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 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.
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.”