Kings of the High Frontier vs NASA

Could NASA use the Federal Aviation Administration’s policy review to stop a launch?

One of the problems I have with reading near-space, near-future science fiction is all that poetic license.  A poet’s license is different than a launch license.  To get a launch license you have to show the FAA that you satisfy its safety, environmental, policy, payload, and financial responsibility requirements.  To get a poet’s license, as best as I can tell, you just grab it and take it.  John Varley may have broken my heart by failing to dis properly the FAA’s space law, but Victor Koman drove me crazy by getting really close and then twisting the law so hard I had to go look it up.

In Kings of the High Frontier, which was published in the 1990’s, Koman tells of an imaginary second Shuttle disaster leading to the rise of commercial companies to compete against the monolith that is NASA.  We follow the development of a host of different entrepreneurs, from students at NYU to billionaires, from space planes to rotary rockets, as they race to beat a treaty deadline which would place all space launch capability in the hands of the United Nations.  The Department of Defense doesn’t want the entrepreneurs to make it.  NASA doesn’t want the upstarts to show the agency up.  And, most malevolently of all, the architect of the new treaty and head of a space advocacy group who wants space to stay tidy and well-planned, even if it means human space travel is always thirty years away, doesn’t want them to succeed.  In short, this is the fictional companion—or precursor—to Greg Klerkx’s Lost in Space:  The Fall of NASA.

That’s all well and good and makes for a fine plot.  Additionally, Mr. Koman did a tremendous amount of research.  The first portion of the book lovingly geeks out over each rocket design and the secrecy in which the launch vehicles are constructed.  (I like to use launching from Central Park or Washington’s Mall as examples of launch sites that would obviously fail the FAA’s risk thresholds.  Little did I know the ways around that.)  He clearly did a tremendous amount of research on the legal aspects, too, although he deploys that poetic license to suggest the FAA has no role in regulating space transportation. In the 1990’s, when this book was published, the Department of Transportation, of which the FAA is a part, administered the Commercial Space Launch Act.  However, DOT delegated that authority to the FAA in 1995, and the Office of Commercial Space Transportation and its lawyers were all moved over to the FAA.  That’s a minor error and could probably come under the Alternate Future History exception to accuracy if it weren’t for the fact that the book portrays NASA as being in charge of regulatory oversight.

NASA is not.  In real life, no one needs a license from NASA to launch a launch vehicle.  NASA is an operator.  The FAA and a couple other agencies are the regulators of commercial space activity.  Nonetheless, Mr. Koman does recognize that DOT plays a role.  Because I’m always willing to turn to the Alternate Future History explanation, I started wondering how NASA would go about trying to stop a launch under current law if we set aside the errors about who the real regulators are.

Maybe NASA could use one of the FAA’s reviews.  Under 51 U.S.C. 50918 of the Commercial Space Launch Act, which is the law where Congress tells the FAA, through DOT, that it has the authority to regulate space launch and reentry and how the agency must go about it, the FAA must consult with the Department of Defense regarding matters of national security and with the Department of State regarding foreign policy and obligations. Both those agencies must notify the FAA of any issues they identify within their purview.  Congress also tells the FAA to consult with other agencies to ensure consistent application of licensing requirements, fair treatment of license applicants, and when it’s otherwise appropriate.  The FAA took these instructions and ran with them, issuing regulations for consultations for both policy and payload reviews.  The payload review applies to a launch vehicle’s payload, so it would have applied to only one of the entrepreneurs in the novel, and then only maybe.   Let’s focus instead on the policy review.

What powers does the policy review give the other agencies?  The FAA’s regulations, where the FAA implements the Congressional law, say that the FAA will issue a policy approval to a license applicant unless a proposed launch would jeopardize U.S. national security or foreign policy interests, or international obligations of the United States.  The regulations closely track the statute, but go a little further.  When it published the current version of the policy review, the FAA separated the policy from the payload review.  This means that the policy review applies to the launch itself.  So far, so good. Koman’s entrepreneurs didn’t have payloads.  They flew themselves.  Only the policy review would apply.

The FAA’s regulation says that the FAA consults with other agencies, including NASA, “authorized to address issues” of national security, foreign policy or international obligations.  In commenting on the proposed rule, Space Access said the FAA should not consult NASA on matters NASA does not address.  The FAA said that it would continue to consult with NASA because

NASA has a long history of launching expendable launch vehicles, and currently operates the Space Shuttle.  NASA also operates a federal launch range.  NASA procures launch services from the private sector for a wide range of satellites and space probes.  Also, NASA has programs and assets that it may wish to bring to the FAA’s attention in the context of a particular launch.

Is that last statement about protecting programs and assets the money quote for Mr. Koman?  It’s not in the FAA’s regulations, but it’s in the preamble to the rules, which is where the FAA explains its rationales.  Could NASA legally have stopped one of Koman’s launches on the grounds that competition was bad for NASA?  Probably not.  First, the statute and the rules require only that the FAA “consult” with these other agencies.  The other agencies do not get veto power.  They may only bring issues to the FAA’s attention.  Although the FAA is probably going to pay close attention if the DOD has a national security problem with a North Korean launch from California, the Commercial Space Launch Act charges the FAA with encouraging, facilitating and promoting  commercial space launch and reentry by the private sector.  This second obstacle is a powerful one, and should make it highly unlikely that the FAA would try to shut down anyone “competing”  with NASA through a policy review.  Finally, section 50918 of the Commercial Space Launch Act directs the FAA to consult with other agencies to ensure consistent application of licensing requirements, fair treatment of license applicants, and when it’s otherwise appropriate.  It would hardly count as fair treatment to shut down a launch operator on the grounds that it competed with NASA.

True, the possibility of consulting as “otherwise appropriate” appears to give the FAA untrammeled discretion to consult for any reason at all and thus to stop a launch.  There are two points in answer to that:  First, it does not give the agency with whom the FAA consults authority to stop a launch, and, second, the consulted agency’s response must still comply with the rest of the law, so NASA would have to identify one of the usual topics of the FAA’s proper concern, such as safety or national security.  So, no, the last statement is not the money quote.  It’s far more likely that the FAA is referring to NASA’s interest in protecting its property from the hazards created by a particular launch.

The long and the short of it is that Kings of the High Frontier probably constitutes Alternate Future History based on the legal issues.  (By the way, and not that this is a real book review, but I enjoyed the book, especially the second half.)

About the Book Tab:  I like science fiction.  I like space law.  Law school exams consist of complicated, hypothetical situations.  Hapless law students across the nation must identify the issues they present and figure out the legal ramifications.  Some science fiction novels offer similarly helpful hypothetical situations, and they are much more fun to read.  If you go to the Book Tab you will see various novels with space law implications.  Unless they are mine, the books’ presence in the Book Tab means that they have been analyzed somewhere on this blog.  The novels I wrote fall into two categories, space opera and bourgeois science fiction with space law.  The space operas offer no legal issues.

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