On Clearing Earth’s Orbital Debris & Enforcing the Outer Space Treaty in the U.S.

“Humans will go to the outer solar system not merely to work, but to live, to love, to build, and to stay. But the irony of the life of pioneers is that if they are successful, they conquer the frontier that is their only true home, and a frontier conquered is a frontier destroyed.”

The Outer Space Treaty (“OST”), ratified in 1967, is the foundation of all international space regulation. The OST establishes space as the “province of all mankind,” and promotes the peaceful use and exploration of space for the “benefit and in the interests of all mankind.” The Treaty requires that the parties to the OST “bear international responsibility for national activities in outer space … whether such activities are carried on by governmental agencies or by non-governmental entities,” and requires that each party be “internationally liable” for damages caused by an object launched into outer space. The OST prohibits claims of “national appropriation” of both outer space and celestial bodies “by claim of sovereignty, by means of use or occupation, or by other means.” This prohibition, however, has not been deemed applicable to resources extracted from celestial bodies. In 2015, responding to a rising chorus of demand from the private space industry, Congress passed the U.S. Commercial Space Launch Competitiveness Act (“Space Act”), which “facilitate[s] commercial exploration for and commercial recovery of space resources by [U.S.] citizens.” It notes that a U.S. citizen “engaged in commercial recovery of [a] space resource … shall be entitled … to possess, own, transport and sell [that resource] in accordance with applicable law.” The Space Act exempts companies from regulatory oversight until 2023, which raises critical legal and regulatory questions.

As the Space Act recognizes, there are open questions as to who should exercise authorization and supervision over emerging commercial space activities, and what authority are required for such activities. Within this regulatory void, commercial exploration of space continues to evolve, including companies hoping to bring space resources out of orbit and back to Earth. Billionaire entrepreneurs and prominent companies, such as Google, invest in these companies, many of whom are willing to risk substantial capital now for promising returns in 20 to 50 years., as renowned astrophysicist Neil deGrasse Tyson argues, “[t]he first trillionaire there will ever be is the person who exploits the natural resources on asteroids.”

Given the hazardous, high-risk, high-reward dynamic of space-mining ventures, the privatization of title offered by the Space Act likely operates to ensure that owners internalize small and medium-scale externalities, though will likely fail to ensure that owners internalize large-scale externalities, such as the field of “orbital debris” currently encircling the Earth, which is primarily due to the profit-maximizing and “perfect externalizing machine” nature of the modern multinational corporation. The private space industry and the prospect of space-mining is creating very real and tangible legal struggles for the U.S. and the international community, as it is concerning to legal experts that these corporate entities will be paving the way and making up many of the rules as they go along. The exciting prognostications of cosmic entrepreneurialism notwithstanding, this piece will argue that outer space should be proactively defended from the laissez-faire approach that often characterized exploration and colonization here on Earth.

The purpose of this article is to demonstrate fatal flaws in how the U.S. regulates its nascent commercial space industry by examining how Federal Communications Commission (“FCC”) regulations enable the creation of orbital debris in a manner that may violate the OST, and recommend legislative language that will ensure these regulations are in compliance with the OST. This article proceeds in four parts: Part I describes the problems that orbital debris presents to all space activities. Part II details how FCC regulation of satellite mega-constellation projects, now unfurling around the Earth like an exoskeleton in Low Earth Orbit (“LEO”), likely increases the creation of orbital debris. Part III details how this FCC regulatory regime arguably violates the OST. Part IV recommends language to amend Title 51 of United States Code, which governs national and commercial space programs, with two provisions that: (1) declares outer space, including LEO orbits, to be a global commons, which could trigger the applicability of the National Environmental Policy Act (“NEPA”) to the treatment of orbital debris in LEO orbits; and (2) establishes the creation of an orbital use fee (“OUF”), which will then fund orbital debris clearing projects and research related to orbital debris removal. These amendments help operationalize the OST’s language that space faring activities be for the “benefit and in the interests of all mankind” by requiring that space-faring companies internalize their orbital debris-creating externalities.

