Space Law, Separation of Powers, and Henry VIII

I don’t know a lot about UK law.  That won’t stop me from talking about it, of course, especially when it looks like the same problems visit space law on both sides of the pond, namely, questions regarding separations of powers.  In the United States we see very broadly drafted legislation in which our legislative body, the Congress, tells the agencies of the Executive Branch to license and regulate consistent with “national security” or “foreign policy” interests.  This direction cedes much legislative power to the regulatory agencies in the Executive Branch, and no one should claim surprise when its employees construe that delegation as a mandate to go farther in the exercise of their powers than Congress might have intended.

Apparently, other countries have the same problem.  In the linked story Professor Mark Elliott at Public Law for Everyone takes issue with a proposed Space Industry Bill.  The Space Industry Bill makes ‘provision about space activities and sub-orbital activities, and for connected purposes’.  Elliott considers it inappropriately broad in the powers it delegates to the Executive:

the Bill serves as nothing less than a case study in a variety of drafting techniques that are becoming increasingly common and which, individually and collectively, give rise to separation of powers concerns. It was partly for this reason that the House of Lords Constitution Committee published a report on the Bill in early September, albeit that that report did not attract quite as much attention as its latest intervention, published the previous day, in relation to the EU (Withdrawal) Bill.  There is, however, a connection between the two Bills. While the Withdrawal Bill is, without question, a uniquely egregious example of the executive seeking inappropriately broad and insufficiently controlled powers from Parliament, the Space Industry Bill serves as a more mundane example of the way in which the accretion of administrative law-making authority is becoming commonplace.

Elliott raises six concerns, one of which resembles a concern we face on this side of the Atlantic, too:  that the bill does not limit the executive’s rulemaking power.

Clause 67(1) provides that: ‘Regulations may make provision generally for carrying this Act into effect and for achieving the purpose set out in [clause] 1(1).’ And clause (1) says that the Bill has effect for the purpose of regulating space activities, sub-orbital activities, and associated activities carried out in the UK. The purpose of the Bill is thus set out in very broad terms indeed, rendering the clause 67(1) power commensurately wide. Among other things, the existence of such a power will make it relatively difficult to seek judicial review on the ground that the scope of individual powers conferred by the Bill have been exceeded. Indeed, the catch-all power in effect undercuts those limits, given that when they inconveniently apply so as to narrow specific powers in the Bill, the general power may instead be available.

Another complaint centers on the paucity of something called the affirmative procedure, where rulemaking may require the approval of both Houses of Parliament to go into effect:

while some of the regulation-making powers in the Bill are subject to the affirmative procedure, in a number of cases that procedure is required only upon the first use of the powers, subsequent uses being subject only to annulment — and so, in practice, to minimal-to-non-existent parliamentary control.

Elliott raises the concern that the executive could make regulatory changes without legislative review. The legislative review of the affirmative procedure sounds like the Congressional Review Act in the United States, although that provides for streamlining of a review process whereas the UK approach may be more fundamental.

Finally, we get to the Henry VIII power. According to the UK’s Parliament website it is quite as alarming as it sounds:

The Government sometimes adds this provision to a Bill to enable the Government to repeal or amend it after it has become an Act of Parliament. The provision enables primary legislation to be amended or repealed by subordinate legislation with or without further parliamentary scrutiny.

Such provisions are known as Henry VIII clauses, so named from the Statute of Proclamations 1539 which gave King Henry VIII power to legislate by proclamation.

How would it operate in the proposed Space Industry Bill?

the Bill provides that: ‘The Secretary of State may by regulations make provision that is consequential on any provision made by this Act.’ This broad power is a Henry VIII power because, according to clause 66(3), it can be used to ‘amend, repeal or revoke any enactment passed or made before this Act or in the same Session’. The use of Henry VIII powers normally is — and normally should — be subject to the affirmative procedure. However, this Henry VIII power is subject to that procedure only in part: it applies when regulations ‘amend’ primary legislation, but the annulment procedure applies otherwise — including, presumably, when primary legislation is repealed by regulations. It may be that ‘amend’ here is supposed to include ‘repeal’, but that seems unlikely, given that ‘amend’ and ‘repeal’ are specified separately in clause 66(3).

