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.



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


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


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.


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.



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.