I. Earth's Orbital Tragedy of the Commons

Currently, long-dead satellites, spent rocket stages, and other debris from outdated spacecraft remain in Earth orbits, and have been endangering space activities for decades. NASA estimates that there are approximately 27,000 pieces of orbital debris larger than a softball, 500,000 marble-sized pieces of debris, and more than 100 million pieces one millimeter or smaller, orbiting at speeds of up to 17,500 mph. At these speeds, even tiny flecks of paint can damage spacecraft. Much more debris that is too small to track, though large enough to imperil both human spaceflight and robotic missions, also remains in Earth orbits. This untracked debris can lead to potentially dangerous orbital collisions on a regular basis, which is due to the self-generating nature of orbital debris once the amount of debris in orbit reaches a critical mass. Succinctly explaining this phenomena in the New Yorker Magazine, Raffi Khatchadourian writes that:

[e]ven a minuscule shard could smash a satellite to pieces, dispersing more high-velocity debris. If the population of objects became dense enough, collisions would trigger one another in an unstoppable cascade. The fragments would grow smaller, more numerous, more uniform in direction, resembling a maelstrom of sand—a nightmare scenario that became known as the Kessler syndrome. At some point, the process would render all of near-Earth space unusable. Theoretically, Kessler mused, our planet could acquire a ring akin to Saturn’s, but made of garbage.

Simulations of the evolution of orbital debris suggest that LEO is currently in the protracted initial stages of the Kessler syndrome.

Into this debris field, companies are launching satellites at an exponential rate to build mega-constellations of communications satellites. In just two years, the number of active and defunct satellites in LEO has increased by over 50% to roughly 5,000 as of March 30, 2021. SpaceX alone launched 1,740 satellites in construction of its Starlink mega-constellation since 2019, received authorization to launch an additional 30,000 Starlink satellites by the FCC in 2021, now accounts for over half of close encounters between two spacecraft, and is projected to be involved in 90% of all close approaches. Quoting Professor Lewis’s description of the likely scenario of cascading orbital debris created by SpaceX’s Starlink mega-constellation, Pultarova writes that:

[i]n a situation when [satellite operators] are receiving alerts on a daily basis, you can’t maneuver for everything … . The maneuvers use propellant, the satellite cannot provide service. So there must be some threshold. But that means you are accepting a certain amount of risk. The problem is that at some point, you are likely to make a wrong decision.

Other multinational corporations have similar mega-constellation plans, including Amazon, OneWeb, and Telesat.

II. FCC Regulation of Satellite Mega-Constellations Incentivizes the Creation of Orbital Debris

The international legal regime governing space activities was created at a time when those activities were almost exclusively conducted by government actors. Consequently, the domestic laws implementing these international legal obligations reflect the fact that space was largely the domain of government. With corporate actors increasingly becoming involved in space activities, domestic laws must ensure that corporate space activities are properly authorized and regulated, both for domestic policy purposes and ensuring that such activities comply with international legal obligations. While the domestic legal regime is well-developed regarding established corporate activities (such as the early regulation of telephone and television satellite communications), the current proliferation of satellite mega-constellations exposes a void in this legal regime.

Regarding the allocation of geostationary orbits (“GEO”), FCC regulations implement U.S. obligations as a member of the International Telecommunications Union (“ITU”). The ITU is the United Nations treaty organization responsible for international telecommunications, including the allocation of global radio spectrum and satellite orbits. These coordination activities are underpinned by the ITU’s constitution, which reminds States “that radio frequencies and any associated orbits … are limited natural resources and that they must be used rationally, efficiently and economically … so that countries … may have equitable access to those orbits,” indicating a commons-based approach to governing GEO. However, no corresponding international rules exist for allocating LEO orbits, giving rise to the FCC’s current practice of assigning orbital shells to mega-constellations on a first-come, first-served basis.

Given the exoskeleton-like nature of mega-constellations unfurling around the Earth, and the orbital debris likely to result from their deployment, any further addition of satellites to these orbital shells could become prohibitively dangerous. Such a de facto occupation of orbital shells is arguably in violation of the OST’s language that space be the “province of all mankind,” and there be no “national appropriation” of outer space “by means of use or occupation, or by other means.” Moreover, the FCC assigns LEO orbits without either formally assessing the effects on the use of LEO orbits by other countries or the likely orbital debris-related environmental impacts to LEO orbits resulting from satellite mega-constellations. Under this legal regime, there is neither recognition by the FCC that LEO orbits are a finite resource nor that space and Earth environments are indeed connected. In this regulatory void, multiple tragedies of the commons are likely to particularly tragedies caused by orbital debris.

