Regulating the Outer Limits

Space is being commercialized. There’s no doubt about it. Amazon recently received approval from the FCC to begin launching roughly 3,200 internet satellites for its Kuiper constellation, and SpaceX has put 595 of its approved 12,000 Starlink satellites into orbit. Virgin Galactic is leading the charge for a new generation of space tourists, wrapping up testing of its suborbital flights which will allow wealthy customers to peer back at Earth while floating in microgravity. / t_image

In total, the global space economy is worth over $400 billion. The big banks have turned their heads and licked their lips, and word on Wall Street is that space will blossom into a multi-trillion-dollar-industry within the next 10-20 years.

The flood of private capital into this exotic sector over the last decade is both a cause for celebration and for concern to many analysts who welcome the creative power of profit-driven actors while recognizing the need for safety standards and regulations.

“In prior eras, innovation in space was largely pushed and funded by the government,” says Todd Harrison, director of the Aerospace Security Project and Defense Budget Analysis at the Center for Strategic and International Studies.

 “Now, it’s private companies that are pushing into new space architectures, new missions, new technologies. That’s good; the government just has to figure out how to harness it.”

Private companies have been involved in space since the beginning, but their role has since changed dramatically. While in the early Space Age, corporations like Boeing and IBM, for which space was more of a side-gig, took on contracts for NASA, today a new array of players like SpaceX and Blue Origin are demonstrating the viability of business models based primarily if not exclusively on expanding humanity’s reach into the final frontier.

NASA has also surrendered much of its turf to the private sector, resulting in a kind of “creeping commercialization.” Rather than building products and selling them to the government, firms like SpaceX hold onto their property and sell services instead. Thus, in 2012 Musk’s Dragon became the first private spacecraft to dock with the ISS, and this month his Crew Dragon capsule became the first to carry astronauts into orbit.

These developments are molding a space economy in which not just governments but businesses and individuals are the consumers, and the former is increasingly left out of the picture. 

“I totally think that’s the way of the future,” says Bidushi Bhattacharya, ex-NASA scientist and CEO and founder of AstroHub. “It’s inevitable, because we’re becoming more and more dependent on space-based technology.”

The past decade saw the space industry get kicked into overdrive, and regulators will need to stay one step ahead of a fast-evolving landscape if they are to prevent abuse from corporations motivated solely by short-term profits. “Capitalism is essentially based on greed,” says Ram Jakhu, associate professor of law at McGill University and former director at the Institute of Air and Space Law. “The problem with greed is that there’s no limit. Once it goes beyond a certain point, governments step in. So, in the next five or ten years, you will see a lot of things change.”

One area where protections are needed is the environment. Companies are launching such a massive quantity of satellites into orbit that the term “mega-constellation” has been coined to describe them. SpaceX’s Starlink satellites are the prime example. 

“There’s so many of them that they’re affecting astronomical observations,” says Bhattacharya. “When you look up there with a telescope, oftentimes the satellites streak across your field of view. I wouldn’t have thought of this as an issue five years ago, but it is now.”

Early morning on Monday, November 18th, Cliff Johnson (Northwestern University) and colleagues took this image using the Dark Energy Camera on the 4-meter Blanco Telescope at the Cerro Tololo Inter-American Observatory. Nineteen Starlink satellite trails crossed the image during the six-minute exposure. The image was taken as part of the DELVE survey, which is mapping the outskirts of the Magellanic Clouds, as well as much of the southern sky in search of new dwarf galaxies orbiting the Clouds or the Milky Way.

Add onto this the issue of proper waste disposal, the growing amount of space debris, and the question of space traffic management, and keeping the space environment clean seems like a daunting task. There are no trees in space, but the term “black-void huggers” doesn’t really roll off the tongue.

One problem is that the current legal regime is outdated. The laws governing commercial space activity were written at a time when companies were generally expected to do three basic things: launches, communications, and imagery. And the regulatory framework is fragmented along such lines. “The FAA does launch and reentry, the FCC does communications, and NOAA does imagery,” Harrison explains. “But there are all sorts of new missions that fall into the gaps and don’t fit neatly into one of these regulatory processes, and that’s a risk.”

One type of mission that falls far outside the purview of the agencies is mining. 

“Who do you get a license from to mine materials on the moon?” Harrison asks. “We want to make sure they do it in a way that doesn’t mess up the environment for everyone else. There needs to be some sort of regulatory framework around it, but there’s really not.”

Space mining is a long way off, but legal and technological advances are making it a reality. The Space Act of 2015 granted U.S. companies the rights to materials extracted from asteroids in the future, and a White House executive order signed last April stressed that the United States does not consider space to be a “global commons” and intends to harvest resources on the moon, such as water ice preserved on the floors of permanently shadowed craters that can be used for rocket fuel. These policies rub up against the 1967 Outer Space Treaty, which declares that no nation can own property in space.

Property rights isn’t the only issue. If asteroid mining becomes economically viable, something that seems more likely as the cost of space operations drops with developments in reusable rockets and in-space manufacturing, then private companies could create an “asteroid rush,” sending financial markets back home into a lurch as valuable metals introduced from outside upset the equilibrium between demand and supply.

Harrison advocates a middle-ground approach to space governance. “It’s a balancing act,” he says. “You want to make the regulations tight enough that people don’t do bad things, but loose enough that companies are incentivized to bring the benefits of space to more people on Earth.” Finding this balance will be difficult, however, as the space economy becomes more globalized. Harrison cautions against a “race to the bottom” where countries relax their regulatory protections to attract foreign investment.

Presently, the space economy is relatively immature. “The industry is really fragmented, says Narayan Prasad, chief operations officer at satsearch. “Just look at the automotive or aviation industries and how diversified their supply chains are. Then look at space, and it’s like fifty years behind.”

International law is notoriously toothless, but countries with a lot of influence to throw around can pressure others into adopting similar frameworks. “When the United States regulates, other countries follow,” Jakhu says. This pattern could change, however, as China’s rise to a major space-faring superpower creates a bipolar world in which smaller states feel pressured to standardize their regulations with one regime or the other.

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