The Galloway Space Law Symposium last week focused on two topics likely to be at the top of the list of civil and commercial space issues in the 115^th Congress – what the incoming Trump Administration has in mind for NASA and how to ensure that new types of commercial space activities comply with U.S. obligations under the Outer Space Treaty.

The 11th Eilene M. Galloway Symposium on Critical Issues in Space Law, sponsored by the International Institute of Space Law (IISL), took place at the Cosmos Club in Washington, D.C. on December 7.  

Trump and NASA.  Trump’s position on NASA and the space program overall is largely unknown, but the opening keynote speaker, former Congressman Bob Walker, has written and spoken about what it might be.  He is not officially a member of the Trump transition team, but is an adviser to it and a respected voice in Republican space circles.

Walker originally was working for the presidential campaign of Ohio Governor John Kasich, but after Kasich withdrew he was tapped with little notice to write up the broad outlines of a Trump space policy just before the election.  He and Peter Navarro co-authored two op-eds, on civil and national security space respectively, in Space News.  Walker also spoke to a meeting of the FAA’s Commercial Space Transportation Advisory Committee (COMSTAC) in October.

At the Galloway Symposium, he reiterated what he had said in those other forums while stressing that he was not officially speaking for the Trump transition team.  He is proposing a space policy that is –

• Visionary:  NASA should not focus on a single deep space human destination like Mars, but on human exploration of the entire solar system by the end of the century in order to drive technology development.
• Disruptive:  move Earth-centric research to other government agencies; turn the ISS over to a quasi-public company and use it as a public research facility with refurbishment done with commercial and international assets. 
• Coordinating:  reinstate the White House National Space Council to better coordinate U.S. space activities to take advantage not only of U.S. government resources, but those available from commercial and international partners.
• Resilient:  make national security space assets more resilient by having larger constellations of satellites that are serviced robotically; increase investments in hypersonics.

Based on his interactions with the Trump campaign and transition teams, he said he anticipates a Trump Administration where Vice President Mike Pence essentially serves as Prime Minister while Trump is a “national figure” doing what he believes is necessary to move the country forward.

Just prior to the symposium Trump called for cancellation of Boeing’s contract to build a replacement Air Force One aircraft because it is too expensive.  Asked what that may forebode for another Boeing program, NASA’s Space Launch System, Walker said he viewed Trump’s comments as part of a negotiation – setting the parameters of a new deal to reduce costs.  He urged the audience to remember that Trump is not a politician, but a real estate deal-maker whose premise is that the government needs to do a better job of interacting with the private sector to get what it needs at the best price.

Walker did not speculate on who might be the next NASA Administrator, but firmly asserted that he is not interested in the job.  (He is a very successful lobbyist with the Wexler|Walker firm.)

Commercial Space and the Outer Space Treaty.   The issue that dominated the day was how to ensure U.S. compliance with its obligations under the 1967 United Nations Outer Space Treaty, especially Article VI that requires governments to authorize and continually supervise the activities of non-government entities, like companies.

It is a deeply complex set of arguments that turn as much on domestic law and politics (the relative roles of the Executive and Legislative Branches, and how minimal a minimal set of regulations can be yet still be effective) as on international space law (whether or not the treaty is self-executing, or the definition of “activities”).

The goal of the Obama Administration, Congress and industry is to find a solution that empowers U.S. companies to engage in new types of commercial activities that range from building private space stations to satellite servicing to placing habitats on the Moon to mining asteroids.  That means creating a legal and regulatory environment where the State Department – guardian of U.S. treaty obligations – can say “yes” or “yes, with the following conditions,” rather than “no” to a proposed commercial activity.

Rep. Jim Bridenstine (R-OK) has been a leader in Congress on these issues.   He chairs the Environment Subcommittee of the House Science, Space, and Technology (SS&T) Committee and is a member of the House Armed Services Committee.  In a morning keynote, he recapped his proposed solution – legislation and a minimal set of regulations to provide the certainty companies say they need in order to attract investors.  Later in the day, a panel of three space lawyers debated the issues:   Diane Howard, Assistant Professor, Commercial Space Operations, Embry-Riddle Aeronautical University; Laura Montgomery, recently retired as Manager of the FAA’s Space Law Office and now in private practice; and Matthew Schafer, Director of Space Cyber & Telecom at the University of Nebraska-Lincoln Law School.

Other panels of speakers also addressed aspects of the debate, which is too complex to summarize here (we will post a separate story later).   In a nutshell, earlier this year it appeared that consensus was developing between government and industry to designate FAA’s Office of Commercial Space Transportation (FAA/AST) as the government entity to authorize and continually supervise commercial in-space activities.  That would be an expansion of its current role in granting permits and licenses for launches and reentries.