III. How FCC Regulatory Practices Arguably Violate the OST

As noted earlier, the OST is the foundation of all international space regulation. Furthermore, the Liability Convention was adopted to clarify the intent of Article VII of the OST. While the Liability Convention does not specifically address orbital debris, as the problem was considered “relatively exotic” at the time of its adoption, it arguably creates a remedial mechanism for orbital debris damage. However, a State is only liable for damage to another State’s space objects if “the damage is due to [the State’s] fault or the fault of persons for whom [the State] is responsible.” Moreover, it is difficult to demonstrate fault with regard to the space environment, as collecting and producing physical evidence is impossible in most instances. As such, neither the OST nor Liability Convention compellingly disincentivize debris creation in orbit.

The Space Act, which exempts companies from regulatory oversight until 2023, leaves in place the FCC’s current practice of assigning orbital shells to mega-constellations on a first-come, first-served basis, which is problematic for three reasons. First, due to the exoskeleton-like nature of mega-constellations unfurling around the Earth, and the orbital debris likely to result from their deployment, though FCC regulators are not claiming sovereignty over these orbital shells, allowing national companies to saturate them with satellites could constitute appropriation of outer space by “other means,” which is arguably in violation of Articles I, II, and IX of the OST. Second, unlike the FCC’s allocation of GEO orbits, which is limited by the ITU’s constitutional principle that “any associated orbits … are limited natural resources and that they must be used rationally, efficiently and economical,” no similar commons-based principle limits the FCC’s allocation of LEO orbits. This practice is arguably in violation of NEPA, which “requires federal agencies to take a hard look at the environmental consequences of their projects before taking action.” Third, while the FCC’s 2020 “Mitigation of Orbital Debris in the New Space Age” guidelines may appear to substantively address the cascading problems caused by orbital debris, they only require disclosure of whether mitigation plans exist, not any statement or analysis of whether the plans are effective. Responding to the National Science Foundation and Department of Energy’s request to assess the possible growth and impact of future mega-constellations on orbital debris under the FCC’s enforcement regime, a recent JASON Report found that the FCC’s guidelines:

… fall well short of what the FCC evidently thinks are required for safe traffic management in space, the new constraints on applicants are minimal … are not retroactive for existing licenses … so an applicant could meet these new FCC regulations and still suffer the catastrophic [debris creation] seen in our rate equations.

The toothlessness of these guidelines underwrite the economic incentive for satellite companies to continue viewing their orbital debris as externalities incidental to the costs of doing business.

By way of illustration, the worst known space collision in history occurred when the U.S. telecommunication satellite, Iridium 33, and Russia’s defunct military satellite, Kosmos-2251, collided and spawned over 1,000 pieces of orbital debris larger than 4 inches.Many of these fragments were then involved in further orbital incidents. Of the 95 Iridium satellites launched, 30 malfunctioned and remain stuck in LEO.When Iridium CEO Matt Desch was asked if Iridium would be willing to fund the removal of their debris, he said that it would, “for a low enough cost.” Desch somewhat jokingly floated the idea of paying $10,000 per deorbit while acknowledging, “[I] expect the cost is really in the millions or tens of millions, at which price I know it doesn’t make sense,” and argued that there is no financial incentive for removing his company’s orbital debris, explaining that “[i]ncremental ops cost saved is zero. Decreased risk to my network equals zero (all are well below). Decreased regulatory risk is zero (I spend the $$, and someone else runs into something). Removing 1 or 2 things from a catalog of 100,000 is perhaps worth only PR value.”

Professor Hugh Lewis, Head of the Aeronautics Research Group at the University of Southampton, and Europe’s leading expert on space debris, highlights the consequences of such an inadequate orbital debris mitigation regime, arguing that:

[w]e place trust in a single company to do the right thing … [and] are in a situation where most of the maneuvers we see will involve Starlink. [T]hey are the world’s biggest satellite operator, but they have only been doing that for two years so there is a certain amount of inexperience … SpaceX relies on an autonomous collision avoidance system to keep its fleet away from other spacecraft. That, however, could sometimes introduce further problems. The automatic orbital adjustments change the forecasted trajectory and, therefore, make collision predictions more complicated. Starlink doesn’t publicize all the maneuvers that they’re making … [which] causes problems for everybody else because no one knows where the satellite is going to be and what it is going to do in the next few days.

