Uncommon Space

At the Galloway Symposium on December 13, 2017, Dr. Scott Pace, the Executive Secretary of the National Space Council gave a keynote address at the luncheon. The Galloway Symposium is an annual conference of space law practitioners, law professors, and other interested persons.  Amongst the many other heartening things Dr. Pace said, he explained that space is not a global commons:

Finally, many of you have heard me say this before, but it bears repeating: outer space is not a “global commons,” not the “common heritage of mankind,” not “res communis,” nor is it a public good.  These concepts are not part of the Outer Space Treaty, and the United States has consistently taken the position that these ideas do not describe the legal status of outer space.  To quote again from a U.S. statement at the 2017 COPUOS Legal Subcommittee, reference to these concepts is more distracting than it is helpful.  To unlock the promise of space, to expand the economic sphere of human activity beyond the Earth, requires that we not constrain ourselves with legal constructs that do not apply in space.

In 2015, Professor Henry Hertzeld of George Washington University and Christopher Johnson and Brian Weeden of the Secure World Foundation addressed this topic in  Simple Terms Mislead Us:  The Pitfalls of Thinking of Outer Space as a Commons.  A more comprehensive version is available here, but it may lurk behind a paywall.  In their article they discuss how we shouldn’t think of space as a commons and that what really constitutes the “province of all mankind” is not outer space itself but the activity of exploring and using it.  This was an eye opener for me.

First, they start with the text of Article I of the Outer Space Treaty, which says:

The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic and scientific development, and shall be the province of all mankind. Outer Space, including the Moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.

In explaining this language they note that it is exploration and use that is the province of all mankind:

Consequently, it is not the physical domain of outer space itself— the three dimensional expanse, beginning above airspace and extending infinitely outwards–which is the province of all mankind, but the activity itself, the “exploration and use” of outer space, which is addressed. This subtlety seems all too often lost on those whom believe that space (both void space and celestial bodies) somehow belongs to humanity. Rather, the exploration and use of space (both void space and celestial bodies) is free to be explored and used by States Parties to the treaty. Because the OST has been ratified or signed by all space-faring nations and this particular provision in Article I considered to have risen to the level of customary international law, all States across the world (and by inference, all peoples), enjoy this privilege to explore and use outer space. All too often, commentators and pundits remark that outer space itself belongs to everyone. It is in fact just the opposite. Space itself belongs to no one and the right to access, explore, and use space is granted to everyone.

They also note in passing that the Moon Treaty is of historical interest only.  The Moon Treaty serves as the source of the notion that the Moon and its natural resources are the “common heritage” of mankind.  It, however, is what the authors describe “as a failed exercise in treaty-making.”  Only 20 nations signed it, and none of those able to reach the Moon did so.

Although the authors do not provide a full description of the development and uses of the term “commons” what they describe proves helpful.  It is worth reading the whole discussion, which starts on page 5.  By Roman times, which was where all that Latin comes from, there were many forms of property:

whether property was in commercio or extra commercio, and if it was outside of commerce, whether it was res divine (in the control of the gods), res publicae (things open for public use and regulated by the government and not available for private ownership), res omnium communes (things legally not property because they were incapable of dominion and control); and res nullius, (things not possessed by an individual but capable of possession).18 Beyond these categories there are others, including various servitudes, which are similar to what we currently call easements, the right of a person to use another’s property. Similarly in English Common Law, the development of common areas was complicated…

The authors point out that outer space does not meet the criteria under which these terms apply:

all of these legal concepts of a commons need (1) a sovereign power to grant the territory to open use and to then grant whatever limited property rights are necessary for the continued existence of the commons over time, (2) an area of land or a region with well-defined borders, and (3) an economic foundation that requires or facilitates some basic human need (often food) that is more productive or efficiently performed collectively.

They note that outer space has none of these things.  Article II of the Outer Space Treaty prohibits claims of sovereignty.   Border are not well defined, and the terrestrial economy does not need outer space to survive.

