Private Space Regulations Have Alarming Ambiguity

Private enterprises in space have proliferated in the last few years with companies like SpaceX, Boeing, Blue Origin, and Virgin Galactic all taking part in the rapidly developing field. These projects aren’t just vanity flights either.

SpaceX has been launching and maintaining satellites and universalizing global broadband access with its Starlink system. All of these launches generate new and useful data that will inform the future of space exploration. Human beings, being naturally curious, value new frontiers to explore and develop. All of this is to say that private space exploration is here, and it’s not going anywhere. 

Despite all of this activity, there is no clear-cut regulatory framework that covers these activities. Rather, the current state of affairs is a muddled mixture of regulations centered around the UN Outer Space Treaty, adopted by the United Nations (UN) in 1966. Article VI of the treaty makes signatory states responsible for their own actions in space as well as those taken by private companies within their borders. 

This treaty is used by the Federal Aeronautics Administration (FAA) to justify regulatory action that it takes regarding space exploration by private organizations. But, as Laura Montgomery argued in a 2018 White Paper for the Mercatus Center at George Mason University, “Article VI is not self-executing. This means that it is not enforceable federal law unless Congress enacts domestic implementing Legislation.”

What this means is that current FAA regulation of the activities of private firms in space may not have real legal standing under current U.S. law.

This would have a major impact on the way that space and access to it are being exploited. As Montgomery writes, “Therefore, private actors may operate in outer space, even without authorization or supervision, and the FAA and other regulatory agencies may not rely on Article VI to attempt to deny these actors access to space.”

This fall, in a Twitter conversation about his plans to use the StarLink system to provide telecommunications to those working on the ground in Afghanistan without the use of a downlink station on the ground, Elon Musk was asked about how this would work from a regulatory perspective. He responded that “They can shake their fist at the sky”. This joke is characteristic of Musk’s attitude toward the interference of governments in his space ventures and exemplifies an attitude that is becoming increasingly pervasive among private space companies and their fans. 

Montgomery’s opinion is by no means universally accepted.

Some people argue that Article VI either does or should allow the U.S. government to effectively manage the activity of private companies in space, regardless of federal legislation to the same effect. Proponents of this position include John Goehring of the Department of Defense who responded to Montgomery’s argument with his own that the U.S. government has an obligation under the treaty to closely monitor and regulate the activities of private companies in space.

Additionally, there are those that don’t think that the Outer Space Treaty provides effective standing for the regulations that are in place, but who believe that broad-based and stringent regulations are necessary to protect both the environment and human heritage sites in space. Andrea J. Harrington of the USAF Air Command and Staff College argues in a 2019 paper that humanity’s more than fifty-year heritage of space exploration requires specific regulations to protect it. Although Harrington shares Montgomery’s view that the FAA regulations don’t have strong standing, her interpretation favors a much more regulatory approach.

But, whether or not private companies’ activities in space should be regulated, and whether or not the treaty at issue is enforceable are different questions. Unclear regulations that don’t have clear authority are unadvisable because they leave questions of legality ambiguous. Testing the proverbial waters here could invite intense and hard-to-predict legal battles. Space exploration policy is an essential enough area that working to assuage this ambiguity should be a priority.

Regardless of whether one thinks that this should be a highly regulated area of activity, or one where individual actors are free to pursue projects with limited oversight, more clarity as to the right of the FAA to regulate this activity would be prudent in order to prevent regulatory changes from taking place when projects have already been thoroughly planned and are midway through the expensive development process involved in any rockery project. Creating a regulatory process that is consistent and predictable is paramount to ensuring that companies are able to compete in as free a market as is possible. A poor regulatory environment, rife with uncertainty, is sure to lead to suboptimal outcomes. Space poses a wonderful new opportunity for discovery and innovation. Space exploration companies should be afforded a predictable regulatory environment so that they can maximize these opportunities.