Further echoing the problems of placing singular trust in SpaceX, for example, to do the right thing in this new space age, its terms of service for beta users of its Starlink mega-constellation broadband service are revealing in this regard, as one clause provides that:

[f]or services provided on Mars, or in transit to Mars via Starship or other colonization spacecraft, the parties recognize Mars as a free planet and that no Earth-based government has authority or sovereignty over Martian activities. Accordingly, Disputes will be settled through self-governing principles, established in good faith at the time of the Martian settlement.

As failing to recognize the applicability of the OST to the planet Mars is arguably in violation of the OST, any general expectation that the company now responsible for over half of near collisions in LEOwould do the right thing is unrealistic. Accordingly, the FCC’s laissez-faire enforcement regime is in substantive need of reform in a manner that ensures compliance with the OST’s language of prohibiting claims of “national appropriation” of outer space “by other means” and promoting the peaceful use and exploration of space for the “benefit and in the interests of all mankind.”

IV. Suggested Amendments to Title 51 of the United States Code

A. Recommendation One: Amend Title 51 of United States Code to Ensure that Outer Space is Regulated as a Global Commons, which Triggers the Applicability of NEPA to the Governance of LEO Orbits Under the OST

NEPA “requires federal agencies to take a hard look at the environmental consequences of their projects before taking action.” Notably, this “hard look” extends beyond an agency’s individual actions to any actions by third parties that the agency authorizes. Moreover, if federal actions have a significant impact on the global commons, which are defined as areas in which no nation maintains exclusive jurisdiction, but in which every nation has a stake, NEPA applicability is similarly triggered. In such instances, NEPA requires the completion of an Environmental Assessmentan Environmental Impact Statement, or the classification of the action as categorically excluded from environmental review.Accordingly, Courts have applied NEPA’s requirements when federal actions occur in the global commons.

Regarding whether outer space should be considered a global commons in the context of mitigating orbital debris, Professor Robert C. Bird argues that:

[a]t its core, regulation of space debris is an environmental problem of international proportions. Emission of space debris is more likely to negatively affect the community of nations as a whole, rather than an individual state. Outer space is a classic example of a global commons, similar to the open seas. When a nation discharges space debris, it reduces the utility of the space commons for all states.

Indeed, just as the FCC finding that satellite mega-constellations are categorically excluded from NEPA review is legally dubious, the FCC’s similar disregard of viewing outer space as a global commons by merely doubting whether “alleged impacts in space are even within the scope of NEPA,” is similarly unavailing. Accordingly, the FCC’s findings need further clarification, and its seemingly laissez-faire enforcement regime is in substantive need of reform.

In support of the OST’s language establishing space as the “province of all mankind,” promoting its peaceful use and exploration for the “benefit and in the interests of all mankind,” prohibiting claims of “national appropriation” of both outer space and celestial bodies “by claim of sovereignty, by means of use or occupation, or by other means,” and requiring that parties “bear international responsibility for national activities in outer space … whether such activities are carried on by governmental agencies or by non-governmental entities,” this article’s proposed amendment to Title 51 of United States Code would read:

Title 51, of the United States Code, is amended by adding at the end the following:

Subtitle VIII – Authorization and Supervision of Nongovernmental Space Activities

CHAPTER 801—CERTIFICATION TO OPERATE SPACE OBJECTS

§ 801**. Global commons

Notwithstanding any other provision of law, outer space shall be considered a global commons.

§ 801**. Certification authority, application, and requirements

(A) The Federal Government shall presume all obligations of the United States under the Outer Space Treaty are obligations to be imputed upon United States nongovernmental entities.

(B) The Federal Government shall interpret and fulfill its international obligations under the Outer Space Treaty in a manner that ensures nongovernmental entities are in conformity with the Outer Space Treaty.

B. Recommendation Two: Amend Title 51 of United States Code to Establish an Orbital Use Fee that will Fund Orbital Debris Clearing Projects and Research Related to Orbital Debris Removal

