that’s all I kept ’em for”.

“Murphy, there’s a lawyer here, from Cheatham, Ripp, and Gore.
He says your bills are way behind, a year or maybe more.”
“Jes’ stand him on me landin’ pad, I’ll pay him off for sure.
And drop him 40 kilotons of high grade ore.”

The radar station checked the course, then checked it even more.
It seemed that Murphy’d land a thousand yards below the floor.
The operator called it in, then headed out the door.
“I’ll take my last vacation day, that’s what I saved it for!”.

“Veer off, ya goddam lunatic!”, the base commander swore.
“That rock’ll smash a hole in us a mile wide or more!”
“Now don’t you worry”, Murphy said, “I’ve done this thing before.
It’s only 40 kilotons of high grade ore.”

And then the fusion drive waxed bright, full thrust or maybe more.
The tiny ship, it floated down; the rock, it towered o’er
Straining every rivet with a load like Atlas bore.
To stop that 40 kilotons of high grade ore.

The falling mountain slowed, then crawled, then gently kissed the floor.
The fusion drive ran out of fuel in just a second more.
And as the engines died away, the scale of Smelter 4
Was reading 40 kilotons of high grade ore.

A mob raced to the landing pit, there must have been a score
To cheer the god, or curse the fool who’d shown them all death’s door.
They found no man, they found no ship; an engine, little more
Beneath that 40 kilotons of high grade ore.

The cold equations do not lie, nor cheat like some old whore.
He knew them better than his wife (who’d left the year before).
Murphy didn’t have the fuel to make the dock secure
While pushing 40 kilotons of high grade ore.

A fusion drive burns anything; that’s what they use ’em for.
So piece by piece, his ship he fed the grim reactor core.
And when it all was not enough, he entered through that door
To stop his 40 kilotons of high grade ore.

The assay team reported something odd about this ore.
They saw where Murphy’d tried to cut; that hadn’t worked for sure.
They tried to chisel, burn, and blast, and finally they tore
A bit off 40 kilotons of high grade ore.

The chief assayer checked it out, and tallied up the score.
The density was very high; few elements are more.
Its hue, its malleability; its carats — 24!
My God, it’s 40 kilotons of pure gold ore!

No one has yet discovered just where he found that ore.
But Murphy’s gold put us in space; a million men and more.
The future destiny of man, now it is secure.
Thanks to a lonely miner and his high grade ore.

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Is it a Reentry Vehicle if it Doesn’t Return Substantially Intact?

Let’s say you plan to bring something in from outer space.  You might wonder whether it needs a reentry license from the Federal Aviation Administration.  The answer will depend on what you bring back. (It will also depend on a lot of other factors, such as your location and whether you are a citizen of the United States).  If you plan to reenter a reentry vehicle you do need an FAA reentry license.   When Congress gave the FAA authority over reentry of a reentry vehicle, it defined a reentry vehicle to mean “a vehicle designed to return from Earth orbit or outer space to Earth, or a reusable launch vehicle designed to return from Earth orbit or outer space to Earth, substantially intact.”  If your object doesn’t satisfy the definition, you don’t need a reentry license.  This definition excludes, for example, satellites.

To qualify as a reentry vehicle, the vehicle needs to be designed to return form Earth orbit or outer space substantially intact, regardless of whether it’s a simple reentry vehicle or a reusable launch vehicle.  We know that the requirement that it be substantially intact applies to both reusable and non-reusable vehicles because we all remember the grammar rule about how if a modifier comes after a list of two things it modifies only the second thing unless there’s a comma.  Because of the location of the comma, “substantially intact” applies to both types of vehicles.  One thing we can tell from this definition is that reentry of most satellites would not need an FAA reentry license.

Easy cases. How do we figure out if a manufacturer designed a vehicle to return substantially intact?   Let’s take the easy scenarios first.  If one operator returns a capsule from space, lands it in the ocean, and pulls a bunch of rocks or science experiments out of it, it’s not a stretch at all to say that vehicle has returned substantially intact.  At the other end of the spectrum, another vehicle might take trash out of an orbiting habitat and be designed to burn up in the atmosphere.  It won’t need a license because it won’t return substantially intact.

