Gabrynowicz Warns ASTEROIDS Act Needs More Work

Space law expert Joanne Gabrynowicz warned a House subcommittee yesterday (September 10) that a proposed bill to grant property rights to materials mined from asteroids could face legal and political challenges if passed in its current form.

Gabrynowicz, a Director of the International Institute of Space Law (IISL) and Professor Emerita of the University of Mississippi’s National Center for Remote Sensing, Air and Space Law, testified to the Space Subcommittee of the House Science, Space and Technology Committee.

The title of the hearing suggested that the main topic would be issues posed by the ASTEROIDS Act (H.R. 5063) introduced by Reps. Bill Posey (R-FL) and Derek Kilmer (D-WA).  The other four witnesses were space scientists, however, and the hearing was more about the status of NASA’s planetary science program than legal issues of property rights in space.

ASTEROIDS Act

Key points stressed by Gabrynowicz were that —

• the potential legal impact of the ASTEROIDS Act on treaties is likely to be modest, but the potential political impact is likely to be sizeable;
• there is no legal clarity on some of the issues addressed in the bill;
• the bill uses terms of art – e.g. “harmful interference” and “first in time” — in a novel context and require further elaboration;
• resource extraction in space is a “volatile and contentious issue at the international level” — it will take years to reach agreement and political groundwork is needed;
• in the United States, the issues cut across a number of agencies and a coordinated interagency mechanism is needed to facilitate policy development; and
• the bill does not appear to be written to advance a new industry – asteroid mining – as a whole, but instead is aimed at the interests of particular companies.

Posey countered that if the United States does not act quickly, other countries, such as Russia and China, will take the lead and may not give the issues “thoughtful consideration.”

In response to questions from Rep. Kilmer, two of the planetary scientists on the witness panel – Jim Bell, a professor at Arizona State University and President of The Planetary Society and Mark Sykes, CEO and Director of the Planetary Science Institute – conveyed their views that asteroid mining is not likely for many years (Bell said decades) and its cost-effectiveness still must be determined.

Posey took issue with the time scale, saying at least one company is ready to do it now.  He cited a letter from Planetary Resources, Inc. that was entered into the record of the hearing, but is not yet posted on the committee’s website or the company’s.

Bell and Sykes said that water is the most likely substance to be mined since it is needed to support human space exploration.  The two disagreed on the ease of reaching asteroids of interest in the mining context, with Sykes enthusiastically explaining the abundance of asteroids and their closeness to Earth, but Bell cautioning that those with water might be further away, perhaps in the asteroid belt between Mars and Jupiter.  Sykes stressed the need for a survey to locate and characterize more asteroids.  (Congress has played a critical role in directing NASA to conduct surveys to find asteroids and comets – collectively called Near-Earth Objects (NEOs) – that could threaten Earth.  NASA is currently under congressional direction to detect, track, catalogue and characterize 90 percent of NEOs equal to or greater than 140 meters in diameter by 2020.  NASA’s Small Bodies Assessment Group recently issued a finding that the agency has no plan to achieve that goal and a space-based NEO survey telescope is needed.)

NASA’s Planetary Science Program

Much of the hearing focused on the state of NASA’s planetary science program.  The discussion covered familiar ground, with NASA Planetary Science Division Director Jim Green and other witnesses reviewing NASA’s ongoing and planned missions followed by complaints from non-NASA witnesses and subcommittee members about recent cutbacks in the planetary science budget and some Republican subcommittee members adding their objections over how much NASA spends on earth science instead.

Philip Christensen, Regents Professor at Arizona State University (ASU) and co-chair of the National Research Council’s (NRC’s) Committee on Astrobiology and Planetary Science, stressed three themes: 

• excellent opportunities for continuing robotic solar system exploration exist and are laid out in the NRC’s most recent Decadal Survey for planetary science;
• significant reductions in funding for planetary science compared to the previous decade have significantly slowed the pace of new missions; and
• a lack of year-to-year stability makes long range planning difficult.  

Bell pointed out that while the planetary science program seems healthy today, that is only because of investments made in the last decade and the pace will not be maintained at today’s funding level.

Since FY2013, NASA has been requesting about $1.3 billion per year for planetary science compared to $1.5 billion in the past.

Rep. Mo Brooks (R-AL), who represents the district that includes Marshall Space Flight Center where the Space Launch System (SLS) is being built, asked Green about the potential of using SLS for robotic planetary science missions.  SLS’s primary purpose is for sending humans beyond low Earth orbit, but SLS advocates are seeking other uses for the Saturn V-class rocket.   Congress has been adding money to NASA’s budget to send a probe to Europa, one of Jupiter’s moons, and using SLS for that mission is an oft discussed possibility.  Green replied that SLS could provide a “great capability” for missions to the outer planets and “could fit well” with the Europa mission.  He explained that SLS could reduce trip times to the outer planets by half.

Rohrabacher, a critic of SLS, countered that he did not find that a compelling justification for SLS considering its cost of about $1 billion per year while planetary science funding is being cut.

The availability of plutonium-238 (Pu-238) needed to power spacecraft that cannot rely on solar power because they travel too far from the Sun or land on planetary bodies with day/night cycles was another topic discussed.  Green assured the subcommittee that NASA and the Department of Energy (DOE) are working well together on reestablishing Pu-238 production and there is a sufficient supply for the next mission that will require it – the Mars 2020 mission.  It is not so much an issue of Pu-238 itself, he said, but the ability to produce the pellets that are needed.

Asteroid Redirect Mission (ARM)

Subcommittee chairman Steve Palazzo (R-MS) stressed at the outset of the hearing that planetary science efforts to find and characterize asteroids should not be confused with the Obama Administration’s Asteroid Redirect Mission (ARM).  He does not support the latter.

The White House announced the ARM program last year.  The concept is to send a robotic probe to an asteroid and use it to change the asteroid’s orbit, redirect it into lunar orbit where it would be visited by astronauts who would return a sample to Earth.  ARM has gained little support in Congress or the space community.  Asteroids are “small bodies” in planetary science parlance, and NASA’s Small Bodies Assessment Group (SBAG) recently issued a finding that ARM’s “benefits for advancing the knowledge of asteroids and furthering planetary defense strategies are limited and not compelling.”

Sykes called ARM a “poorly conceived and designed” mission that does not advance human exploration, science, planetary defense, or In Situ Resource Utilization (ISRU) of asteroids.  He said NASA’s $1.25 billion cost estimate for ARM “strains credulity” considering that the robotic OSIRIS-REx mission, which will be launched in 2016 to return a small sample of an asteroid to Earth, cost $1.05 billion itself.   Rohrabacher thanked Sykes for his frank assessment.

(ARM is a much more complicated mission that involves not only sending a robotic spacecraft to an asteroid, but developing the technologies to move the asteroid into a different orbit and then sending astronauts to obtain a sample.  NASA does use $1.25 billion as its current, informal cost estimate for ARM, but it does not include costs for activities NASA was pursuing anyway, such as the Space Launch System and Orion spacecraft needed for the astronaut portion of the mission, or launch costs for the robotic portion of the mission.   A formal cost estimate will not be made until the program is further along.)