Michael Sinclair
Last week, the Trump administration released its National Space Policy, capping off what has been a revolutionary and comprehensive government-wide effort to refocus America on the stars. This effort has been so complete that it is fair to say that there has not been a similarly dedicated effort in government since the Kennedy administration and the original moon-shot. The National Aeronautics and Space Administration (NASA), led by Administrator Jim Bridenstine and the reinvigorated National Space Council within the Executive Office of the President, led by Scott Pace (under the direct supervision of Vice President Mike Pence) should be commended for their vision, advocacy, and effort to bring American space policy into the 21st century.
This document joins several other national policy pieces, including Space Policy Directive (SPD)-1 (Reinvigorating America’s Space Human Exploration Program), SPD-2 (Streamlining Regulations on the Commercial Use of Space), SPD-3 (National Space Traffic Management Policy), SPD-4 (Establishment of the United States Space Force), SPD-5 (Cybersecurity Principles for Space Systems), an executive order on encouraging international support for the recovery and use of space resources, and a presidential memorandum on the launch of spacecraft containing small nuclear systems. These domestic policy documents are likewise joined by the U.S.-led Artemis Accords, that when taken together will help establish modern customary international law norms of behavior beyond the Cold War-era provisions of the foundational Outer Space Treaty (OST). [Update: SPD-6, the National Strategy for Space Nuclear Power and Propulsion, a follow-up to the presidential memorandum, was released on December 16, 2020.]
SETTING THE TONE
There is a Starship Enterprise’s worth of interesting content and no shortage of ground-breaking ideas in these documents. They’re all definitely worth a close read if you’re even a little bit interested in space issues. And there is a good chance that this policy document will set the tone for the space-faring agencies of the federal government for at least the next few years. First, space policy requires a lot of long-term planning, including particularly to do things like establish a full-time presence on the moon or put boots on Mars. Second, the new Biden administration’s attention will likely be elsewhere, rather than on what appears on its face to be relatively non-controversial, and more importantly, non-partisan, aspirational guidance for the space community of interest.
Even if the Biden administration decided to prioritize space issues in its first 100 days (unlikely), it could do far worse than merely maintaining the vast majority of this policy direction wholesale. Indeed, it is a bit ironic that what could arguably end up being the Trump administration’s most important and successful policy achievement may also be its least Trump-y: Its space policy doesn’t seek to “own the libs,” and it more than acknowledges the value of international partnerships — it encourages them.
THE KEY DETAIL
Amid all the interesting content in the document, the most important may be buried all the way on page 22, under the title “Mission Authorization of Novel Activities.” Here, the document tasks the secretary of commerce, in coordination with the National Space Council, to:
“Identify whether any planned space activities fall beyond the scope of existing authorization and supervision processes necessary to meet international obligations;” and
“Lead, if necessary, the development of minimally burdensome, responsive, transparent, and adaptive review, authorization, and supervision processes for such activities, consistent with national security and public safety interests, with a presumption of approval and prompt appeals process.”
This tasking to the secretary of commerce, who oversees his department’s Office of Space Commerce, is going to be critically important in what is rapidly becoming a new American commercial space boom. As a striking example of this boom, on the very same day that the White House released the National Space Policy, Elon Musk’s SpaceX had what it described as a wildly successful, if not somewhat explosive test launch of its potentially game-changing “Starship” rocket, which is envisioned as a reusable vehicle that may someday take Americans to Mars. This test followed SpaceX’s historic mid-November 2020 launch of U.S. astronauts to the International Space Station, a feat that hadn’t been accomplished from U.S. soil since the Space Shuttle program ended in 2011. SpaceX plans to conduct a follow-up test of its Starship rocket shortly, and had recently also set yet another record by having two of its Dragon capsules simultaneously docked at the International Space Station.
But back to the policy document. This specific tasking to the secretary of commerce is important because the OST puts the United States government on the hook for many of the activities of U.S. commercial space. Most notably, Article 6 of the OST notes that
States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty.
Article 7, meanwhile, makes the launching state or the state that procures the launch “internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air or in outer space, including the moon and other celestial bodies.”
The treaty also requires the provision of “all possible assistance to the astronauts of other state parties” (Article 5) and contains requirements to take measures to avoid “contaminating space, the moon, and other celestial bodies” and likewise prevent “adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter” (Article 6).
It is thus completely foreseeable that increasingly numerous and increasingly bold space activities will require increasingly close federal oversight, even though the existing laws and the policy document contemplate a relatively light regulatory touch. Regardless, assessing U.S. OST commitments, identifying statutory and regulatory gaps, and then closing them is a crucial foundational step to help usher in the space boom and ensure that it is both safe and effective. This is even more critical given the prolific launch activities of American space companies, which leads to a growing risk of the United States government’s “international responsibility” for these activities, along with its growing risk of being held “internationally liable.” In short, the more actors there are doing things in space, using equipment launched from the United States, the more likely it is that the United States implicates relevant provisions of the OST — or, better put, the United States has provisions of the OST implicated for it by commercial space. This relatively simple provision in the National Space Policy Document is doing a lot of work to begin addressing this growing risk.
GAPS IN U.S. LAW
But “Mission Authorization of Novel Activities” is also more than a springboard to some arguably much-needed additional regulatory oversight of commercial space. The federal government is one of express authority. As a default rule of our federal system — and leaving aside for now the over 240-year debate over the scope of the president’s inherent, independent foreign affairs power — the executive branch generally cannot undertake an action unless Congress authorizes that action (based on Congress’ own enumerated scope of authority contained within the Constitution) and appropriates funds for it. Those funds may then only be spent by the executive branch in the purpose or manner, amount, and in the time allowed for by the Congress.
In this context, this means that despite a U.S. international legal obligation with respect to the other states parties to the OST to provide “all possible assistance to the astronauts of other state parties [in peril],” in the absence of a domestic U.S. authorizing statute, federal resources can’t be used to render that assistance. And despite the affirmative charge in the OST for states parties to prevent adverse changes to Earth’s environment caused by the introduction of extraterrestrial contaminants, no U.S. federal agency has been granted the authority and thus the responsibility of ensuring that U.S. commercial space enterprises take the necessary measures to prevent that contamination. This particular provision is made more stark because many of these commercial space entities’ business models depend on developing and fielding reusable rocket technology.
As important as it is to identify and then close these gaps in U.S. domestic law, it is perhaps of equal importance to ensure that the right government entity is assigned the statutory responsibility to act. Thus, again this seemingly simple provision betrays its importance in that it may expand the scope of responsibility of either the Department of Commerce’s Office of Space Commerce or the U.S. Space Force/Space Command beyond their existing mission spaces into the realm of space domain governance. Whether the Department of Commerce or the U.S. Space Force/Space Command wants that responsibility remains to be seen.
It is, however, becoming increasingly clear that as commercial space activities continue to advance both quantitatively and qualitatively, some U.S. government entity will need to have the authority, capability, capacity, and competency to address the full gamut of challenges these activities will provide, especially when they implicate the international legal obligations of the United States. This policy document recognizes that and takes an important first step toward providing a solution. To the extent that the Biden administration is looking to put its own mark in the development of U.S. space policy, focusing in on the space governance issues identified by this tasking to the secretary of commerce would be a great place to start.
The views expressed are the authors’ alone and do not reflect the official policy or position of the United States Coast Guard, U.S. Department of Defense, U.S. Department of Homeland Security, or the U.S. Government.
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