Hard case.  Of course, real life will offer more difficult examples.  What do we say about a vehicle with a surviving chunk of titanium that reaches the surface of Earth ?  Titanium can survive reentry, but it’s not like the vehicle itself will come back substantially intact.   Satellites exist which have pieces that can survive the rigors of atmospheric reentry yet they are not designed to survive.  The risk numbers for Envisat, for example, indicated as much.  No, the definition requires the vehicle to be designed to return substantially intact.  A chunk of titanium alone hardly counts as a vehicle.  What if other bits of the vehicle and the chunk of titanium survive?  Then we have to figure out if those count as a vehicle and as “substantial.”

These types of questions will likely get worked out on a case by case basis.

 

 

 

 

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Sparsely Populated Precedent

The Federal Aviation Administration regulates two industries:  aviation and space transportation.  Congress has directed the agencies to regulate these industries under two different laws, which means that the FAA has two separate sets of regulations for air and space transportation.  The FAA does not necessarily view the one as precedent for the other.  Nonetheless, they are awfully interesting. For example, both the air and space regulations address overflight of populated areas. They use different terminology, but they circle around the same principles.

The rules for experimental suborbital rockets contain a number of safety requirements, including the requirement that the vehicle operator contain its reusable suborbital rocket’s instantaneous impact point within an operating area, a three-dimensional region where permitted flights may take place, and outside any exclusion area.

How does the operator figure out what an operating area is?  14 C.F.R. § 437.57(b)(2) states that an operating area must contain enough unpopulated or sparsely populated area to perform key flight-safety events.  A key flight-safety event means a permitted flight activity that has an increased likelihood of causing a launch accident compared with other portions of flight.    Additionally, an operating area may not contain or be adjacent to a densely populated area or large concentrations of members of the public.  If there are too many people within an operating area, the operator may establish an exclusion area, which is an area, within an operating area, that a reusable suborbital rocket’s instantaneous impact point may not traverse.

Although the FAA acknowledged that it had considered defining “unpopulated” and “densely” and “sparsely” populated the FAA’s space office deliberately avoided defining them until it gained experience with their application.  The notice where the FAA proposed its requirements provides considerations and guidance for an operator trying to figure out whether its operating area would be acceptable.

The FAA did consider, but does not propose to adopt, the following definitions:  Unpopulated means devoid of people.  Sparsely populated means a population density of less than 10 people per square statute mile in an area of at least one square statute mile. Densely populated areameans a census designated place, as defined by the United States Census Bureau, with a population in excess of 100,000 people, or any area with a population density in excess of 1,000 people per square statute mile and an area of at least one square statute mile. Although proposing precise definitions may be premature, the FAA offers the following observations as preliminary guidance. The term ‘‘unpopulated’’ would mean no people, period. The term ‘‘sparsely populated’’ suggests an area with a few scattered people where the risk to those few persons from the overflight of a suborbital rocket, even one being tested, would likely be negligible. The term ‘‘densely populated area’’ would have two characteristics. One would be strictly related to numbers of people, without regard to population density. Any area with 100,000 people is not a good area to test rockets. The second characteristic would be density—an area would have to be large enough to allow an applicant to find a workable operating area in certain parts of the country, but small enough to keep the risk to the people within the area negligible, given the flight constraints discussed below.

One interesting aspect of this discussion is the focus on risk.  In the FAA’s regulations governing expendable launch vehicles, the FAA sets a quantified cap on risk.  For an experimental vehicle, where some of the variables, such as a vehicle’s probability of failure, for quantifying risk are unknown, the FAA did not impose a quantifiable risk threshold.  Nonetheless, the FAA still addresses risk in the experimental context, and appears to rely upon an uncodified, qualitative standard for risk, namely, that it be negligible.  Does this mean that there is a probability of failure that the FAA assigns to experimental reusable suborbital rockets?

When it published its final rule governing experimental permits, the FAA affirmed its decision not to define the terms.  Commenters had agreed.

The Federation and XCOR agree that the FAA should not define these terms. The Federation commented that operating areas are site dependent. The Federation’s statement is true because similarly sized operating areas with identical total populations may have a different distribution of the population, leading to different risks. Likewise, how the calculations are performed may change the apparent population density.For example, there may be an area of 100 square miles, with all the population clustered in the southeast corner in a town. The density would appear to be low if the population were distributed over the whole 100 square miles. On the other hand, if the operating area were assessed in blocks of one square mile at a time, certain areas would show high density. Because the FAA wants to gain experience in assessing these questions, the FAA will define these terms on a case-by-case basis for now.