Finally:

there is a logical contradiction in this discussion about outer space being treated as a commons. If a commons needs a sovereign government to grant the open territory to the use of all people, it is that government that has to oversee, regulate, and enforce that charter. Art. II of the OST prohibits national sovereignty in outer space. Thus, it is an area without a government. Even if all nations regard outer space as a “commons,” it is a very different concept from any commons that has been established in the past. There is no real legal precedent, no true means of oversight or enforcement, and therefore should not be confused with any of the many ways that concept has been applied to the territory or oceans of the Earth.

Why does all this matter?  Is it because of the tragedy of the commons (aka “the tragedy of the bunnies“)?  Or, is it because treating outer space as a commons provides a disincentive to private investment?

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FCC Adopts Final Rule for Non-Geostationary, Fixed-Satellite Service Systems

The Federal Communications Commission announced by notice in the Federal Register that it is adopting new regulations for non-geostationary, fixed-satellite service systems.  The FCC intends them to better reflect current technology and to promote operational flexibility.  The new rules go into effect January 17, 2018.  As is common with the FCC, the Federal Registers contains a summary, and the full text is available here on the FCC’s website. The full text shows that the FCC is also releasing a further notice of proposed rulemaking to address procedural matters.

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Trump Administration’s Unified Agenda for Space Transportation Regulation

The Trump Administration has released its Unified Agenda, and it contains several upcoming space transportation rulemakings.  For a description of how to navigate the Unified Agenda, go here.

Neomi Rao, the administrator of the Office of Information and Regulatory Affairs in the Office of Management and Budget, described the Administration’s regulatory goals in the Wall Street Journal:

Agencies are now expected to regulate only when explicitly authorized by law—and to follow the proper procedures. The same standards now apply to regulatory and deregulatory actions. If the government exercises its regulatory power, it should do so with fair notice and due process, and only upon a conclusion that the regulation is necessary and that the benefits of the regulation justify its costs.

Regulatory reform not only promotes individual liberty and a flourishing economy, it also supports constitutional democracy. Through OIRA’s regulatory review process, we ensure that agencies stay within the legal authority given by Congress. When the law provides discretion, we work with agencies to ensure that regulatory policy reflects presidential priorities. This executive direction makes the rule-making process democratic and accountable.

Notices of Proposed Rulemaking.  An orbital debris mitigation proposal describes the costs and benefits as around $30 million without actually identifying the mitigation measures proposed.  Since I worked on this one while I was at the FAA I will do no more than provide a link, and leave analysis and speculation as an exercise for the reader.

The FAA also proposes to clarify and streamline some regulations:

This action would revise part 413 to allow specified pre-flight operations prior to license approval, remove obsolete, non-functional, and in some cases duplicative, part 417 ground safety regulations, expand the term of a reusable launch vehicle (RLV) license (part 431) and reentry operator license (part 435) from two years to five years, and clarify the differences in the meaning of the term safety approval as referenced in parts 415 and 431.

I did not work on this project which leaves me free to note that when I originally skimmed this I thought the FAA planned to fix its part 414 safety approval regulations. Current regulations lead people to think that safety approvals may be granted more broadly than the Commercial Space Launch Act actually allows.  However, the referenced safety approvals appear to apply to licenses.  I was therefore incorrect.  The FAA calls this one deregulatory.

Another new, deregulatory proposal for risk to ships would align the FAA’s requirements in parts 417, 431, and 435, for protecting ships during launch or reentry with new practice at USAF ranges, offering operators another option for compliance. If a near real-time assessment demonstrated that the total mission risk was satisfied given the best available data on the conditions during flight launch could proceed.  It will be interesting to see if that translates into functionally dropping the risk threshold for ship hit.  Under current regulations an operator must satisfy total mission risk requirements for all three hazards AND the ship hit requirements.  If I am understanding this correctly, the FAA proposes to allow satisfaction of one requirement (total risk, which excludes ships) to remove the other (the ship hit requirement).  Perhaps “total mission risk” does not mean the risk assessed under 14 CFR 417.107(b)(1), which applies to the “total risk” of debris, toxic releases, and far field blast overpressure.  This will be interesting to read when it comes out.

