New space activities require new regulations: The future of space travel

The global space industry has entered a period of unprecedented growth involving novel space activities that up until recently were limited to the purview of science fiction - everything from private space stations replacing the International Space Station (ISS), to in-orbit fueling and repair of space assets, to mining asteroids, to human spaceflight, to lunar and Mars landers, and beyond. California is a hotbed for the immense creativity and intense capital investment driving this development, hosting numerous leading companies in this ecosystem.

These novel space activities are made possible, in part, by launch companies driving down launch costs and accelerating launch frequency. With access to space burgeoning, what was once an exclusively government-led activity is increasingly open to commercial companies and private individuals. With these new activities come implications for safety and liability, and questions about how to appropriately regulate the activities.

As new commercial space activities emerge, the federal government is exploring a new framework for overseeing them. These novel space activities are not fully addressed within today's regulatory processes administered primarily by the Federal Aviation Administration (FAA), Federal Communications Commission (FCC), and National Oceanic and Atmospheric Administration (NOAA). While it is clear that oversight of launch falls under the FAA, communications under the FCC, and remote sensing under NOAA, the question now is: which federal agencies should have additional authority to regulate which aspects of novel commercial space activities that currently fall into regulatory gaps? This issue, known as "mission authorization," is the subject of differing proposals from the White House and from Congress, and the commercial space industry also has weighed in.

Once the exclusive domain of two superpowers during the Cold War, the last few decades have seen rapidly expanding private activity in outer space. Since the advent of international space law at the dawn of the Space Age, countries multilaterally crafted an option for private entities to operate in space through the Outer Space Treaty of 1967. Article VI of this Treaty makes countries internationally responsible for the actions of their private actors. Additionally, the Convention on International Liability for Damage Caused by Space Objects of 1972 (the Liability Convention) holds that any country that launches or procures the launching of an object into outer space is internationally liable to another party to the Outer Space Treaty, with absolute liability for damage caused by a space object on Earth, and fault-based liability for damage occurring in outer space. The United States, through various federal agencies and licensing regimes, has accordingly overseen private sector space activities by authorizing and exerting continued supervision over such activities. This framework fertilized the ground for innovative private-sector involvement in space activity in this country, whilst ensuring the U.S. maintains responsibility to other States around the world that could be impacted.

The White House proposal for updating this framework largely continues to centralize authorization and supervision of such activities with the Secretaries of Commerce and Transportation, within their existing statutory authorities, and provides new licensing authority over in-space transportation to the FAA, under the U.S. Department of Transportation, and over uninhabited space missions to NOAA under the U.S. Department of Commerce. (See the White House's United States Novel Space Activities Authorization and Supervision Framework, December 2023 and related draft legislative text Authorization and Supervision of Novel Private Sector Space Activities Act). The U.S. House has its own proposal - the Commercial Space Act of 2023 (H.R. 6131) - which would instead create a certification process for novel space activities and designate the Department of Commerce's Office of Space Commerce as the single authority responsible for the authorization and supervision certification process. Existing FCC authority to regulate spectrum and telecommunication satellites and FAA authority to regulate launch and reentry operations would not be impacted. (See Commercial Space Act of 2023, Executive Summary). Some of the optimism among private industry surrounding the House proposal is the hope that further centralizing authorization and supervision within a single office could increase efficiency by lessening the need for interagency coordination. (See "Why the White House and Congress can't see eye-to-eye on regulating commercial space" Space News, April 14, 2024.)

Although the House proposal provides potentially wide latitude for new activities, it requires companies to indemnify the United States for costs incurred by the U.S. arising from a valid claim for compensation made by another State Party under the Outer Space Treaty or Liability Convention for damage caused by a space object of the certification holder. (See Commercial Space Act of 2023, Section 80105.) When the FCC proposed a similar rule for inclusion into the space debris mediation plan that the FCC requires for private sector certifications, it drew the industry's ire. By contrast, the current regime with respect to launch is largely one involving cross-waivers of liability, with the U.S. government potentially being held liable for private activities that cause harm to other States or their own non-governmental entities under the treaty regime. It remains to be seen how, under the House proposal, companies that apply for certification would manage taking on the potentially vast liability that is newly assigned to them. Will companies pass it on to their customers, which will likely include not only for-profit enterprises, but also academia and small research institutions that may be unable to shoulder such liability? Will insurance be available?   

The White House mission authorization framework states: "The United States benefits from a thriving private space sector through increased in-space capabilities, reduced costs, strength in the global space marketplace, and job creation in multiple sectors. At the same time, the private space sector benefits from a responsive, predictable, flexible, and scalable oversight regime that facilitates innovation and balances this with safety, security, and long-term sustainability of space activities." The policy cites the need to balance economic competitiveness together with safety, security, sustainability, and responsibility. The ability of the nascent space industry surrounding novel space activity to continue to develop and thrive will depend on the path chosen, and it is a delicate balance indeed.