On the aviation side of the fence, under 14 C.F.R. § 91.119, the FAA addresses minimum safe altitudes over a “congested area.”  That provision states that no person may operate an aircraft “[o]ver any congested area of a city, town, or settlement, or over any open air assembly of persons, an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft.”

The first thing we notice, of course, is that the aviation and space regulations use different terminology, with the former referring to congested areas, and the latter addressing densely, unpopulated, or sparsely populated areas.  The use of different terminology indicates that the FAA means different things.  Accordingly, it is not likely that applications of one set of rules would provide precedent for the other.  More significantly, the FAA said as much when it issued a legal interpretation in 2010 addressing the meaning of a “congested area.”  Specifically, when the person requesting the interpretation asked if he could use the definitions discussed in the preamble to the proposed space regulations, the FAA replied that those definitions were discussed in relationt to the commercial space rules, arose out of  a different statute, and did not apply to the general operating and flight rules of part 91.

The converse must be true as well.  Nonetheless, the interpretation’s review of a number of situations where the FAA applied the term “congested area” might bear a look-see when setting up an operating area.  Presumably, certificated aircraft should have a higher reliability than an untested experimental, reusable suborbital rocket, suggesting that if something is too congested for the more reliable vehicle an operating area might not be sparsely populated enough for a newer vehicle.  Other variables might be in play, as well, and I’d love to hear any thoughts on the matter.

 

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The Customary Status of the Outer Space Treaty is not an All or Nothing Proposition, by Ian Perry

The following is a guest post by Ian Perry, an attorney who received a J.D. and an LL.M. in air and space law from the University of Mississippi School of Law and is pursuing a J.S.D. in space law with the University of Nebraska College of Law.  LM

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When different nations enter into agreement on a topic they may do so by a treaty in which they explicitly spell out what they have agreed to. Customary international law on the other hand, involves an implicit agreement between states, is traditionally understood to gradually form over time, and is not always codified in a treaty. Customary international law is relevant to the Outer Space Treaty because of claims that the treaty has become customary international law, which could mean that it might apply to states that have never ratified it or have withdrawn from it.[i] As the following shows, existing state practice is insufficient to make the entire Outer Space Treaty customary international law.

What is meant by customary international law? Customary international law is a kind of international common law; it is a body of rules and principles said to arise informally from the general and consistent practice of nations. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 102(2) (1987). Evidence of customary international law includes judgments and opinions of international tribunals, such as the International Court of Justice (whose judges are approved by the U.N. General Assembly and Security Council); judgments and opinions of other nations’ judicial tribunals; and scholarly writings. Id. § 103.[ii]

Customary international law may apply to a local region, to all countries, or to all countries that have not persistently objected. The amount of state practice required for a custom to form is not consistently defined in the relevant literature. Customary international law can exist in the absence of a treaty or alongside a treaty, and there are many scholars who find at least parts of the Outer Space Treaty customary international law.[iii] The fact that part of a treaty overlaps with customary international law does not necessarily mean the whole treaty is custom. Customary international law is generally described as arising out of state practice done out of a sense of legal obligation—a rule in one part of a treaty might meet this test in some situations without all parts and all applications of the treaty doing so. For example, in North Sea Continental Shelf, the International Court of Justice distinguished different types of precedent and indicated that state practice in the form of maritime delimitations between geographically opposite states provided insufficient precedent to establish a customary rule regarding lateral delimitations between adjacent states.[iv] Practice in earth orbit is not necessarily precedent for celestial bodies. One need not say that the whole Outer Space Treaty has the same status under international law. A particular provision of the Outer Space Treaty might embody customary international law with regard to activities in an area where there is more state practice (such as with regard to free movement in earth orbit), and not embody it with regard to all activities in a physically different area where there is less state practice. By way of illustration, ask the question: Do states know enough about operations on the surface of Mars to intend by compliance with the Outer Space Treaty now to give up a future right to withdraw from some of its provisions if they are found impractical there? The ICJ has found actions in coastal waters up to about 60 miles from shore to be less than sufficient to establish a norm for waters 120-200 miles from the coast.[v] Manned stations on other planets appear to be at least as distinct from earth-orbiting satellites as these different areas of the ocean are from each other. Accordingly, current state practice is generally insufficient to make even relatively long-standing implementations of the Outer Space Treaty establish customary law for all celestial bodies. Continue reading

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Lessons in the Tricky Navigation of Drafting

Every now and then it helps when you are working on something to see what happened with other things like it. As Congress, the commercial space industry, and lobbyists contemplate legislation for non-traditional private actors in outer space, it may be wise to revisit the perils of imprecision.

