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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So You Want to Be a Space Lawyer

I receive inquiries from people, both law students and recent graduates,  interested in practicing space law. I have a pretty standard spiel, and since the semester is starting for law students, I thought now might be a good time to share. Hopefully, you haven’t selected quite all your classes yet.

Take a course in administrative law. It’s the law that governs how regulatory agencies issue regulations for different industries, how they license everything from nuclear reactors to rocket launches, and how they bring enforcement actions against malefactors such as pilots, polluters, and pesticide purveyors who do the things they do but do them wrong.

Agencies operate under legal constraints. A regulator may not just wake up one morning and start issuing rules. His agency must first propose the rules and allow time for public comment. The regulations must be clear enough that a person of ordinary intelligence can tell what is forbidden and what is required. Likewise, an agency may not simply demand money from someone who may have violated one of its regulations. It must provide the alleged violator an opportunity for a hearing. Legal procedural requirements apply to those hearings, and there are lots of cases which serve as precedent. Whether you work for a government agency or the private sector, an understanding of administrative law and the obligations and constraints it imposes on regulators is vital. It is also very interesting, because it is the law of governance and how to do it properly–so long as we set aside the sticky issue of how the regulatory agencies seem to have merged all three constitutional functions: they write laws, they carry them out, and they have their own administrative law judges.

Another good class might be one on federal procurement regulation. The U.S. government is a big customer to aerospace companies. Procurement regulations govern contracts between the U.S. government and its contractors. Also, take corporate and securities law. Start up companies will hire you young, and they need someone who can do everything.   I took public international law and the law of the sea, the former because of the Outer Space Treaties and the latter because it seemed like it might offer parallels to space. The international law turned out to be more helpful.

What if you are out of school? Get involved in one of the many space advocacy groups or a trade advocacy group such as the Satellite Industry Association or the Space Transportation Association.  There are many more.  Don’t just go to the meetings. Get involved in the working groups. Doing this will help you get to know others involved in the area, demonstrate your interest and capabilities, and let people know that you show up when you say you’re going to (that counts for a lot—really).  Also, the Manfred Lachs Space Law Moot Court Competition always needs volunteers to act as coaches and judges.

If you cannot get a job in space law itself, working in any regulatory field (think EPA, FERC, etc) helps ground you in the regulatory and legal principles that apply to federal agency regulation of space law by the FAA, the FCC, and NOAA. I started out doing telecommunications and black lung work. Both were helpful in my transition to space law.

Finally, if you are taking Constitutional law, get a hold of Robert Bork’s The Tempting of America.  It helps tremendously in realizing why that area of the law is so blindingly weird and hard to understand.  I was at sea in that class half the time, wondering where the heck the Constitution said what the Justices said it said. Bork explains all, in an annoyingly even handed way, explaining how in the country’s first century the court found economic rights that weren’t there and now the court looks for and finds other rights that may not be there.  If you read even just the first third of the book, maybe halfway through the semester so you will recognize the cases he discusses, you will be remarkably enlightened and have a much better time of it in ConLaw.  I read it decades too late, but it still helped retroactively, maybe just because it made me feel better.

UPDATE later in the day:  I forgot to mention, there are three LLM programs in space law that I know of. Canada’s McGill offers an LLM in air and space law. The University of Mississippi’s school of law also offers an LLM in air and space law.  The University of Nebraska offers an LLM degree in space, cyber, and telecommunications law, and its LLM courses are available to JD candidates. Also, there are a number of other law schools that offer classes in space law.

 

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Regulatory Agenda for Federal Acquisition Regulations

The Department of Defense, the General Services Administration and NASA jointly issue and maintain the federal acquisition regulations (popularly referred to by the cognoscenti as the FARs).  On August 24, 2017, they released their semiannual regulatory agenda.  The agenda lists proposed and final rules and long-term and completed actions.  The notice states:

This agenda provides summary descriptions of regulations being developed by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council in compliance with Executive Order 12866 ‘‘Regulatory Planning and Review.’’ This agenda is being published to allow interested persons an opportunity to participate in the rulemaking process. The Regulatory Secretariat Division has attempted to list all regulations pending at the time of publication, except for minor and routine or repetitive actions; however, unanticipated requirements may result in the issuance of regulations that are not included in this agenda. There is no legal significance to the omission of an  item from this listing.

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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 Continue reading

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Opportunities for the President and Congress to Ensure that Regulatory Agencies Do Not Improperly Use the Outer Space Treaty to Deny Access to Space or Impose Burdensome Costs

There has been a lot of discussion in the past couple of years about whether and how the Outer Space Treaty applies to private companies such as lunar habitat operators and asteroid miners, and whether these private actors may be denied access to space until Congress passes a law authorizing them.  Additionally, there is continuing discussion over whether and how the federal government may apply NASA’s planetary protection policy to private actors in space.  As discussed on this blog and as I have testified, under the law the regulatory agencies may not deny private actors access to space or impose planetary protection on private actors.  What should be done when not everyone agrees?

