How bold is NEPA? Will it follow the starship Enterprise to the final frontier—outer space? Is that a major question?
The National Environmental Policy Act (NEPA) is well known for its requirement that federal agencies prepare an environmental impact statement (EIS) when carrying out, funding, or authorizing major actions that significantly affect the quality of the human environment. 42 U.S.C. § 4332(C). Litigation and commentary over the meaning of those words is vast, and new policy concerns such as climate change present new disputes over NEPA’s scope. One realm presenting new policy concerns is outer space.
Commentators began making connections between NEPA and outer space decades ago when the problem of space debris became a serious concern. See Jennifer Purvis, Note, The Long Arm of the Law?—Extraterritorial Application of U.S. Environmental Legislation to Human Activity in Outer Space, 6 Geo. Int’l Env’t L. Rev. 455 (1993–94). The space debris problem has since grown to unwieldy dimensions. The National Aeronautics and Space Administration (NASA) reports that there are approximately 23,000 pieces of debris larger than a softball orbiting the Earth and tens of millions of smaller objects, and that even tiny particles can damage a spacecraft when traveling at orbital velocities. NASA, Space Debris and Human Spacecraft (May 26, 2021). The increasing commercialization of near-Earth space—the orbital space in the vicinity of Earth—will exacerbate this risk. Nevertheless, the question of whether NEPA has any application to or in outer space has remained largely academic. If actions in space affect the human environment on terrestrial Earth, does NEPA apply? If actions on terrestrial Earth affect the space environment, does NEPA apply? If actions in space affect the space environment, does NEPA apply? Some commentators argue the answer should be yes to all of these questions. See Alexander Q. Gilbert & Monica Vidaurri, Major Federal Actions Significantly Affecting the Quality of the Space Environment: Applying NEPA to Federal and Federally Authorized Outer Space Activities, 44 U.C. Davis Environs 233 (2021). But no court has ever addressed the issue, nor do federal statutes governing commercial activities in space.
The NEPA-in-space issue came back into the spotlight in 2019 when Space Exploration Technologies (SpaceX) launched the first installment of satellites towards its planned low-orbit “megaconstellation” communications network, which ultimately will involve thousands of satellites. Unlike geostationary satellites, which remain in a fixed point in the sky when observed from Earth, these low-earth-orbit satellites move through the sky when observed from Earth and are sometimes visible to the naked eye as streaking points of light. Two federal agencies are on the front line of approving commercial telecommunications satellite launches—the Federal Aviation Administration (FAA) approves launches, and the Federal Communications Commission (FCC) approves use of the radio spectrum. See id. at 234–37. Yet neither agency prepared any NEPA analysis of the effects of the satellites on Earth or in space—the FAA limits its NEPA analysis of launches to the terrestrial environment and the FCC exempts satellites from NEPA coverage under a categorical exclusion. Id. Astronomers and “dark sky” advocates expressed concerns that the final buildout of the SpaceX and other commercial megaconstellations would adversely affect their enjoyment of the night sky. One of my Vanderbilt law students picked up on the issue and published a note that went viral. See Ramon J. Ryan, Note, The Fault in Our Stars: Challenging the FCC’s Treatment of Commercial Satellites as Categorically Excluded from Review Under the National Environmental Policy Act, 22 Vand. J. Ent. & Tech. L. 923 (2020). The NEPA-in-space issue quickly came to a boil.
One forum of debate opened up when the Council on Environmental Quality (CEQ), which issues guidelines governing how federal agencies should implement NEPA, proposed revisions to the NEPA procedures. The International Dark Sky Association urged CEQ to define human environment for purposes of NEPA to include “Earth’s orbital space” and to include within the effects that must be considered astronomical effects such as “the effects on human enjoyment of the observable dark sky, optical astronomy, radio astronomy, and space debris.” See Int’l Dark Sky Ass’n, Comments in Response to PRM: Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act (Mar. 9, 2020). The CEQ did not incorporate those suggestions in its final promulgation; indeed, it did not so much as acknowledge them. 85 Fed. Reg. 43304 (July 16, 2020).
Another battle line opened up when a competitor of SpaceX and an environmental group challenged the FCC’s application of its categorical exclusion to the SpaceX satellites. The D.C. Circuit declined to reach the merits, however, finding that neither party had established standing. See Viasat v. FCC, 47 F. 4th 769 (D.C. Cir. 2022). It thus remains the case that no court has addressed whether, and if so how, NEPA and outer space connect. Just a few months after that opinion was issued, however, the U.S. Government Accountability Office issued a report concluding that the FCC “has not sufficiently documented its decision to apply its categorical exclusion when licensing large constellations of satellites,” and the FCC agreed to review its process. See U.S. GAO, Satellite Licensing: FCC Should Reexamine Its Environmental Review Process for Large Constellation Satellites (Nov. 2022). More litigation is inevitable.
The arguments for and against applying NEPA to and in outer space, which are complex, are covered comprehensively in Gilbert & Vidaurri, supra, and cannot be improved upon here. Rather, I introduce yet another wrinkle based on a more recent event—the Supreme Court’s articulation of the Major Questions Doctrine in West Virginia v. EPA, 142 S. Ct. 2587 (2022). The Court explained the doctrine to require that when an administrative agency asserts “extraordinary grants of regulatory authority” with “vast economic and political significance,” the agency “must point to clear congressional authorization” for the power it claims.
How does this doctrine apply to the NEPA-in-space issue, particularly the assertion that the human environment for purposes of NEPA includes Earth’s orbital space? The history of the NEPA-in-space issue is one of a huge and long-standing gap in law: No statute addresses the issue; the CEQ has not directly addressed the issue; and no court has addressed the issue. NEPA is purely procedural in effect and thus not directly regulatory, but it can impose costly processes and delays on agencies and tie up agency decisions in protracted litigation. Given the expected commercial bounties to be had from further activities in space (which potentially could range from tourism to communications, in-orbit manufacturing, power generation, and mining), and given the national security interests associated with space, any agency decision to extend NEPA to actions in space arguably could have “vast economic and political significance” but would point for its congressional authorization only to NEPA’s use of the term “human environment.” Is the term “human environment” enough to conclude Congress clearly authorized CEQ to send NEPA to outer space?
This is exactly the concern the Major Questions Doctrine presents more generally: How can Congress authorize agencies to respond to problems that Congress has no idea in the present will exist in the future? The NEPA-in-space issue demonstrates how plausible it is to argue either way. On the one hand, it is unlikely that Congress when it enacted NEPA had any inkling that space 50 years later would be the next frontier of private commercial activity. That was science fiction. On the other hand, Congress likely understood then that the human environment is dynamic and did not intend to freeze it in place in 1969 for purposes of applying NEPA in the future. As humans populate space, does space naturally become part of the human environment, or must Congress speak to make it so?
The applications and impacts of the Major Questions Doctrine will occupy legal minds for years to come. As for NEPA, it may be too late for any agency to launch it into outer space—perhaps only Congress can do that after West Virginia. Alas, it remains the case that space is where no EIS has gone.