Look what happened to the “navigable waters of the United States” in the hands of the U.S. Army Corps of Engineers. They grew some. The Supreme Court did a fine job of describing a regulator’s first shy, then creeping, then galloping jurisdictional expansion over the course of five Presidential administrations in Rapanos v. United States by expanding what “navigable waters” mean.

The Clean Water Act requires a permit to discharge a pollutant into navigable water. Justice Scalia, with his usual verve, described the predicament that Mr. Rapanos faced starting in April 1989, when Mr. Rapanos

backfilled wetlands on a parcel of land in Michigan that he owned and sought to develop. This parcel included 54 acres of land with sometimes-saturated soil conditions. The nearest body of navigable water was 11 to 20 miles away. Regulators had informed Mr. Rapanos that his saturated fields were “waters of the United States,” 33 U. S. C. § 1362(7), that could not be filled without a permit. Twelve years of criminal and civil litigation ensued.

***

In deciding whether to grant or deny a permit, the U. S. Army Corps of Engineers (Corps) exercises the discretion of an enlightened despot, relying on such factors as “economics,” “aesthetics,” “recreation,” and “in general, the needs and welfare of the people,” 33 CFR § 320.4(a) (2004). The average applicant for an individual permit spends 788 days and $271,596 in completing the process, and the average applicant for a nationwide permit spends 313 days and $28,915—not counting costs of mitigation or design changes.

***

The enforcement proceedings against Mr. Rapanos are a small part of the immense expansion of federal regulation of land use that has occurred under the Clean Water Act—without any change in the governing statute—during the past five Presidential administrations.

***

One of the statute’s principal provisions is 33 U. S. C. § 1311(a), which provides that “the discharge of any pollutant by any person shall be unlawful.” “The discharge of a pollutant” is defined broadly to include “any addition of any pollutant to navigable waters from any point source,” § 1362(12), and “pollutant” is defined broadly to include not only traditional contaminants but also solids such as “dredged spoil, . . . rock, sand, [and] cellar dirt,” § 1362(6). And, most relevant here, the CWA defines “navigable waters” as “the waters of the United States, including the territorial seas.” § 1362(7).

(Most citations and page numbers omitted).

At first the Corps was becomingly modest in its approach, and interpreted “navigable waters” in the ordinary way, as “interstate waters that are ‘navigable in fact’ or readily susceptible of being rendered so.”  We might, perhaps, think back to steam boat captains in days of yore asking each other whether a stretch of the Mississippi was navigable or whether they’d run aground on sand bars.

Instead, as Justice Scalia informed us:

After passage of the CWA, the Corps initially adopted this traditional judicial definition for the Act’s term “navigable waters.” After a District Court enjoined these regulations as too narrow, the Corps adopted a far broader definition. The Corps’ new regulations deliberately sought to extend the definition of “the waters of the United States” to the outer limits of Congress’s commerce power.

The Corps’ current regulations interpret “the waters of the United States” to include, in addition to traditional interstate navigable waters, 33 CFR § 328.3(a)(1) (2004), “[a]ll interstate waters including interstate wetlands,” § 328.3(a)(2); “[a]ll other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce,” § 328.3(a)(3); “[t]ributaries of [such] waters,” § 328.3(a)(5); and “[w]etlands adjacent to [such] waters [and tributaries] (other than waters that are themselves wetlands),” § 328.3(a)(7). The regulation defines “adjacent” wetlands as those “bordering, contiguous [to], or neighboring” waters of the United States. § 328.3(c). It specifically provides that “[w]etlands separated from other waters of the United States by manmade dikes or barriers, natural river berms, beach dunes and the like are `adjacent wetlands.'” Ibid.

Lesson One: don’t rely on the name of the term if that’s what you really mean.  That broad definition of navigable waters as “waters of the United States” allowed the Corps endless leeway in interpreting what was meant by “navigable waters.”  The word “navigable” in the name didn’t limit the waters to those that could actually be navigated.  My own suspicion is that the drafters didn’t mean to include water in prairie potholes.  If I’m right, the better place for “navigable” would have been in the definition than in the name.

