The Long Run: How U.S. Space Law and Policy Paved the Way for Manned Commercial Space Flight
On March 30, 2020, SpaceX made history as the first commercial launch provider to build, operate, and launch a spacecraft carrying NASA astronauts to the International Space from U.S. soil.[1] The successful launch marks an end to U.S. reliance on Russia to provide transport for astronauts to and from the ISS, but it also is a significant milestone in a decades-long push to concentrate and grow U.S. space exploration in the commercial sector.
Since the early 1980s, it has been U.S. policy to promote commercial activity in outer space. Beginning in 1981 under President Ronald Reagan, a Congressional Space Caucus formed to draft legislation to promote the commercial space launch industry. The work of the Caucus led to the passage of the Commercial Space Launch Act of 1984 (the “CSLA”), which established authority and a licensing scheme for the private launch industry,[2] to be administered by the Federal Aviation Administration (the “FAA”) under the Department of Transportation.[3]
However, with NASA’s launch of Columbia on April 12, 1981 and the designation of the shuttle as the National Space Transportation System, there was little role left for the commercial launch sector to play. The shuttle was conceived as a cost-effective reusable launch vehicle that would make space accessible to the average citizen.[4] In order to achieve cost-effectiveness and recoup development expenses, the shuttle needed to adhere to a demanding schedule, with a cost-benefit analysis calling for near weekly flights.[5]
Well into the mid-80s, many of the commercial satellites—such as those used for telecommunications—were being launched under contracts with NASA from the space shuttle.[6] When the shuttle Challenger exploded on January 28, 1986 killing the seven-member crew, shuttle launches were suspended pending investigation by the specially appointed Rogers Commission.[7] The Commission concluded that the accident was at least partially attributable to NASA’s prioritization of commercial launches under an increasingly demanding schedule that drained resources for other operational needs.[8] As a result, the Commission recommended a reprioritization of existing NASA contracts and overall space policy with an emphasis on those launches that had national security or foreign policy implications.[9]
On August 15, 1986, President Reagan announced that “NASA will no longer be in the business of launching private satellites,” and that “the private sector, with its ingenuity and cost effectiveness, will be playing an increasingly important role in the American space effort.”[10] Although NASA continued to use the shuttle for other launches, including to transport astronauts, components, and payloads to the ISS until the shuttle retired in 2011,[11] the announcement signaled an official push toward growing the commercial launch sector consistent with the Reagan Administration’s overall policy.
In order to ensure that the commercial launch industry had room to grow, the House convened its Subcommittee on Space Science and Applications to review the state of the industry.[12] During those hearings, industry participants voiced concerns over the ability to obtain insurance to meet the requirements for launch licensure and the requirement that licensees assume all risks, regardless of whether they were insurable.[13] Moreover, Congress noted that the emerging European competitor, Arianespace, was shielded from unlimited liability by indemnification from European governments.[14]
In response to these concerns, Congress amended the CSLA in 1988[15] to require cross-waivers of liability between launch services participants, to set liability limits, to set maximum insurance requirements, and to establish governmental indemnity for third-party claims in excess of the maximum probable loss defined by the FAA.[16] These requirements were incorporated into the regulations imposed by the FAA as a prerequisite to licensure.[17]
The 1988 amendments made strides toward developing a licensing regime under the framework of the 1984 CSLA; however, they were drafted in view of existing capabilities. At that time, expendable launch vehicles (“ELVs”)[18] were being used to launch payloads, and a reusable launch vehicle (“RLV”) capable of transporting humans to and from space had yet to be developed in the commercial sector.
In 2004, President George W. Bush issued two announcements relating to space policy that emphasized continued commercial development and the role of human space flight.[19] The first, a national “Vision for Space Exploration,” enunciated such goals as retiring the space shuttle by 2010, returning humans to the moon by 2020, exploring Mars and other worlds with manned missions, and promoting commercial exploitation of outer space.[20] Later that year, President Bush announced a new National Space Transportation Policy, which emphasized the need to continue to grow the commercial sector and for the first time recognized “public space travel” as a key objective of the nation’s space policy.[21] Also in 2004, Scaled Composites, LLC launched SpaceShipOne on a FAA license into suborbital space 62.5 miles above the Earth’s surface, marking the first private manned space flight.[22]
The policy shift toward increased human space flight was already a topic of focus in Congress, which for years had been seeking to strike the right balance between protecting public safety and allowing the industry to grow without prohibitive “best guess” regulatory burdens.[23] A key point of contention in legislative discussions at the time was how involved the legislature should be in protecting private astronauts, known as space flight participants (“SFPs”). While some argued for a regulatory regime imposing safety standards on RLVs that would ensure SFP safety akin to that afforded airline passengers, the prevailing view was that space activities are inherently dangerous and more like adventure travel, the risks associated with which SFPs should be able to assume after being properly informed.[24]
Ultimately, Congress passed the Space Act of 2004, which called for the establishment of a regulatory regime centering on assumption of the risk for SFPs and focusing safety-related efforts on protecting the uninformed public.[25] The Space Act additionally extended government indemnification to manned commercial space flights taking place under a FAA license and required SFPs and crew members to enter into cross-waivers of liability with the federal government.[26] Although most of these provisions were scheduled to sunset within a set number of years, all have been extended by Congress and remain in effect today.
