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Edward Hearst is CEO of Hearst Technology and Trade, a former vice president at Astra Space, and served as a deputy assistant secretary for international affairs at the Treasury Department (acting), a senior official at the Commerce and State Departments, Counsel on the House Energy and Commerce Committee and as an attorney at the FCC and Jones Day.
The Biden administration has launched a commercial space regulation initiative under the name of “mission authorization,” which is laying the groundwork for a potentially debilitating web of unnecessary regulation on the U.S. commercial space industry. Congress must act quickly to avoid the worst.
On Sept. 9, 2022, Vice President Kamala Harris, as chair of the National Space Council, requested council members to provide “a proposal for the authorization and supervision of commercial novel space activities within 180 days.” A Federal Register notice on Nov. 29 initiated that process, as well as a series of “listening sessions,” which were conducted by the National Space Council. The vice president’s six-month deadline passed, and the notice and listening sessions have been completed, so regulatory action may be imminent.
If regulatory activists can use this process to impose a new burdensome regulatory framework, the consequence will be less innovation as companies spend more on compliance and less on research and development, higher costs for taxpayers and private sector customers, and further consolidation of the industrial base as smaller companies are squeezed out by large defense contractors with large legal departments. Such new regulatory action will also hurt America’s competitive position in space versus China, as the new space race heats up.
The ostensible imperative for all this: Compliance with a 1967 United Nations Space Treaty. Creating a new burdensome regulatory regime because of this treaty is wrong on both policy and legal grounds.
On policy, we already have too much regulation of commercial space activities from a plethora of agencies, including the FAA, FCC, EPA, Fish and Wildlife, the Commerce Department, NOAA, and NASA. These organizations impose a cacophony of rules which place unnecessary burdens on America’s space entrepreneurs and inventors and go far beyond what is necessary for public safety.
America’s space policy had been heading in a positive direction. The Trump administration took a reformist approach to space, issuing five space policy directives that were improving America’s position despite bureaucratic resistance. The Trump administration created the Space Force, Space Command and the Space Development Agency (the mission of which is to ensure the Space Force has the best technology).
On the commercial side, the government increased its use of private sector launch and satellite services, with the result of increased innovation and lower costs. In 2018, American astronauts flew to space on American spacecraft for the first time since the shuttle, on a private rocket and capsule.
In Space Policy Directive 2, Trump directed the Transportation Department (which manages FAA) to “rescind or revise those regulations” on space launch and reentry to reduce their burden on industrial development, and directed other agencies to “minimize those requirements, except those necessary to protect public safety and national security.” This was the right course of action then and now.
In part because of these policies and funding, the U.S. commercial space sector blossomed. There are close to a dozen private launch companies. American business now inexpensively provides photo reconnaissance and radar imaging, previously the realm of multibillion-dollar government satellites. Such tools provide inexpensive environmental monitoring and tactically important assistance to Ukraine in its fight with Russia. Starlink, One Web, Kuiper and others are building communications satellite constellations that provide rural regions urban-level broadband. Coming are spacecraft to refuel satellites and raise their orbits.
In addition to being bad policy, a new burdensome regulatory regime is also legally unnecessary. The 1967 Outer Space Treaty is non-self-executing, meaning that it is not enforceable upon ratification, rather, it is only if and to the extent it is implemented through legislation. That means it is up to Congress to decide how to implement the language of Article VI of the Treaty, which deals with commercial space activities. Regulatory advocates reference the Treaty’s provisions on authorization and supervision of non-governmental entities as an excuse for imposing a new regulatory regime, but it is not a valid one. The U.S. has authorized and supervised space activities for decades, and whether to do more or less regulation is a policy decision, not something legally required by the Treaty.
That is why the U.S. Congress has wisely chosen over the 56 years since the treaty’s adoption not to impose a broad regulatory framework on the commercial space industry. The goals of activists, such as managing orbital debris, safety and avoiding radio interference, are laudable but are more than adequately addressed by existing rules. What is not appropriate is creating new overarching regulations and licensing requirements out of fear of problems for which have not occurred and without a cost-benefit analysis, under the guise of an international obligation that does not legally exist. Moreover, the U.S. should not take unilateral actions which put our companies at a competitive disadvantage vs. their overseas competitors.
There are important things Congress can do to improve the competitive environment for the American commercial space industry. Congress should reform the FCC’s multiyear, highly expensive process for approving new communications satellite constellations, as well as the long delays in approving applications for experimental satellites. Congress could also use this year’s FAA reauthorization legislation to lessen the burdens of that agency’s regulation of space launch. Capitol Hill could also streamline the ability of Fish and Wildlife and the EPA to block or delay launches, and for activist groups to use these agencies’ authority to use lawsuits to bog down launches. NASA’s orbital debris filing requirements could be refocused on what is truly necessary.
Congress could also reduce the regulatory barriers to improvements at our spaceports, such as that at Vandenburg Air Force Base in California, where both state and rules make building new launch facilities extraordinarily difficult. Florida Governor DeSantis deserves a great deal of credit for the important work his Administration has done through Space Florida to help the launch industry grow in Florida, including its use of Cape Canaveral.
Agencies should be given mandatory, short “shot clocks” to approve company licensing and other applications. Consolidation of regulatory authority in fewer agencies would be another positive reform, but this should only be done if the result is streamlining of regulations, not increasing them. It is a false choice to say that if we want to consolidate regulatory authority, we must impose a new regulatory regime under the Outer Space Treaty.
The Biden administration started out on the right track on space policy by continuing to use private companies to provide space services for the government and deserves recognition for continuing to supportively draw attention to ongoing innovations in the sector. While the administration shortsightedly proposed lower spending for DoD’s use of commercial space services than Congress wanted, it acquiesced (until the recent debt deal) in congressional plus ups from the president’s budgets in the annual defense spending legislation. However, this recent initiative to increase regulation under the guise of an international obligation could be very detrimental to our national interests.
We need to watch carefully what regulators do, rather than relying on what they say. Regulationists will use terms such as wanting “flexible and predictable” rules. This can be a wolf in sheep’s clothing to lull the Hill and industry into giving their interventionist actions a pass until too late.
It is worth remembering that in the discussions leading up to the Space Treaty, the Soviet Union proposed prohibiting nongovernmental activities in space, proposing that space activities be carried out “solely and exclusively by states.” It would be ironic if this Administration moved back in the direction of state control which the Johnson administration, and others, successfully defeated.
It is imperative Congress stop overzealous officials from using the space treaty as an excuse for excessive regulation and encourage the more economically and technologically rational voices in the administration. The threat deserves the full light of congressional hearings and oversight. Lawmakers must also make clear this is an area for congressional, rather than executive action. If it does not, the result could be a failure to launch the next generation of American space innovation.
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