A number of technological and regulatory solutions, such as active debris See Jeff Foust, Rocket Lab to Launch Astroscale Inspection Satellite, SpaceNews, September 23, 2021, available at https://spacenews.com/rocket-lab-to-launch-astroscale-inspection-satellite/ (describing current company projects to remove orbital debris); see also Masunaga supra note 64 (detailing private efforts to develop orbital debris removal technology); see also generally, Akhil Rao, Matthew G. Burgess, & Daniel Kaffine, Orbital-Use Fees Could More Than Quadruple the Value of the Space Industry, 23 Proceedings of the National Academy of Sciences, 117 (2020); J. Pearson, J. Carroll, E. Levin, & J. Oldson, Active debris removal: EDDE, the ElectroDynamic Debris Eliminator in Proceedings of 61st international astronautical congress (2010) and voluntary orbital debris mitigation guidelines, are currently being explored by regulatory authorities. While these efforts are important in ensuring the sustainable use of LEO orbits, they do not address the underlying incentive problem for satellite operators. Namely, they are incentivized to view both their orbital debris and the costs that it imposes on others as externalities. As such, without the internalization of these externalities, efforts to fully address the orbital debris problem will likely be ineffective. Notably, a National Academy of Sciences study found that orbital debris removal may worsen the economic damages from congestion by increasing incentives to launch. As satellite operators are prohibited from securing exclusive property rights to orbital shells under the OST, and are unlikely to recover economic damages resulting from orbital debris collisions under the Liability Convention, prospective operators “face a choice between launching profitable satellites, thereby imposing current and future collision risk on others, or not launching and leaving those profits to competitors.” This dynamic represents a classic tragedy of the commons problem.However, under Article VI of the OST, this problem can be partially solved through an OUF levied by the FCC. The monies received from this fee would then be used to fund private orbital debris clearing projects[131] and research related to orbital debris removal.

Though such an OUF may be seen as an unreasonable growth restraint on the nascent space industry, a Pew study found that in the case of nearly a dozen industries, the costs of implementing new regulations were less than estimated while the economic benefits were greater than estimated. Moreover, these regulations did not significantly impede the economic competitiveness of the industry. An OUF consistent with what this article proposes would even the playing field for commercial-satellite operators in a manner consistent with OST principlesand, as OneWeb’s founder argued, while “thoughtful, common-sense rules” likely increase operating costs for commercial-satellite operators, they protect the environment and ensure that the U.S. commercial satellite industry continues to grow. While the U.S. cannot address the issue of reducing orbital debris on its own, it can make a substantial contribution through demonstrating responsible orbital debris mitigation measures, such as those advocated in this article.

In support of the aforementioned OST language,this article’s second proposed amendment to Title 51 of United States Code would read:

Title 51, of the United States Code, is further amended by adding at the end the following:

CHAPTER 802—ADMINISTRATIVE PROVISIONS RELATED TO CERTIFICATION AND PERMITTING

§ 802XX. Orbital use fee purpose

The Administrator, in conjunction with the heads of other Federal agencies, shall take steps to fund orbital debris removal projects, technologies, and research that will enable the Administration to decrease the risks associated with orbital debris.

§ 802XX. Administrative authority

In order to carry out the responsibilities specified in this subtitle, the Secretary may impose an orbital use fee for the placement of objects in low Earth orbits on a nongovernmental entity holder of, or applicant for:

(1) a certification under chapter 801; or

(2) a permit under chapter 802.

V. Conclusion

The OST establishes space as the “province of all mankind” and promotes its peaceful use and exploration for the “benefit and in the interests of all mankind.” The OST further requires that “Parties to the Treaty … bear international responsibility for national activities in outer space … whether such activities are carried on by governmental agencies or by non-governmental entities,” and requires that each “Party to the treaty … [be] internationally liable” for damages caused by an object launched into outer space. Finally, the OST prohibits claims of “national appropriation” of both outer space and celestial bodies “by claim of sovereignty, by means of use or occupation, or by other means.”The Space Act “facilitate[s] commercial exploration for and commercial recovery of space resources by [U.S.] citizens … ” and exempts companies from regulatory oversight until 2023. However, the FCC’s laissez-faire enforcement of satellite mega-constellation projects is arguably in violation of the OST due to the saturation of these mega-constellations in LEO and their likely resulting orbital debris.

While the exploitation and use of space resources, as conceived under the Space Act, is likely two or three decades away, proactive legislation is critical for ensuring that regulations are in place to address problems that will inevitably arise, such as the debris created by harvesting asteroids in near Earth orbits. Indeed, the existing legal regime is unresponsive to both current and future problems arising from the orbital debris expanding like planetary rings of garbage around our homeworld.Consistent with the language of the OST, this article’s recommendations will help ensure that outer space not become an orbital debris strewn battle-ground for the national and corporate appropriation of orbital and celestial resources, but rather, the “province of all mankind.”