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Rachel A. Yates is a partner with the Rocky Mountain-based law firm of Holland & Hart, where she heads the firm’s aerospace practice. As a trial lawyer, Ms. Yates focuses on the defense of the aerospace industry. She sits on the FAA’s Commercial Space Transportation Advisory Committee.
“Who would like to go to the moon on a space ship?” asked Miss Rose, the second grade teacher, as her class turned a corner in the museum hall. Twenty eager hands waved in the air. “Well, that is just what we are going to do, or nearly going to do,” continued Miss Rose.
So begins Space Ship to the Moon, a 1952 children’s book by E.C. Reichert. Sixty years later, we pose the same question, and eager hands are still waving for the opportunity to travel into space. With the retirement of the Space Shuttle, NASA is encouraging commercial space transportation, in which private industry innovates and tests the technologies and conducts operations to space habitats, such as the International Space Station, in both orbital and suborbital space. In light of international obligations under the Outer Space Treaty (1967) and its companion treaties, the United States government cannot cede all operating authority to private industry, but can provide a well-defined regulatory framework that allows private industry to move into areas historically reserved to the government, such as private launch and re-entry.
The advent of commercial space transportation brings a need for a different legal framework in which to allocate responsibilities. Five states that hope to attract commercial space activities (and their economic benefits) have written laws limiting the liability of spaceflight operators. All five (Virginia, Florida, New Mexico, Texas, and Colorado) have or are developing spaceports intended for commercial traffic. These state legislatures have enacted liability laws as an added incentive to draw aerospace companies into the state. Each has used a similar approach, including requiring a written warning to spaceflight participants as a condition to waivers of, or limitations on, liability. A closer look reveals the subtle differences between the laws and the resulting variations in the protections afforded to the operators and participants.