On Tuesday, May 23, 2017, the Senate Committee on Commerce, Science, and Transportation will hold a hearing in the Subcommittee on Space, Science, and Competitiveness entitled, “Reopening the American Frontier: Exploring How the Outer Space Treaty Will Impact American Commerce and Settlement in Space.” The hearing will be held at 2:30 p.m. in room 253 of the Russell Senate Office Building and will be live streamed. I am honored to be included on the witness list and look forward to testifying.
I had a fun chat with John Batchelor and David Livingstone about the Outer Space Treaty and related issues on their show Hotel Mars. The podcast is now available on John Batchelor’s site here where I understand it will remain for a week or two. Just to be clear, I’m sure that I said the Outer Space Treaty was flexible, rather than that it contained loopholes. “Loopholes” makes something sound like a bug, not a feature. Also, the podcast is available permanently on David Livingston’s The Space Show site here.
What follows is my written testimony to the House Space Subcommittee on the role the Outer Space Treaty plays in the regulatory responsibilities of the United States. It’s long, and much of it will be familiar to regular Ground Based readers, but there are some new thoughts regarding paths forward, and it puts together what I have covered here over the past months.
Testimony of Laura Montgomery
Before the Committee on Science, Space, and Technology
Subcommittee on Space
Regulating Space: Innovation, Liberty, and International Obligations
March 8, 2017, Rayburn Building
Chairman Babin, Ranking Member Bera, and Members of the Subcommittee, thank you for inviting me to participate in this important discussion and to address the role Article VI of the Outer Space Treaty plays in the regulatory responsibilities of the United States. As someone who hopes to see people beyond Low Earth Orbit again in my lifetime, and who hopes to see commercial space operations other than launches, reentries, and communications satellites, I respectfully recommend that the United States not regulate new commercial space activities such as lunar habitats, mining, satellite servicing, or lunar beer brewing for the wrong reason: the belief that Article VI makes the United States regulate either any particular activity or all activities of U.S. citizens in outer space. Regulations already cost American industry, the economy, and the ultimate consumer upwards of four trillion dollars, according to recent research from the Mercatus Center, so we should think carefully before creating more drag on the space sector.
A misunderstanding of the Outer Space Treaty looms as possible regulatory drag, because many claim Article VI of the treaty prohibits operations in outer space unless the government authorizes and supervises—which I’ll refer to as “oversees” or “regulates”—those activities. Although Article VI states that “[t]he 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,” to interpret this as forbidding unauthorized, private space activity is wrong for three reasons. The treaty does not forbid private operators from operating in outer space. It does not say that either all or any particular activity must be authorized. And, finally, Article VI is not, under U.S. law, self-executing, which means that it does not create an obligation on the private sector unless Congress says it does.
In order to put to bed the regulatory uncertainty arising out of these misunderstandings, Congress could take a number of different approaches. The most certain and long-lasting approach, however, and the one that would reduce the opportunities for confusion, misunderstanding, and regulatory overreach, would be for Congress to prohibit any regulatory agency from denying a U.S. entity the ability to operate in outer space on the basis of Article VI. Continue reading
On February 7, 2017, at the FAA’s Commercial Space Transportation Conference, Representative Brian Babin, Chairman of the Space Subcommittee of the House Science, Space and Technology Committee spoke on how the U.S. can fulfill its international obligations for commercial actors in outer space. If you wish to read his whole speech, this link will take you there: FAA conference Feb 7 2017 . Among other topics, he addressed questions raised by Article VI. As GroundBased readers know full well, Article VI of the Outer Space Treaty states that “[t]he 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 Chairman responded to this provision in a very thoughtful fashion. First, he lays out the domestic philosophy of governing.
[T]he government’s role isn’t to give you permission to do something. The government’s role should be limited to only those areas that require its intrusion, which is a high bar. The burden of proof shouldn’t be on the individual to demonstrate the “right” to act; the burden of proof should be on the state when it seeks to restrict liberty.