The professor concludes with some hope:

The fact that large volumes of delegated legislation are (deemed to be) necessary does not inevitably mean that constitutional principle [of separation of powers] must be sacrificed to the extent that it currently is. Indeed, our system, at present, is set up very poorly when it comes to the making of delegated legislation. Such legislation cannot normally be amended, meaning that it must be approved unless the nuclear option of outright rejection is to be taken; the House of Lords is subject to the threat of having its powers stripped away should it ultimately refuse to knuckle under; and Parliament in general lacks the capacity to exercise its own discretion so as to divert secondary legislation that is more than merely technical into elevated scrutiny processes.

(I think that the UK’s “delegated legislation” is somewhat akin to regulations issued by the Executive Branch in the United States.  Or, this may be another of those instances where, as Churchill or Shaw said, Great Britain and the United States are two countries separated by a common language.)

If I am reading this correctly, the UK’s proposed Space Industry Bill should receive careful scrutiny before it serves as a model for any U.S. legislation.

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Lessons in the Tricky Navigation of Drafting

Every now and then it helps when you are working on something to see what happened with other things like it. As Congress, the commercial space industry, and lobbyists contemplate legislation for non-traditional private actors in outer space, it may be wise to revisit the perils of imprecision.

Look what happened to the “navigable waters of the United States” in the hands of the U.S. Army Corps of Engineers. They grew some. The Supreme Court did a fine job of describing a regulator’s first shy, then creeping, then galloping jurisdictional expansion over the course of five Presidential administrations in Rapanos v. United States by expanding what “navigable waters” mean.

The Clean Water Act requires a permit to discharge a pollutant into navigable water. Justice Scalia, with his usual verve, described the predicament that Mr. Rapanos faced starting in April 1989, when Mr. Rapanos

backfilled wetlands on a parcel of land in Michigan that he owned and sought to develop. This parcel included 54 acres of land with sometimes-saturated soil conditions. The nearest body of navigable water was 11 to 20 miles away. Regulators had informed Mr. Rapanos that his saturated fields were “waters of the United States,” 33 U. S. C. § 1362(7), that could not be filled without a permit. Twelve years of criminal and civil litigation ensued.

***

In deciding whether to grant or deny a permit, the U. S. Army Corps of Engineers (Corps) exercises the discretion of an enlightened despot, relying on such factors as “economics,” “aesthetics,” “recreation,” and “in general, the needs and welfare of the people,” 33 CFR § 320.4(a) (2004). The average applicant for an individual permit spends 788 days and $271,596 in completing the process, and the average applicant for a nationwide permit spends 313 days and $28,915—not counting costs of mitigation or design changes.

***

The enforcement proceedings against Mr. Rapanos are a small part of the immense expansion of federal regulation of land use that has occurred under the Clean Water Act—without any change in the governing statute—during the past five Presidential administrations.

***

One of the statute’s principal provisions is 33 U. S. C. § 1311(a), which provides that “the discharge of any pollutant by any person shall be unlawful.” “The discharge of a pollutant” is defined broadly to include “any addition of any pollutant to navigable waters from any point source,” § 1362(12), and “pollutant” is defined broadly to include not only traditional contaminants but also solids such as “dredged spoil, . . . rock, sand, [and] cellar dirt,” § 1362(6). And, most relevant here, the CWA defines “navigable waters” as “the waters of the United States, including the territorial seas.” § 1362(7).

(Most citations and page numbers omitted).

At first the Corps was becomingly modest in its approach, and interpreted “navigable waters” in the ordinary way, as “interstate waters that are ‘navigable in fact’ or readily susceptible of being rendered so.”  We might, perhaps, think back to steam boat captains in days of yore asking each other whether a stretch of the Mississippi was navigable or whether they’d run aground on sand bars.