Lesson Two: don’t forget that there are other actors out there who will influence the interpretation of the language you have crafted.  It was the courts who pushed the Corps toward a more expansive approach.  The Corps went with it.  How did the courts become involved?  I would imagine an environmental group sued the Corps and won.  That broad definition gave the Corps all the room it needed to extend its reach.

Lesson Three: don’t rely on the present occupants of an agency to be there forever.  Write as if the future depended on it.  “Navigable waters” grew to include water in prairie potholes, even though no one’s going to get a rowboat in a pothole, much less a steamboat.  These changes took place over decades, but that broad definition provided the tools for the expansion from the outset.   Although the Supreme Court finally set some limits on the Corps’ reach, it took Mr. Rapanos a long time and a lot of money to be rescued.

Note for the non-lawyers:  The laws Congress writes go in the United States Code (USC).  When regulatory agencies such as the Corps or the Federal Aviation Administration issue their requirements in accordance with the law Congress wants them to administer, the agencies locate their regulations in the Code of Federal Regulations.  If there is a conflict between the United States Code and the Code of Federal Regulations, the United States Code wins because the Constitution vests the power to make laws in the Congress.  The regulatory agencies are in the Executive Branch, and are merely carrying out the directions Congress supplied through the United States Code.

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This New Ocean II

Although not all space lawyers are mesmerized by the Deep Seabed Hard Mineral Resources Act (the Deep Seabed Mineral Act), I confess that I am. Accordingly, when the Deep Seabed Mineral Act offers a model of a regulatory scheme for resources extracted from the global commons, taking a peek at new happenings under that law can prove irresistible.

Regular readers may recall that back in April of this year the National Oceanic and Atmospheric Administration asked for comments on a request for a license extension from Lockheed Martin Corporation, one of NOAA’s licensees under the Deep Seabed Mineral Act. NOAA approved the requested five-year extension of Lockheed’s exploration license. The extension maintains Lockheed’s proprietary interests but does not authorize Lockheed to conduct “at-sea exploration activities” under the license. Instead, NOAA must perform additional authorization and further environmental review before Lockheed may conduct exploration at sea.

I wondered in April whether competitors or environmental groups might file comments. Now we know. NOAA had requested comments specifically from the Department of State and the Western Pacific Fisheries Management Council. State had no objections or comments. The Council found that none of the fisheries under its jurisdiction would be affected by the onshore activities Lockheed described in its request and did not object to the extension. Depending on the location of the fisheries and the mining targets, the Council could theoretically object later to actual exploration.

NOAA received five other comments. A review of the docket shows they appear to come from individuals. The commenters’ objections fall into three categories: environmental, international, and claims that Lockheed failed to substantially comply with its license and application plan. One commenter objected to Lockheed’s rationales for requesting an extension, namely, that economic conditions are not ripe and that the U.S. must accede to the 1982 Law of the Sea Treaty. NOAA’s responses are available here.

What’s interesting about all the objections to the extension is that it shows that the regulatory agency, NOAA in this instance, could have found that the licensee had not substantially complied and thus denied the request for extension. This means that one’s business plans and prospects may lie outside a company’s control. To the extent that a company has not managed its relations properly with the regulator or filed only a cursory statement of its progress it may place itself at regulatory risk. Additionally, the participation of the public provides another opportunity for the throwing of monkey wrenches into the works. While such a regulatory regime is affordable for companies with the infrastructure to cater to its care and feeding, smaller companies may not have the same resources.

The commenter linked to above provides a good example of the type of comments a competitor might have filed. If someone else wanted a license to mine where the first licensee had yet to act, the new competitor might make arguments about the equities of letting a claim be hoarded rather than worked, and the regulator might be persuaded despite the investments the first company had made.

For those interested in a similar regulatory regime for space, it might be advisable to proceed with caution.

 

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Journal of Astrosociology

The Journal of Astrosociolgy is seeking manuscripts for publication in the next issue.  The Journal covers a range of social science issues addressing the relationship between humanity and outer space.  Showcasing this range, the most recent issue contains articles on  the economic feasibility of asteroid mining, boredom in space, and the space age narrative as reflected in southern music.  Check it out, and consider submitting a paper.

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