In thinking about how this clear statement of philosophy might play out, I see two possible paths. In the one path, the executive branch’s agencies would recognize that because Article VI is not self-executing, and if Congress hasn’t passed a law like it did when it told the FAA to authorize launch, reentry and spaceports, then Article VI poses no barrier to any particular activity. In the second, Congress itself would pass legislation reminding everyone of that point. (I am nervous about processes where Congress would assign an agency the job of “defaulting to approval.” I suspect that was the original intent behind the FAA’s payload review, but I’m not sure it’s worked out that way. The better course might be to create a notification regime, or, better yet, to ensure that an applicant need apply for nothing to operate in outer space.)
The Chairman also discussed what he did not want to see:
[T]he Constitution places the responsibility upon Congress to make legislative determinations regarding what requires federal authorization and supervision. It should not be the case that everything anyone does in outer space requires federal approval. Article 6 grants States the discretion to decide what must be authorized to assure conformity with treaty obligations and how it is to be supervised. Transferring this authority to the executive branch raises serious concerns given how vast the scope of regulatory oversight would be.
Legislative Responsibility and Due Process. Chairman Babin raises a couple of interesting legal points with this observation. As he notes, it is Congress, not the Executive Branch that makes the legislative decisions about what requires federal oversight. Also, if the U.S. decides that more private activities in outer space require oversight, we should identify what those activities are. As the Supreme Court has said on more than one occasion, due process considerations of notice and transparency require that an ordinary person be able to tell what is forbidden and what is required. Saying everything must be authorized would be so broad as to create constant confusion. People would convince themselves that the law cannot possibly apply to playing the piccolo or anything else equally mundane. But we lawyers read the words of a law with exactitude, and if the law says everything then the law means everything. The agency charged with enforcing any such law would have to apply the words as written. Recently, we’ve seen pie in the sky and a proposal for lunar brewing. Are those activities so hazardous they require the expenditure of taxpayer resources?
Discretion. The Chairman is correct to note that the treaty “grants States the discretion to decide what must be authorized to assure conformity with treaty obligations and how it is to be supervised….” (Emphasis added). This means that a country might decide not to regulate the lunar harpist, but go all in on the lunar brewer.
The Chairman also echoes the Supreme Court in noting that, for a treaty that is not self-executing,
the executive branch, unless explicitly authorized by Congress, should not deny an American citizen the right to explore and use Outer Space. I hope that the incoming Trump Administration will closely examine this topic, because this question of how we will regulate our private sector activities is not simply academic. I believe it is one of the fundamental space policy questions of our time. America is great because it is a country where you have the freedom to create without government permission. We are all free, unless we chose, through our legislative process, to limit our freedoms.
Self-executing. As this blog has discussed, Article VI is not self-executing, which means that Congress must provide direction before the executive branch may attempt to enforce that provision. It would be wonderful indeed if the new Administration were to issue a statement recognizing that if Congress has not forbidden a space activity, then that activity is allowed, thus putting to bed the regulatory uncertainty that plagues some. Then, if an agency sought more authority over the private sector it would have to go through the usual exercise of demonstrating to Congress a real need to burden the private sector.
I read John Varley in my teens. I had a subscription to Analog, or, Galaxy, it might have been; and Varley’s short stories showed up there regularly. He was really close to Heinlein in my pantheon of favorite authors. I read The Ophiuchi Hotline when it came out, and waited eagerly for Titan and its sequels.
I grew up, I went to law school, I worked for a law firm. I changed jobs and became a space lawyer for the Federal Aviation Administration and worked on commercial space transportation issues under the Commercial Space Launch Act (CSLA). (Of course, none of the views expressed here represent those of my former employer, especially the stuff about John Varley). So, about a decade ago, when I saw Red Thunder, a really fun book about a group of young people with a secret space engine trying to get to Mars before anyone else, I was very happy to pick it up.
Reading it was just heaven, until it got to a certain point: the point where our heroes agreed amongst themselves they didn’t need much in the way of regulatory approvals, aside from getting clearance from the FAA’s Air Traffic (which, if I recall correctly, everything being secret and all, I don’t think they bothered with, but I may be wrong). But, and here’s the sad part, the characters made no mention of FAA launch licensing.
How could John Varley have let me down like this? He could talk about Air Traffic control, but not about the licensing requirements of the Commercial Space Launch Act? What was wrong with him? Did science fiction writers have no regard for the law? Michael Flynn knew about the CSLA, and its administrators showed up as petty bureaucrats in Firestar. That was cool. He was up to snuff. But John Varley? Continue reading