Instead, as Justice Scalia informed us:

After passage of the CWA, the Corps initially adopted this traditional judicial definition for the Act’s term “navigable waters.” After a District Court enjoined these regulations as too narrow, the Corps adopted a far broader definition. The Corps’ new regulations deliberately sought to extend the definition of “the waters of the United States” to the outer limits of Congress’s commerce power.

The Corps’ current regulations interpret “the waters of the United States” to include, in addition to traditional interstate navigable waters, 33 CFR § 328.3(a)(1) (2004), “[a]ll interstate waters including interstate wetlands,” § 328.3(a)(2); “[a]ll other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce,” § 328.3(a)(3); “[t]ributaries of [such] waters,” § 328.3(a)(5); and “[w]etlands adjacent to [such] waters [and tributaries] (other than waters that are themselves wetlands),” § 328.3(a)(7). The regulation defines “adjacent” wetlands as those “bordering, contiguous [to], or neighboring” waters of the United States. § 328.3(c). It specifically provides that “[w]etlands separated from other waters of the United States by manmade dikes or barriers, natural river berms, beach dunes and the like are `adjacent wetlands.'” Ibid.

Lesson One: don’t rely on the name of the term if that’s what you really mean.  That broad definition of navigable waters as “waters of the United States” allowed the Corps endless leeway in interpreting what was meant by “navigable waters.”  The word “navigable” in the name didn’t limit the waters to those that could actually be navigated.  My own suspicion is that the drafters didn’t mean to include water in prairie potholes.  If I’m right, the better place for “navigable” would have been in the definition than in the name.

Lesson Two: don’t forget that there are other actors out there who will influence the interpretation of the language you have crafted.  It was the courts who pushed the Corps toward a more expansive approach.  The Corps went with it.  How did the courts become involved?  I would imagine an environmental group sued the Corps and won.  That broad definition gave the Corps all the room it needed to extend its reach.

Lesson Three: don’t rely on the present occupants of an agency to be there forever.  Write as if the future depended on it.  “Navigable waters” grew to include water in prairie potholes, even though no one’s going to get a rowboat in a pothole, much less a steamboat.  These changes took place over decades, but that broad definition provided the tools for the expansion from the outset.   Although the Supreme Court finally set some limits on the Corps’ reach, it took Mr. Rapanos a long time and a lot of money to be rescued.

Note for the non-lawyers:  The laws Congress writes go in the United States Code (USC).  When regulatory agencies such as the Corps or the Federal Aviation Administration issue their requirements in accordance with the law Congress wants them to administer, the agencies locate their regulations in the Code of Federal Regulations.  If there is a conflict between the United States Code and the Code of Federal Regulations, the United States Code wins because the Constitution vests the power to make laws in the Congress.  The regulatory agencies are in the Executive Branch, and are merely carrying out the directions Congress supplied through the United States Code.

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Demonstrating Compliance with a Performance Standard

Performance standards are the new* “in” thing in the regulatory world. Everyone wants them. Everyone notes how they offer greater flexibility, greater opportunity for innovation, and greater speed in adopting new designs. Everyone wonders why they didn’t do them sooner.  When considering them, however, rule writers should keep in mind that the regulated people need to have some certainty as to what an acceptable demonstration of compliance might be.

What are these great things? In the regulatory world, performance standards are requirements that mandate satisfaction of a goal instead of requiring a specific design as the solution to a problem. Rather than saying that your time machine must carry six ounces of dilithium crystals for every fifty pounds of weight, the performance-based regulation says “Each time machine must possess sufficient power to return all occupants to the present.” The first version of the requirement envisions only one way of getting everyone back to the positive now, only one ratio, and only one acceptable power source for achieving that goal. The second approach focuses on the underlying goal, and allows any power source, any method, and any ratio so long as it works. Returning time travelers to the present has to work, because you can’t walk into today from yesterday but one second at a time, and if the time machine dumps you 24 hours earlier than now, you’ll stay there, possibly run into yourself, and create a temporal vortex in the time/space continuum. No one wants that.

