I’ve written about this before, but–lest we forget–I thought I’d re-share this one:
The U.S. Federal Aviation Administration (FAA) licenses the launch of launch vehicles, and the reentry of reentry vehicles. It also conducts the more nebulous payload review. When it issues a license or reviews a payload, the FAA must do so consistent with public health and safety, the safety of property, national security, and foreign policy interests. Section 50905 of Title 51 of the U.S. Code says so. That’s the job Congress gave the FAA to do.
How does the FAA know what is consistent with, for example, foreign policy interests when issuing a license? Congress told the Secretary of Transportation, and by delegations the FAA, to consult with the State Department under 51 USC 50918(b):
(b) Matters Affecting Foreign Policy.—
The Secretary of Transportation shall consult with the Secretary of State on a matter under this chapter affecting foreign policy. The Secretary of State shall identify and notify the Secretary of Transportation of a foreign policy interest or obligation relevant to an activity under this chapter.
Does this mean that if State identifies a foreign policy issue with a particular launch, reentry or payload that it may require the FAA to stop it? It does not.
Note that section 50918 only requires that the FAA consult with the State Department. It does not grant Sate veto power over the FAA’s actions. After consultation, the FAA may make its own determinations when issuing a license. We know this for two reasons. The first and most important reason is that the ordinary meaning of “consult” does not mean “obey.” Additionally, unlike other statutes, section 50918 does not require “coordination,” a public response, or other more burdensome procedures. Second, the legislative history of the Commercial Space Launch Act recognizes that the FAA need not always follow the advice of the other agencies, the consultation obligation notwithstanding.
The House Committee on Science and Technology, in analyzing the precursor to the passage quoted above, stated that “The Committee anticipates that in most cases the Department will not duplicate, but will utilize the expertise that exists in other agencies.” (Emphasis added.) In other words, although the House Committee foresaw the FAA relying on State for foreign policy matters as a practical matter, the FAA does not have to defer to it in all cases.
Likewise, the Senate Report provides the same insight into what Congress meant by “consult”–namely, non-binding consultations. In commenting on the FAA’s consultation obligations when deciding when a requirement of a U.S. law not be a requirement for a license,the Senate Committee on Commerce, Science, and Transportation expected that the consultations between the FAA and the appropriate agency would be “reasonable and good faith consultations.” However, if the consultations proved unproductive, the Committee expected the Secretary of Transportation “to have the ultimate authority in establishing the regulatory framework.”
What does all this mean in practical terms? It means that neither the State Department for reasons of foreign policy, nor even the Department of Defense for reasons of national security, may act as de facto regulators of launch operators, reentry operators, or payload operators. The FAA may take their advice into account, and, indeed, must consult with them. However, if the FAA has sound reasons to disagree with the other agencies it may do so.
A quick review of NEPA cases suggests that the FAA must indeed have sound reasons to disagree with another agency. It may not simply ignore the other agency for no reason at all.