Thread by @gilbeaq

1. Does environmental law apply to outer space?

In a new law review, @AstroTraviesa and I explore that question by evaluating whether the National Environmental Policy Act (NEPA) applies to federal and federally-authorized activities in space environs.law.ucdavis.edu/volumes/44/2/G…

2. Why does this matter? Simply put, the rise of the commercial space industry means we are on the verge of a rapid expansion of space activities – mega constellations, space tourism, private space stations, space nuclear energy, and space mining

3. As commercial and government activities pursue these activities, there is a question of how to manage the space environment. Space debris is already emerging as a leading safety/environmental threat in low earth orbit, as is light pollution from satellites impacting astronomy

4. Our paper looks specifically at whether NEPA should apply to federal agency actions, including licensing of commercial launches.

NEPA requires “all agencies" to analyze “major federal actions significantly affecting the quality of the human environment.”

5. Such analysis can either be a simple environmental assessment (EA) or more in-depth environmental impact statement (EIS). Currently we conduct both for the terrestrial parts of space activities but not the space impacts

6. Historically, federal agencies have usually interpreted the environment as not including outer space.

Rising use of space and emergent environmental conflicts are now raising the spectre of citizen lawsuits to force agency use of NEPA

7. Most immediately, Viasat is suing the FCC regarding a SpaceX license, alleging NEPA violations amongst other complaints.

Not the best case, as it is likely to be dismissed on standing, but astronomers could bring a successful case scientificamerican.com/article/spacex…

8. There are four major elements to our paper:

review of historical and prospective uses of outer space;

analysis of legislative text and history;

review of executive agency practice; and

analysis of judicial precedent

9. First, in looking at how we use space, there is strong evidence that space is part of the environment and, with more crewed missions, the human environment. This is pretty straightforward with a plain textual definition of environment

10. We then look to the legislative text. Although the text does not specify outer space as part of the environment, the language is excessively broad and inclusive. It does not define human environment and regulatory definitions could include space

11. Then we look at the history. Two elements stand out.

First, a major report prepared at the request of NEPA’s main Senate sponsor specifically identified “outer space environment” as part of national interests

12. Second, in a hearing about implementation a year after the bill was passed, multiple statements from House cosponsors indicated they believed space would be included in the EIS requirement. Occurred after passage but relevant in context

13. However, our analysis indicates that, for the most part, federal agencies do not conduct EAs or EISs for outer space activities. NASA specifically rejected requests to do so, while FCC has a categorical exclusion (per @ramonjw) scholarship.law.vanderbilt.edu/jetlaw/vol22/i…

14.We then analyzed how a court would rule re: applying NEPA to outer space. We think there are two major legal issues:

1. Is outer space a “human environment” for purposes of NEPA?
2. Does the presumption against extraterritoriality prevent application to space?

15. The first is relatively straightforward, and an analysis would resemble ours showing that space impacts humans on Earth (astronomy, navigation, services) and in space (astronauts and tourists)

15.a. as an interesting side, part of the legal dilemma and issue here is that there is not international or national legal definition of space. It doesn't have a clear boundary and, for a number of reasons, is unlikely to have

16. The second legal issue is the most likely area of challenge.

Basically, courts have created a doctrine that U.S. laws do not apply outside the U.S. unless Congress says so. Many space advocates say this precludes applying NEPA to space

17. In reviewing NEPA and extraterritoriality case law, we find that argument unpersuasive. NEPA is a law meant for federal agencies, and federal agency activities outside of other nations do not implicate the presumption

18. Further, NEPA case law has expanded its application to the three other global commons: Antarctica (EDF v. Massey), High Seas (District court cases), and Atmosphere (via greenhouse gas cases). There is no rationale to apply the presumption only to space and not those others

19. Ultimately, if a court sides with our analysis, NASA and DOD would need to do NEPA analyses for space activities, as would FAA, FCC, and DOC in regulating commercial activities. This could be a powerful tool to establish environmental governance in space

20. Many people may think this is bad, because “NEPA slows everything down.” This is not necessarily the case.
1. FAA is relatively quick at NEPA analysis
2. Most activities are more likely to be EAs than EISs
3. Agencies/companies already have 90%+ of the data required

PS1. This was a really enjoyable paper to write. Monica was an excellent coauthor and fellow researcher. We had to get library cards together to go to the Library of Congress’ law library to review electronic, paper, and microfilm records for 50-60 year old documents

PS2. It involved a cast of characters. A hearing led by John Dingell is a key part of the legislative history. Then-Circuit Court Justice Ruth Bader Ginsburg had a 1980s ruling on greenhouse gas emissions and NEPA (relevant as the atmosphere is similar to space legally)

PS3. Finally, working with the journal staff was great – they really pushed us to develop our legal arguments, especially regarding the presumption against extraterritoriality