Establishing a Legal Framework for Deep Space Development

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As the NewSpace era gradually transitions from addressing the challenges of reaching orbit to building out the business cases for what can happen once you do, regulatory issues are going to continue to play a significant, and in many cases, enhanced role.

For those who are prone to be unhappy about seeing the advance of the human species into the solar system, particularly if they don’t have a say so on the matter, the courts may become just as important as the launch pad as companies, and in particular investors, seek a safe and predictable legal environment for pursuing business ventures which are anything but, once they blast off.

One recent example comes from Moon Express, which recently changed its plans due to uncertainty over licensing authority for what it does once it reaches the Moon.

From the Space News article on the subject:

“At issue is a provision in Article 6 of the Outer Space Treaty of 1967 that requires countries to provide “authorization and continuing supervision” of activities in space by companies and organizations under their jurisdiction. That is usually performed in the U.S. through a licensing process for launches as well as communications and Earth imaging.

However, no federal government agency has authority to oversee operations of commercial spacecraft beyond Earth orbit. That has raised concerns about how the U.S. would meet its Article 6 obligations for authorization and supervision for such missions.”

Given that it is the United States, far more than any other country which is home to entrepreneurial NewSpace companies seeking to establish new ventures beyond LEO, the U.S. has an interest in establishing a sound legal framework for those efforts.

Last year, Rep. Jim Bridenstine (R-OK), helped craft the Commercial Space Launch Competitiveness Act (CSLCA), which among other things, required the White House Office of Science and Technology Policy (OSTP) to submit a report to Congress assessing new commercial activities and recommending an approach for regulating them so as to be in accordance with the 1967 Outer Space Treaty. It’s conclusion was that the Department of Transportation should be handed that role, a finding that makes sense given that the FAA, which is a part of the DOT, is already the licensing authority for commercial space launches and landings. That is probably good news for space development firms, given that the other likely choice would have been the U.S. Department of State, a move which could have led to endless entanglement in response to other nation’s queries and objections.

The legislative vehicle for formalizing those recommendations is the American Space Renaissance Act, which is also being championed by Brindenstine, but as SpacePolicyonline reports, chances for passage this year are diminished due to the minimal work schedule Congress has allotted itself for the year.

 

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