Bridenstine Drafting Legislation to Implement CSLCA Asteroid Mining Provision

Rep. Jim Bridenstine (R-OK), one of the main architects of the Commercial Space Launch Competitiveness Act (CSLCA), is drafting legislation to implement the policies prescribed in that law, especially those regarding property rights to resources mined from asteroids by U.S. companies.

Bridenstine’s legislative aide, Christopher Ingraham, discussed the implementation effort during a May 5 seminar held by the Secure World Foundation and the Alliance for Space Development on “Asteroids, Mining, and Policy: Practical Consideration of Space Resource Rights.”  Ingraham and Jim Dunstan, founder of the Mobius Legal Group, both said that the concept of asteroid mining no longer faces a “giggle factor,” but Ingraham said it does still face uncertainty despite the passage of CSLCA.  The question now is how to implement the law.

CSLCA required the White House Office of Science and Technology Policy (OSTP) to submit a report to Congress assessing new types of commercial space activities and recommending an approach for how the U.S. Government should authorize and continually supervise them to comply with Article VI of the 1967 Outer Space Treaty (OST).  OSTP submitted the report last month recommending that the Department of Transportation be assigned that role.  The report included draft legislative language to that end.

Ingraham called the OSTP report a “good first step,” but more work is needed on the specifics of the process for granting launch licenses for these new types of activities.  Bridenstine and others in Congress are drafting legislation that Ingraham hopes will pass before the end of this Congress.  The goal is “to provide the maximum certainty [for companies and their investors] with the minimum regulatory burden.”  An early version of the language is in Bridenstine’s American Space Renaissance Act, but it is still under development, he said.

The number of legislative days left in the 114th Congress is dwindling, however.  Both the House and Senate will be in recess from mid-July through early September for the Republican and Democratic conventions and the traditional August break, and in October and early November while most members campaign for re-election.  They are likely to return after the elections and be in session for part of December, but that schedule will not be clear until the elections are over.  Trying to get legislation like this passed in such a time-constrained environment will be a challenge.

When asked why the process could not be accelerated by starting with an Executive Order signed by the President followed by legislation later on — which is how the Department of Transportation was initially assigned responsibility for licensing commercial space launches (a Reagan Executive Order in 1983, legislation in 1984) — Ingraham replied that legislation provides more certainty because Executive Orders can be “easily overturned.”

Dunstan, a space law expert who has been involved in these issues for many years, said he was “not a big fan” of Executive Orders and the “further you get away from a clear statutory regime, the more you open yourself up to arguments at the international level that you are not complying with Article VI.”

Indeed, the panelists acknowledged that CSLCA has not been universally embraced by other countries. Ken Hodgkins, Director of Space and Advanced Technology at the State Department, summarized the reaction of the members of the U.N. Committee on Peaceful Uses of Outer Space (COPUOS) at a recent meeting of its Legal Subcommittee.  Russia, in particular, criticized the law as a unilateral action by the United States that violates Article II of the OST.  Article II states that “Outer space, including the Moon and
other celestial bodies, is not subject to national appropriation by
claim of sovereignty, by means of use or occupation, or by any other
means.”   

Other space-faring countries said little other than U.S. law should be consistent with the OST and more international discussion is needed, Hodgkins reported.  He wondered how the debate might be different if it was about governments rather than commercial entities utilizing the resources.  Proposals exist for establishing facilities on the Moon, ESA’s Moon Village, for example, which might require utilizing lunar resources to maintain a presence there.  Hodgkins posed the question of why it would not be permissible for companies if it is for governments.  He speculated that some of countries may be watching to see how this debate plays out to inform their own decisions.  He added that he does not think other countries want to prohibit their companies from mining space resources themselves or working with U.S. companies engaged in such activities.

Indeed, Luxembourg is already working with Deep Space Industries (DSI), one of the U.S. companies that plans to mine asteroids.  The same day as the seminar, DSI and Luxembourg announced a partnership to build the Prospector-X 3U cubesat to test technologies for asteroid mining.

Another U.S. company, Planetary Resources Inc., which bills itself as “the asteroid mining company,” deployed its first technology satellite from the International Space Station last year and plans two more this year, leading up to an asteroid rendezvous mission in 2020.  The company’s Vice President for Global Engagement, Peter Marquez, was the fourth member of the panel.  He stressed the need for the “lightest regulatory touch” in the United States and to get other countries to follow suit.  He said industry is encouraged by what Luxembourg, as well as the United Arab Emirates (UAE), are doing in the space resource mining area.  As for the discord at COPUOUS, Marquez quipped that the United States could show a slide saying “puppies are cute” and a series of objections would ensue.  (Marquez was the director of space policy at the White House National Security Council for the last half of the George W. Bush Administration and the first two years of the Obama Administration.)

Nonetheless, the legal implications of the asteroid mining provisions of CSLCA are likely to be a source of contention for many years to come, both domestically and internationally.  Dunstan argued, in fact, that while debate today starts with compliance with Article II of the OST, he believes Article I is most relevant.

Article I states in part that “Outer space, including the Moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind…” 

Dunstan insists that Article I, being the first article, prevails over Article II and that owning space resources is permissible. He contends that the United States and Russia each “own” lunar samples returned by U.S. Apollo crews and Soviet Luna robotic spacecraft, so there is precedent.  

Two other articles of the Outer Space Treaty are also part of this debate:  Article VI, which requires governments to authorize and continually supervise
the actions of non-government entities, and Article IX, which requires that
countries avoid “potentially harmful interference” with each other.

The legal debate is likely to continue for some time both within the space law community and at COPUOS.  Hodgkins said that the United States agreed to add an agenda item for next year’s meeting of the COPUOUS Legal Subcommittee to discuss “potential legal models for activities in exploration, exploitation and utilization of space resources.”  He stressed that the United States did not agree to any negotiations, just a general exchange of views. 

U.S. domestic law can set a standard, Hodgkins said, and he wants to ensure there is no gap in U.S. law that other countries could use to complain that the United States is not complying with the treaty. 

That, then, is the task for Congress as it develops implementing legislation. When it will be able to pass such legislation is anyone’s guess.