The mandatory design solution is not without its admirers.  It’s very easy to administer:  if the time machine weighs 100 pounds, it better have 12 ounces of dilithium crystals powering it.  No one need perform any additional analysis.  It provides certainty.  It’s what the guy who invented the time machine used, and he always brought everyone back, except for the time that wasn’t his fault.  Lastly, the mandatory design solution forces manufacturers to ask for waivers and exemptions, so the Time Stream Administration can look at any deviations individually.

Nonetheless, there is a growing consensus that good government requires performance based standards for purposes of transparency, encouraging innovation, and avoiding unnecessary costs.  These are all virtues.

However, when it adopts performance based requirements, an agency should not lose sight of making all its requirements transparent.  There is one last requirement at issue, and it plays an important role in the whole process, namely, the demonstration of compliance.  At one end of the spectrum, we can be pretty sure the TSA won’t be satisfied with an applicant’s bald statement that his machine has enough power to bring everyone back.  At the very least, the agency will want to know the proposed power source and how it works.  What more would the agency want?  A computer model or actual real-time testing?  How many hours of testing or how many successful journeys would qualify a time machine using chewing gum as its power source?  Should an agency mandate reliability and confidence levels?  Should it put that out as guidance rather than a regulation?  If it does, will it wind up treating similar applicants differently?

Agencies don’t always put their demonstrations in their regulations.  One of the prettier performance standards I’ve seen is for human space flight.  In 14 C.F.R. § 460.5(b), the FAA requires that “[e]ach member of a flight crew [aboard a licensed or permitted launch or reentry] must demonstrate an ability to withstand the stresses of space flight, which may include high acceleration or deceleration, microgravity, and vibration, in sufficient condition to safely carry out his or her duties so that the vehicle will not harm the public.”  “In sufficient condition” to carry out one’s duties shows that a commercial flight crew member need not be a superhuman astronaut.  One might only need to retain sufficient consciousness to work the controls .  That the flight “may” include high acceleration suggests that all flights might not include that particular stress of space flight.  If a capsule gets to space via a balloon, the operator might not need to demonstrate to the FAA that the crew member can withstand high acceleration.  The requirement, in other words, is tailorable to the technology, and an applicant need only demonstrate that the crew can withstand the stresses of his particular vehicle.

However, what the regulation does not say is what a successful demonstration of compliance looks like.  Does the flight crew have to undergo the anticipated stresses?  How many times?  To what level of reliability?  Nine times out of ten?  99 times out of 100?  The answers to these questions may reveal hidden costs of the regulation.  While each applicant gets to make his case for his vehicle, operators of similar vehicles should be treated similarly.  One crew member should not be required to undergo hours of high acceleration while another one is subjected to only minutes.

Consistency and fairness suggest that these unwritten “requirements” be made public. If the FAA finds one method of demonstrating compliance acceptable for certain circumstances, it could let everyone else know by publishing that method in an advisory circular. (The Administrative Procedure Act also requires the publication of an agency’s opinions.) Then, other operators with a similar flight profile would know that they could follow that method without long talks with the agency.  Alternatively, that same operator might have something less costly in mind and could go to the FAA and makes it case for using a different demonstration.  That demonstration could also be shared.  Publication, of course, carries concerns regarding proprietary information, but those can be worked out.

None of this is to suggest that performance standards aren’t awesome.  They are, but no one should lose sight of the question of how much advance notice is necessary regarding the demonstrations of compliance.

*”New” is a relative term.  In the regulatory world, “new” can span a couple decades.

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A Request to the Regulators

How we write things matters.  How we write regulations really matters because regulations can influence design and make people spend money.  One small but important area of regulations is the definitions.  If you are going to regulate something, you need to define and identify what you are regulating.  That’s all you need to do.  After you’ve defined the object, you can impose any design requirements or operational restrictions in a different paragraph, a different section, somewhere else, just not in the definitions.