Solutions are available. The President by Executive Order, or the Congress through legislation, could ensure that NASA, the State Department, and the regulatory agencies do not deny private operators access to space by attempting to enforce treaty provisions that do not apply and are not self-executing.  This could be done for both Article VI of the Treaty, which requires countries who signed the treaty to authorize and continuously supervise their “non-governmental entities,” and for Article IX’s mandate to avoid harmful contamination of celestial bodies.  Its “planetary protection policy” is how NASA avoids harmful contamination from its own activities.

Because neither of these parts of the Treaty are self-executing, and because they are thus not domestically enforceable federal law, the President could ensure that regulatory agencies such as the Federal Aviation Administration, the Federal Communications Commission, and the National Oceanic and Atmospheric Administration, as well as NASA and the State Department, do not deny access to space to private operators on the basis of Articles VI or IX.  An Executive Order is a perfect vehicle for ensuring that relevant portions of the government are reminded to comply with existing law.

Congress could follow a similar approach.  It could through legislation also direct the regulators that they may not deny or attempt to deny access to space on the basis of non-self-executing treaty provisions, including both Articles VI and the harmful contamination provisions of Article IX.

Authorization and Continuing Supervision.

The FAA’s press release about its 2016 favorable payload review of Moon Express’s operation of a spacecraft and lunar vehicle shows that the FAA is attempting to enforce Article VI against private actors, even without implementing legislation from Congress.  The FAA noted that Article VI requires authorization and supervision of the activities of non-governmental entities in outer space, and that the FAA consulted with and considered comments from the Department of State. With the State Department’s concurrence, the FAA announced that because it was able to enforce the representations that Moon Express made in its application for a payload review, this particular favorable payload determination complied with Article VI.

The FAA also made sure to note, however, that not all non-traditional missions would necessarily lend themselves to such a favorable outcome, and future missions may require Congress to grant the FAA additional authority “to ensure conformity with the Outer Space Treaty.” In other words, the FAA believes it has the legal ability or obligation to deny access to space to entities not authorized and continuously supervised under current law.

Article VI of the Outer Space Treaty states:

States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.

The United States itself is in compliance with Article VI because the treaty leaves the decisions about how to comply with its rather ambiguous terms to each country. By its own terms, Article VI legally does not and cannot prohibit space operations by the commercial sector.  Instead Article VI leaves it to each country to decide which particular activities require regulation, how that regulation will be carried out, and with how much supervision. Accordingly, if Congress hasn’t said that a certain activity, such as lunar harp playing, requires authorization and continuing supervision then lunar harp playing does not.

Additionally, because Article VI is not self-executing, and because the Supreme Court in Medellin ruled that non-self-executing treaties are not domestically enforceable federal law, the agencies may not enforce this treaty provision against the private sector.  Just as in Medellin where a President could not unilaterally impose a treaty obligation on the states, regulatory agencies should not attempt to impose treaty obligations on the private sector without Congressional action.   An Executive Order could ensure that the agencies abide by this.  So could Congress by legislation.

Planetary Protection.  The harmful contamination provisions of the Treaty also call out for clarification.  Although NASA and the State Department are not regulatory agencies, they could use the consultation process of the Federal Aviation Administration’s payload review to attempt to apply NASA’s planetary protection policy, and so should be included in the directives of any Executive Order or new law.  In order to prevent such attempts, an Executive Order or a new law could note that the bulk of the Outer Space Treaty’s requirements apply to “States Parties,” and the United States and its agencies should not improperly interpret those provisions as applying to the private sector.

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Effective Date for FCC Technical Rules for DBS and BSS Satellite Services

On August 8, 2017, the Federal Communications Commission published in the Federal Register a summary of a Third Report and Order from April 2017. The FCC intends the rules  to mitigate ground-path interference between the Digital Broadcasting Satellite Service and the Broadcasting Satellite Service in the 17.3–17.8 GHz band.  For the FCC, this allows it to create an effective date for its new rules.  The FCC adopts:

new rules to mitigate interference from DBS feeder-link earth stations to BSS consumer earth terminals (ground path interference) in the 17.3–17.8 GHz band.  We adopt a rule allowing currently-licensed DBS feeder link earth stations to continue operations under the terms of their current licenses, and to expand their facilities provided that new antennas are constructed within one kilometer of current antennas and the aggregate power-flux density of the station at any point does not increase.  We adopt a methodology for new DBS feeder-link earth stations, and require applicants for new DBS feeder-link earth stations to coordinate with BSS licensees to achieve agreement on interference mitigation. We adopt rules specifying the information applicants for new DBS feeder-link earth stations must provide for the purposes of coordination.

The full report and order is available here.

Effective Date:  September 7, 2017

 

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But What About Parking Fees for Asteroids?