The final new deregulatory proposal would update the FAA’s regulations to conform to the changes Congress made in 2015 to the Commercial Space Launch Act.  Presumably, this action would clarify that space flight participants must now enter into reciprocal waivers of claims with launch and reentry operators authorized by the FAA.   Also, it may make clear that many obligations under the FAA’s rules do not apply to government astronauts.

Final Rule.  Lastly, the Agenda projects release of a final rule.  In 2016 the FAA published “Updates to Rulemaking and Waiver Procedures and Expansion of the Equivalent Level of Safety Option.”  The Agenda states that the final rule should have come out in November of this year, so perhaps we may expect it soon.

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Change to Presidential Space Policy

In 2010, President Obama issued a National Space Policy.  This morning, the Federal Register released President Trump’s amendment to that policy.

The 2010 Policy stated that NASA shall  “set far-reaching exploration milestones,” and, by 2025, begin crewed missions beyond the moon, including to asteroids.  Also, the policy directed NASA to send humans to orbit Mars and return them safely to Earth by the mid-2030’s.

The new policy repeals that paragraph and states that NASA shall:

Lead an innovative and sustainable program of exploration with commercial and international partners to enable human expansion across the solar system and to bring back to Earth new knowledge and opportunities. Beginning with missions beyond low-Earth orbit, the United States will lead the return of humans to the Moon for long-term exploration and utilization, followed by human missions to Mars and other destinations;

The new directive does not contain dates, but it directs NASA to return people to the Moon and then on to Mars, and establishes that the lunar missions have long-term exploration and utilization as their goal.

 

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Catholic University Columbus School of Law

I will be teaching a seminar in space law at Catholic University’s Columbus School of Law starting in January.  I’m working on the syllabus.  Part of me wanted to divide things up by regulatory agencies.  However, topics are proving more natural.  Orbital debris, for example, will get its own class.  There are enough rules and guidelines about it alone.  Property rights also deserves its own session.  I will, however, devote at least two classes to the FAA’s regulation of commercial space.  It deserves no less.

 

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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.

 

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Third Party Liability Coverage for a Contractor of an FAA Launch or Reentry Licensee

Let’s suppose that you want to sell components or services to an FAA launch or reentry licensee for use during its launch or reentry. You know that a launch that goes badly wrong could create what a risk analyst calls a “high consequence event.”  You are therefore wondering whether to buy insurance for third party liability coverage or whether the licensee’s insurance could cover you if a court found you liable for contributing to any damages.  You are not alone in wondering about this.  Someone else did, too, and asked the FAA for a legal interpretation.

Orbital ATK, Inc. asked the FAA whether Orbital, in its capacity as a supplier of composite structures, payload fairings, and other launch vehicle components would need more insurance than what the law required an FAA licensed launch operator to purchase.  The Commercial Space Launch Act requires that licensed launch and reentry operators (aka “the licensee”) obtain insurance coverage for any damage a launch or reentry may cause to third parties or government property.  Although the FAA declined to advise on whether Orbital ATK should purchase additional insurance, it provided the following primer: Continue reading

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Planetary Protection Policy: Useful or Counterproductive?

Today’s post is not about law but policy. Alberto G. Fairén, a visiting scientist in astronomy at Cornell and a research scientist at Centro de Astrobiología in Spain, argues that planetary protection protocols should be revisited. Because reasonable scientists can disagree about their value and efficacy, Congress might want to think twice before requiring the private sector to follow current planetary protection protocols.

Planetary protection protocols. Article IX of the Outer Space Treaty provides that States Parties must pursue their studies and explorations so as to avoid “harmful contamination” of the moon and other celestial bodies and “adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose.” As a science agency that is part of the U.S. Government, NASA has applied this to its missions so that it not only avoids what the ordinary person might consider harmful contamination, but microbial contamination as well, limiting the presence of bacterial spores on any surface to no more than 300,000. Accordingly, NASA requires the sterilization of its spacecraft to avoid bringing microorganisms to Mars. ESA, the European Space Agency, follows similar measures.

Counterproductive?  Fairén explains the argument for protecting scientific interests through planetary protection: Continue reading

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