This is a nice, clean approach that avoids legal problems, brain-breaking confusion, and just plain stalling out when it’s time to administer the regulations.  Waivers and exemptions illustrate this point nicely.  Let’s say someone asks you for a waiver from a requirement.  If you’ve loaded the requirements into what should only be a description, how do you waive a definition?  You don’t.

In order to avoid pointing fingers, I will indulge my fondness for science fiction to illustrate the concern.  Let’s say that someone has invented a time machine.  As a well-informed TSA (Time Stream Administration) regulator you know that sending people back in time more than a year wreaks havoc with the space-time continuum, creates alternate timelines in which the internet is not invented and you might have to live there, and sends vast waves of energy pulsing out from the sun to engulf your home planet in radiation.  So, that’s all bad.  You don’t want to approve a time machine that travels back more than ten months because you like margin.  How do you go about it?

The right way would be to define a time machine with enough precision and clarity that the time machine operators know you are talking about their machine, but not so much that machines that don’t fit the definition but still accomplish time travel are left out.  Thus, you can say something like “a ‘time machine’ means a machine that travels forwards or backwards in time.”  This definition may require some tweaking, but it will do for now.  Then, over in a different section of the regulations you can say something like “No person may operate a time machine to travel farther back in time more than ten months.”  (I know, I know:  what if she takes it back 8 months and then another 8 months?  This post isn’t about that.  But if you want to write a guest post…..?).  This very hygienic approach avoids all sorts of problems.

Sometimes, however, regulators focus on the ultimate approval, and if you do that, you might not want to give your  approval to a time machine that will take people back to visit London in the 18th century where they’ll win the Longitude Prize years early, and then, somehow, the internet won’t get invented.  If that is your sole focus you might be tempted to define a time machine as “a machine that travels backward in time by ten months and forward in time.”  (Traveling to the future does not bring about the heat death of our home planet.  Everyone knows that.)  Please resist this temptation.  Later when someone invents a time machine that doesn’t do all the bad things you addressed in the preamble to your notice of proposed rulemaking, you might legitimately want to waive the ten-month prohibition.  Now you can’t, because it’s not a prohibition.  It’s part of the description of what a time machine is.  Also, all those other requirements and prohibitions that you put into the right place in the regulations won’t apply to time machines not meeting your definition.  This will matter if you want to approve something that’s perfectly safe without going through a whole new rulemaking.

Thus, my plea.

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The Only Thing Worse than Ambiguity: Clarity.

I’ve worked on a lot of regulations, and it seems sometimes that the only thing people hate more than vague requirements are clear ones. And vice versa.

The world offers many opportunities to be dissatisfied. Regulations are no exception, and provide the double-hit of being difficult whether they are ambiguous and flexible performance standards or prescriptively clear. Performance standards, regulations couched as flexible, open-ended standards that accommodate a variety of technological solutions, may leave a hapless regulated entity in the dark as to what an agency requires. After all, as many have noted, the ultimate performance standard consists of the admonition “Be safe.” On the other hand, if an agency starts to issue regulations that spell out prescriptive design solutions as the answer to a safety concern, the regulations lose their flexibility even as the affected industry learns precisely what the agency requires of it. But it is not necessarily the performance standards themselves that lack sufficient specificity.

A lot of the time, it’s not the standard that’s the problem, but the demonstration. Applicants for authorizations, whether for a launch license or aircraft certification, must demonstrate how they satisfy the FAA’s regulations.   If an applicant must satisfy a performance standard, the applicant may have to show the agency a lot more than if he only needs to run through a very specific checklist. If faced with a checklist, however, the applicant will have lost flexibility in designing his vehicle.

Examples of Performance Standards

The human space flight regulations in 14 C.F.R. part 460 are very performance based. For example, section 460.5, Continue reading

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