Long arm of the law will reach into the atmosphere

After decades of what appeared to be dormancy, there is increasing excitement about the potential of the space industry due to increased access to the atmosphere and what that can unlock.

But it’s not just about exploration, dominance and dollars, but responsibility and accountability for the impacts and effects.

Space in the next decade will encompass a wide range of endeavors — from science missions to better understand Earth, its changing climate and its place in the universe, to technology development and in-space manufacturing to commercial space stations and ticketed rides.

All of this is going to require the right governance mechanisms, at the right time, for effective international cooperation to establish boundaries for responsible behavior. It will also be needed to ensure safety as well as for addressing diverse domestic issues such as workforce development, education and appropriate investment vehicles.

ASU News consulted Timiebi Aganaba, assistant professor of space and society in Arizona State University’s School for the Future of Innovation in Society, within the College of Global Futures, to discuss the current and future state of space law.

Timiebi Aganaba

Aganaba spoke to us on June 21, from Washington D.C., the day she served as a panelist for the "From Apollo to Artemis Generations: Celebrating our History and Charting our Future" forum, an event sponsored by the White House National Space Council to commemorate Black Space Week.

Note: Answers have been edited for length and clarity.

Question: What is the space industry, and what are the long-term projections?

Answer: I think this is an interesting question because there are so many facets to space and it is often unclear to people what one is talking about when we use the term “space.” If we focus on place or geography as a defining feature, activities in outer space refer to these activities with a component of the value chain that takes place using the outer space environment, customarily beginning at 100 km up. But at the heart of this are space systems, which are an infrastructure, comprised of space-based and Earth-based elements. ... A large share of the space infrastructure is funded by public sources, particularly civil and defense budgets and serves defense requirements.

There are increasing and new investments in space infrastructure for commercially driven activities since the launch of the first commercial telecommunication satellite in 1965. As reported in The Financial Times, since 2013 some $272.3 billion has been invested in the space sector by private investors, peaking to a record $47.4 billion in 2021 before returning to a more conservative level today. With this funding landscape and increasing new entrants, the sector is shifting ... toward an increasingly overlapping series of value chains with potential for spillovers to other sectors. This is driven by the increasing reliance on data in a digital age and has led to the increasing media reports and statements that one day every company will be a space company or should have a space strategy.

Concurrently, in what used to seem like science fiction, future projections for space activities include an imminent wave of in-space servicing activities — inspection, refueling and repair, a focus on training and caring for future space travelers, and a provision of infrastructure for sustainable life and normal economic activity on the moon. These new businesses are enabled by new technology, new markets and new investors. With all the innovation expected, and increased activities, invariably more waste will be the result. One of pressing concerns of space governance today is space debris and the environmental impacts on Earth.

Q: What can be done about this problem on a transnational scale?

A: It starts with some conceptual work and a shift in paradigms and mindsets. The key is looking at these two issue areas above and acknowledging that outer space is first an “environment” rather than simply a “domain.” Secondly, (there is) the importance of understanding the local impacts and stakeholders that are adversely affected. While NATO Space Policy states that “space is an inherently global environment,” its lens is obviously from a classic defense posture. The idea of broad responsibility for keeping space free of environmental hazards led to the coinage in 2001 of the term “astroenvironmentalismRyder W. Miller, Astroenvironmentalism: The case for Space Exploration as an Environmental Issue, Electronic green Journal, issue 15, 2001.” — a concept which applies values of environmentalism and preservationism to developments in space exploration, commercialization and militarization. 

The production of more waste coupled with the increased risk of damage as a result of the waste requires a legal mechanism to ensure that liability for damage of this nature is secured. ... While there is an overarching outer space liability regime established in 1979, coalescing and building consensus around new space environmental laws will be quite difficult outside of a significant triggering event. Increasing dialogue and education will get us there, but that is an important and long-term process rather than a goal.

In that case, the challenge and opportunity is to attempt to interpret the legal mechanisms that already exist in a way to get the outcome one needs. To that end, few people consider that general international law speaks to the issue of protection of the space environment indirectly, even if the specific international space law instruments that the industry focus on do not specifically address debris-causing behavior and effects.

Q: How does it look on the domestic level, in the U.S.?

A: Domestic application of this concept in the U.S. would be under the NEPA Act, which would provide relevant guidance and requirements as to how private actors should conduct their in-space activities, paying attention to the space environment. In section 201 ... the act focuses on “the environmental classes of the nation” and adds a non-exhaustive list that includes, but is not limited to, the listed options for what is an environmental class. But “space” is not listed there.

The question thus is what is “environment” for the purposes of NEPA and does space qualify, such that compliance activities such as environmental impact assessments would be needed for projects in the space environment? A case was brought to federal court attempting to address the issue of NEPA's application to satellites, however the claims were rejected. I don’t believe that it is over for good, though. This is something I have been thinking about since 2006, when I was a young lawyer at the Nigerian Space Agency.

Q: What are the challenges to space as environment concept?

A: Depending on who you talk to, it is or is not surprising to imagine that the concept of space environmentalism could face significant challenges, because such a status could have real legal implications. The NEPA Act refers specifically to “human environment.” With only a few astronauts working on space stations, is outer space really a human environment, and is (it) too onerous to regulate its use as such? I think it is vital that the idea of protecting the environment recognizes that Earth, and all systems internal to it, forms part of a greater system. In other words ... it is part of humankind’s overall environment and the potential hazardous effect of activities in outer space should be perceived in the light similar to those of other activities hazardous to the Earth’s environment.

Q: Is the future bright?

A: In the near-term future, the military is still the largest space actor. For instance, National Security Space the is now one of the fastest growing areas of the Department of Defense budget, and the Space Force funding surpasses NASA for the first time. But, in the view of the International Court of Justice in the Nuclear Weapons Advisory Opinion, the court held that, as a matter of general international law, states must take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives. 

On the private/commercial side, some jurisdictions, such as the United Kingdom, are now using “race to the top” incentives, using their licensing requirements to set standards and reward certain space sustainability practices from U.K.-registered space actors. We should expect more of this from other licensing authorities as it starts with government to encourage good behavior that safeguards the environment, thus acting in the best interest of humankind.

In the long term, the establishment of a compensation fund is increasingly used as an effective mechanism to satisfy liability. ... The fund could be contributed to by all space-faring states based on the capacity of the state and their level of space activity, as in the nuclear liability regime. If prevention of environmentally damaging activities is the focus, then contributions to the fund should be also made by all factions of the industry — particularly if one considers that the elimination of space debris calls for input from the designers, manufactures (and) operators, as well as service providers.

Top photo illustration courtesy of iStock/Getty Images.