Space law is not exactly awash in court opinions. There are statutes. There are regulations. There are not a lot of cases. If, therefore, someone is interested in looking at property rights in space and remembers the case about the fellow who tried to charge NASA parking fees for landing on his asteroid, it behooves one to check out the actual court opinion.  There is one dismissing the fellow’s claim, and this is what I found.

The court’s dismissal of the complaint for failure to state a claim: Back in 2003, Mr. Gregory Nemitz filed a complaint against NASA for parking fees for NASA’s NEAR spacecraft landing on “his” asteroid. He alleged violations of the Fifth, Ninth, and Tenth Amendments of the Constitution, an implied breach of contract, and violation of Congress’s declaration of policy and purpose for NASA. The U.S. Government asked the court to dismiss the complaint. In his opposition to the United States’ Motion to Dismiss, Nemitz stated that “he does not seek a declaration from this Court that he has an ownership interest in” the asteroid at issue. Noting the inadequacy for “creating a property interest,” meaning establishing that he owned the asteroid, of Mr. Nemitz’s various filing under California’s Uniform Commercial Code and registration with the Archimedes Institute website, not to mention his disavowal of a request for a finding that he had a property interest, the Court held that Mr. Nemitz failed to assert a legally protectable property interest in the asteroid. Continue reading

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FAA Withdraws Notice of Proposed Rulemaking on Temporary Flight Restrictions for Space Operations

On August 2, 2017, the FAA published a notice in the Federal Register withdrawing a notice of proposed rulemaking (NPRM) it had released on September 2, 2015.  The now-withdrawn NPRM would have amended the FAA’s rules regarding temporary flight restrictions (TFRs) for space operations.  14 C.F. R. 91.143 allows the FAA to issue a notice to airmen (NOTAM) prohibiting anyone operating an aircraft under U.S. registry or any pilot flying under an FAA-issued airmen certificate from operating an aircraft in an area identified by the NOTAM.  This allows the safe recovery of spacecraft.  The NPRM proposed “to require that all aircraft—not only U.S. registered aircraft or aircraft flown by pilots using an FAA pilot certificate—were restricted from operating in airspace designated for launch, reentry, or amateur rocket operations.  The FAA noted that technological changes have resulted in an increased growth of larger amateur rockets with greater power. The NPRM would also have replaced “space flight operations” with “launch, reentry, or amateur rocker operations” to be consistent with 51 U.S.C. Chapter 509 and the FAA’s space transportation regulations.

The FAA received two comments, which appear to address unmanned aircraft, and states that it is withdrawing the NPRM for: Continue reading

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A Cornucopia at the Federal Register Last Week: New Executive Order on Manufacturing Base, Virgin’s LauncherOne, and NASA Contract Term

Last week’s Federal Register contained offerings for the space sector.

The President issued an Executive Order to assess the manufacturing and defense base, which should include the aerospace sector as one that is essential to national security.  The President is requiring the Secretary of Defense, in coordination with other agencies, to report on goods and materials essential to national security, identify the manufacturing capabilities necessary for their production, and then identify how things could go wrong in the supply chain for those goods and materials, including identifying gaps and single points of failure.  Most significantly the report calls for an assessment of the exclusive or dominant supply of good essential to national security “by or through nations that are or are likely to become unfriendly or unstable.”  Will Russian rocket engines be put on that list?  The report must recommend any “legislative, regulatory, and policy changes and other actions by the President or the heads of agencies” necessary to mitigate the problems identified by the report and shore up deficiencies.

On a separate front, the FAA has made available its  final environmental assessment for Virgin’s Launcher One.  The FAA’s notice summarizes Virgin’s plans:

The Final EA addresses the potential environmental impacts of Virgin Orbit (LauncherOne) LLC’s (L1’s) proposal to launch the LauncherOne at the Mojave Air and Space Port in Kern County, California, for purposes of transporting small satellites into a variety of Low Earth Orbits. The launch system consists of the rocket (LauncherOne) and a carrier aircraft (Boeing 747). To operate LauncherOne at the Mojave Air and Space Port, L1 must obtain a launch license from the FAA. Issuing a launch license is considered a major Federal action subject to environmental review under NEPA. Under the Proposed Action, the FAA would issue a launch license to L1 that would allow L1 to operate LauncherOne from the Mojave Air and Space Port. L1 is proposing a maximum of 115 launches over the course of the 5-year launch license.

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Space Property Rights: More Common Law than Marxism, But That’s a Good Thing

I’ve been reading a lot of law review articles recently, and I feel like sharing.  In Deploying the Common Law to Quasi-Marxist Property on Mars,  Professor Thomas E. Simmons attempts to meld ye olde common law with a Marxist view of property rights.  I’m not so sure it’s all that Marxist, but he tries to come up with something with enough Marxism to satisfy the intent of the 1967 Outer Space Treaty–which we are reminded was negotiated with the former Soviet Union–while still giving the risk takers who settle space some measure of certainty and incentive for their efforts. Continue reading

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