This fall, however, Rep. Brian Babin (R-TX), chairman of the Space Subcommittee of House SS&T, called for a total regulatory rethink and said he planned to hold hearings next year.  About the same time, Montgomery, an attorney who spent more than 20 years at the FAA working commercial space issues, also came forward with a different interpretation of what is required to comply with the treaty.

All of these ideas were debated at the Galloway Symposium.  There was no resolution and Babin’s hearings, whenever they take place, likely will elucidate where the various parties stand. Some commercial activities, like space mining, may be decades away.  Others, like private space stations or satellite servicing, loom larger, arguing for a near-term decision at least on what government office should be designated as the responsible entity for whatever laws or regulations are to come.

As an example of the gulf between the various points of view, Montgomery said “as a former regulator, I can say that the only thing worse than ambiguity is clarity” because while “you’d think … [with] clarity, you’re going to know exactly what to do, until you find out you don’t want to do the thing they make you do.”   Responding to that comment, Chris Hearsey, Director of Legislative Affairs for Bigelow Aerospace, which wants to build space stations and habitats, said on the next panel that businesses “don’t want ambiguity.”  “I can’t tell Mr. Bigelow how he can plan his missions, I can’t tell him what to tell customers unless we know what the boundaries are for us.”

The foundational document that sets international law for conducting space activities — the 1967 Outer Space Treaty (OST) — is about to turn 50.  State Department Legal Advisor Brian Egan discussed the relevance of the Treaty today and its future at the 11th Eilene M. Galloway Symposium on Critical Issues in Space Law last week.  The annual symposium is held under the aegis of the International Institute of Space Law (IISL).

Officially named the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, the OST was adopted by the United Nations General Assembly on December 19, 1966, opened for signature on January 27, 1967 and entered into force on October 10, 1967.

Article VI, which requires that governments authorize and continually supervise the activities of their non-governmental entities, like companies, puts it at the center of today’s debate over commercial space activities.  Specifically the question is how to ensure that proposed U.S. entrepreneurial ventures like private space stations, satellite servicing, habitats on the Moon, and asteroid mining comply with those obligations.   Experts at the December 7 Galloway space law symposium debated many of those issues.  Egan focused his comments on the relevance of the OST today and the outlook for the next 50 years.  

He noted that the Commercial Space Launch and Competitiveness Act (CSLCA, also called the Space Resource Exploitation and Utilization Act) enacted last year generated confusion internationally.  Some countries concluded that the United States was abrogating its obligations under the OST by granting property rights to space resources obtained by U.S. companies.  “In fact it is just the opposite,” he stressed, because CSLCA clearly states that such rights must be consistent with U.S. international obligations and are subject to authorization and continuing supervision by the U.S. government as required by Article VI.

Egan noted that Article IX is also important in the context of innovative commercial space activities.  It requires that signatories to the Treaty avoid “harmful contamination” of the Moon and other celestial bodies and adopt “appropriate measures for that purpose.”  The U.S. government recently approved an application by Moon Express to land a spacecraft on the surface of the Moon after it voluntarily agreed to comply with international planetary protection guidelines established by the international Committee on Space Research (COSPAR).  He stressed that the approval was specific to this one short-duration mission and the State Department’s ability to authorize more extensive missions in the future requires “a more robust authorization framework … to enable conditional approval where necessary.”

Importantly, as the next 50 years of the OST unfold, the approach to avoiding harmful contamination of celestial bodies may evolve, Egan said.  The “open-textured” nature of the OST “accommodates such developments” by avoiding precise definitions of terms like harmful contamination that may change over time.

“Eilene Galloway was prescient about this need for flexibility in anticipation of the unforeseen — and unforeseeable — developments.  In a paper she delivered in the Hague in 1958, she cautioned that unless we study legal problems ‘in conjunction with the developing facts of science and technology … our interplanetary thinking will be earthbound by tradition and precedent at a time when creative predictions should enable us to keep international law in pace with scientific achievement.'”

Egan concluded that the Treaty “does not attempt to answer every legal
question directly, or speak to any activity specifically” but is a
“framework” to address “new capabilities and activities … and the legal
questions such activities inevitably generate.  If the preparations for future space activities underway in the United States and other nations are any indication, the Treaty will serve this function well into its second half century and beyond.”

Dennis Burnett, IISL Treasurer and the lead organizer of the Galloway Symposium, pointed out that this was the first official statement on the OST by a State Department Legal Advisor in more than 30 years.