How About A Space Elevator and/or a Launch Vehicle?

Many years ago while still at the FAA I had a lovely chat with a fellow who was going to be on a legal panel about space elevators.  He wanted to know what the FAA’s legal issues might be.  Space elevators are not yet real, so our conversation was hypothetical and therefore more amusing than it might have been had we faced a live question.  As it was, we came away figuring that if you put a space elevator in the United States the FAA could probably apply some airspace rules to your structure.  As for the space regulations, we came away thinking maybe the elevator’s conductor would need a launch license.  I’ve been thinking about suborbital rockets a lot lately, and I’m now wondering if we were wrong.

First, what is a space elevator?  The International Space Elevator Consortium has some answers.  So, of course, does Wikipedia.  For a totally cool picture, go here. The ISEC describes the structure as a vertical railroad into space.  A cable, or tether, stretches from the equator on Earth to a counterweight beyond geostationary orbit.  Centrifugal force keeps the tether taut.  (Think of swinging a bucket of water in a circle around yourself.  Do you remember the centrifugal force you felt?  If you didn’t do this as a kid, now’s the time.  Stay dry, my friend.)  A space elevator may consist of a ground station to anchor the tether to the planet, electric climbing cars which can carry cargo and people to orbit, and a power source.

Argument for FAA Launch License.  Would a space elevator need an FAA launch license?  It would if 51 U.S.C. ch. 509 applied.   For Chapter 509 to apply, the elevator would have to be operated in the United States or by a U.S. citizen anywhere in the world, and its operation would have to constitute the launch of a launch vehicle or the reentry of a reentry vehicle.  Given the need for putting the ground station and tether anchor at the equator, we likely won’t see a tether rising out of Texas.  It is possible, however, that a U.S. citizen might operate a space elevator outside the United States.  That would satisfy one of the eligibility criteria.

Next, its operation would have to qualify as the launch of a launch vehicle.  What does Chapter 509 have to say about the definition of launch and “launch vehicle”?  According to 51 U.S.C. 50902, “launch means to place or try to place a launch vehicle or reentry vehicle and any payload or human being from Earth—(A) in a suborbital trajectory, (B) in Earth orbit in outer space; or (C) otherwise in outer space.”  The definition of “launch vehicle” matters, too.  “Launch vehicle” means “(A) a vehicle built to operate in, or place a payload or human beings in, outer space; and (B) a suborbital rocket.”  Arguably, the tether structure or maybe just the cars could constitute launch vehicles.  They would place payloads or human beings in outer space.  The launch would consist of the car’s ride up the tether to orbit.

An American operator might also need an FAA reentry license.  “Reenter” and “reentry” mean “to return or attempt to return, purposefully, a reentry vehicle and its payload or human beings, if any, from Earth orbit or from outer space to Earth.”  If the elevator brought people and cargo back from geostationary orbit, we could call the activity a reentry.  Is the elevator also a reentry vehicle?  Section 50902 defines 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.”  The elevator, or at least its cars, is designed to return from Earth orbit substantially intact.  If it qualifies as a launch vehicle, too, it could be called a reusable launch vehicle designed to return from Earth orbit substantially intact.  As a reentering reentry vehicle, the operator might require an FAA reentry license.

Why not an FAA launch license?  When we analyze a statute, words mean what they mean.  In reading the law, we eschew Humpty Dumpty’s approach.  When Alice objects to the estimable egg’s definition of “glory” as “there’s a nice knock-down argument for you,” Lewis Carroll let’s us in on his reasoning:

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean- neither more nor less.”

Lawyers shouldn’t follow Mr. Dumpty’s lead.  Thus, when we look at the definition of “launch vehicle,” we see that there’s a small word that throws a spanner in the works of my earlier thinking.  That word is “and”:  “Launch vehicle” means “(A) a vehicle built to operate in, or place a payload or human beings in, outer space; and (B) a suborbital rocket.” (emphasis added).  An ordinary expendable launch vehicle taking a satellite to orbit has a first stage.  I suppose that could be the suborbital rocket for the ELV.  But there’s no rocket on the space elevator.  ISEC plans to use solar power.  Sure, someone could add a rocket into a space elevator, but part of the logic behind the space elevator is to get away from rocket propulsion, so that doesn’t seem likely.  Or smart.  This brings us back to the “and.”  Under the definition, a launch vehicle must both go to outer space and be a suborbital rocket.  A space elevator would go to outer space, but it wouldn’t be a suborbital rocket. Had Congress intended rocket-less vehicles to require a license, it would have said “or” rather than “and.” Maybe the space elevator’s operation wouldn’t require a launch license.  I suspect it could still need a reentry license.

Those familiar with the FAA’s licensing practices will perhaps furrow their brows as they mentally review some of the launches the FAA has licensed.  They might have been suborbital rockets, but not all of them went anywhere near outer space.  We will leave the implications of all that as an exercise for the reader.