Senate Hearing on Reopening the American Frontier

On Tuesday this week, May 23, the Senate Subcommittee on Space, Science, and Competitiveness held a hearing titled Reopening the American Frontier: Exploring How the Outer Space Treaty will Impact American Commerce and Settlement in Space. There were two panels, and I was on the first panel with my friends and colleagues Jim Dunstan of Mobius Legal Group and Matt Schaeffer, professor of law and co-director of the space, cyber and telecommunications program at the University of Nebraska’s law school. We were asked to address possible impacts of the Outer Space Treaty on the expansion of our nation’s commerce and settlement in outer space. My testimony is available here, and Professor Schaeffer’s is available here.

Mine is substantially similar to what I provided the House space subcommittee in March, but this time I emphasized more the importance of recognizing that the “harmful contamination” provisions of Article IX do not apply to private actors, and that human beings should not be treated as contaminants no matter how germy we are.

I found Jim Dunstan’s testimony particularly helpful and edifying, and strongly urge everyone to read the whole thing, but I want to highlight certain of his points. He makes some of the same points I have stressed in the past with regard to the import of Article VI’s call for authorization and supervision not being self-executing, but he has his own take on why the United States need not regulate more than it already does. The following outtakes highlight Jim’s perspectives:

  • The “authorization” and “supervision” components of Article VI are subsidiary to the overall structure of Article VI which places both the responsibility and liability for treaty violations and damages for space activities on the nation itself. A failure to either authorize or continually supervise the activities of private nationals merely increases the risk that a country might be liable for damages;

  • Article VI is not “self-executing,” meaning that the authorization and supervision language is not the “law of the land” in the United States, absent domestic legislation implementing Article VI. The case of Medellin v. Texas makes a clear distinction between treaty provisions that, by their language and nature, become the “law of the land” in the U.S., and those treaty provisions that require domestic implementation to have the force of law;

  • The Tenth Amendment (echoing the Declaration of Independence) provides the required “authorization” component of Article VI for Americans;

  • Congress has the discretion, as a matter of both international and American constitutional law, to decide how to implement its Article VI responsibility to provide “ongoing supervision” for private American actors in space;

With respect to Article VI and the previous administration’s report calling for the regulation of all U.S. missions in space he says:

The White House report notes, correctly, that some planned missions involve activity that is not currently regulated and then concludes, incorrectly, the U.S. is not meeting its obligations under Article VI. But Article VI does not, in and of itself, require any specific form of authorization and supervision—or that, in the absence of such, non-governmental activities are prohibited.

Interestingly, Jim ties treaty compliance to the fact that Article VI explicitly lays out the consequences for any lack of authorization and supervision:

 A lack of supervision is not, in and of itself, a violation of international law; it merely raises the chances that a non-governmental activity might run afoul of the OST prohibitions and that the country responsible be held liable for consequential damages because that country’s citizens seek to engage in a behavior that is a per se violation of the OST, or creates a probability that those activities will interfere with the activities of another space activity resulting in harm (e.g., orbital collision or frequency interference).  Congress now has the opportunity to decide where on that continuum of regulation it wishes to place the United States.

This might mean, as well, I’m figuring, that even a country that puts round the clock surveillance on its private actors and asks for the whole gamut of risk assessments, hazard analyses, mitigation plans, FMECAs, and FMAs before granting an authorization, may still be internationally responsible for any damage that private actor might cause. One response to this liability exposure that we’ve seen in the United States is to require launch and reentry licensees to obtain third party liability insurance under 51 U.S.C. ch. 509.

As for authorization, Jim looks to the Tenth Amendment of the Constitution:

The White House Section 108 Report also ignores the fact that in the United States, innovative outer space activities are already authorized. That authorization predates the space era by nearly 200 years. As Americans, we declared in 1776 that “[w]e hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” The Tenth Amendment to the U.S. Constitution carries through this concept when it states that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In short, absent a constitutionally consistent law prohibiting “innovative space activities,” Americans are authorized to pursue those activities. In other words, that which is not forbidden is permitted.

The above provides real food for thought, and I applaud Jim’s insights and am very glad he shared them with the subcommittee.

I don’t agree that Article IX ‘s harmful contamination provisions are self-executing or even applicable to private actors, applying as they do to “States Parties,” but I addressed that in my own testimony, as linked above.

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Senate Space Subcommittee Hearing

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.

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Podcast for Hotel Mars Now Available

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.

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Testimony to House Space Subcommittee

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,[1] 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

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Chairman Babin on International Obligations in Space

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.

 

 

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Science Fiction, Space Law, and the Regulatory State: Or, How John Varley Broke My Heart but Other Science Fiction Writers Shouldn’t Have To

redthunder-from-amazonI 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

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