NASA’s Role in Manned Commercial Space Flight
In order to effectuate the goals of the national space policy, there needed to be demand for a commercial space market. In 2010, NASA took steps toward creating that market when it began the first development phase of the Commercial Crew Program (the “CCP”), investing $50 million to stimulate private-sector development of crew transport vehicles.[27] Although NASA had partnered with commercial entities during the construction of the ISS, the CCP marks the first private-public partnership specifically seeking to transport humans into outer space. In 2014, NASA announced that two U.S. companies—SpaceX and Boeing—had been awarded contracts under the CCP.[28] The SpaceX Crew Dragon Demo-2, launched on March 30, 2020, was the first commercial spacecraft to ever launch humans into space.[29] SpaceX’s first operational crew mission, Crew-1, is tentatively scheduled for launch in November 2020.[30]
The CCP is just one aspect of a broader objective to stimulate and develop the commercialization of outer space, particularly Low Earth Orbit (“LEO”). On June 7, 2019, NASA announced a comprehensive plan meant to establish and promote an economic market in outer space through the commercialization of ISS activities.[31] This plan includes opening up the ISS for commercial research as well as opportunities for two private space tourists to visit the ISS each year for up to 30 days apiece on spacecraft developed under the CCP. [32]
Negotiations for the first fully private commercial space flight are already underway. On March 5, 2020, Axiom Space announced that it had contracted with SpaceX for a Crew Dragon flight that will be manned by an Axiom-trained commander and up to three private space flight participants.[33] Sherman & Howard attorney Milton “Skip” Smith from Colorado Springs is representing one of the astronauts in the negotiation process; the mission is expected to launch in the latter half of 2021.
The Axiom flight will serve as a “precursor mission” toward achieving its and NASA’s[34] goals of developing a fully commercial module that will attach to the ISS and have the capacity to host up to seven crewmembers, including private space tourists.[35] Once the ISS retires, the Axiom module will detach and become an independent commercial space complex for living and working in space.[36]
Other commercialization efforts are being executed under Space Act Agreements between NASA and commercial entities,[37] and the commercial sector is constructing components of the Lunar Gateway under NASA’s Artemis program. This multifaceted expansion of commercial involvement means the industry is starting to catch up to those objectives set back in the ‘80s that have been revamped every handful of years. And while private space flight is not currently priced at point that makes it “accessible to the average citizen,”[38] the opportunities are greater than they have ever been.
[1] NASA, “NASA Astronauts Launch from America in Historic Test Flight of SpaceX Crew Dragon,” nasa.gov (May 30, 2020).
[2] See Cody Knipfer, Congress and Commerce in the Final Frontier (Part 1), thespacereview.com (Dec. 10, 2018), https://www.thespacereview.com/article/3619/1 [hereinafter “Knipfer”].
[3] FAA, Origins of the Commercial Space Industry, faa.com, https://www.faa.gov/about/history/milestones/media/Commercial_Space_Industry.pdf (last visited Mar. 26, 2020); Knipfer, supra note 2.
[4] NASA, SP-4221 The Space Shuttle Decision: Chapter 6, Economics and the Shuttle” https://history.nasa.gov/SP-4221/ch6.htm
[5] David M. Harland, The Story of the Space Shuttle 2-3 (Springer-Verlag 2004).
[6] See Hughes Commc'ns Galaxy, Inc. v. United States, 34 Fed. Cl. 623, 626 (1995) [hereinafter “Hughes”]; Knipfer, supra note 2.
[7] See Hughes, supra note 6 at 626-29.
[8] William Rogers, Report to the President By the Presidential Commission on the Space Shuttle Challenger Accident 171-172 (Washington, D.C. 1986) [hereinafter the “Rogers Commission Report”].
[9] See Hughes, supra note 6 at 627-28.
[10] See Hughes, supra note 6 at 627.
[11] See NASA Petition to Congress to Propose an Amendment to the CSLA Adding Classification of Government Astronaut, NASA.gov (Nov. 26, 2013), https://www.nasa.gov/sites/default/files/atoms/files/nasa_government_astronaut_proposal_tagged.pdf. Note that the referenced document is a letter sent to members of Congress and Vice President Biden seeking to amend the CSLA for purposes of clarity and providing proposed language as well as a statement of purpose and interpretation.
[12] See Knipfer, supra note 2.
[13] See Knipfer, supra note 2.
[14] Id.; see Timothy Robert Hughes & Esta Rosenberg, Space Travel Law (and Politics): The Evolution of the Commercial Space Launch Amendments Act of 2004, 31 J. Space L. 1, 16 (2005) [hereinafter “CSLA Evolution”].
[15] For ease of reference, unless referring specifically to legislation of a particular year, I will refer generally to the CSLA and the Commercial Space Launch Amendments Act of 1988 as currently codified under 51 U.S.C. § 50914 as the “CSLA.”
[16] See Commercial Space Launch Amendments Act of 1988, Pub. Law No. 100-657, 102 Stat. 3900.
[17] 14 C.F.R. Part 440.
[18] Expendable launch vehicles, as the name implies, are one-time-use launch vehicles that cannot be recovered and reused.
[19] See CSLA Evolution, supra note 14 at 9.
[20] See id.
[21] See id. at 10-11.
[22] See id. at 9; Frans G. von der Dunk, Federal versus State: Private Commercial Spaceflight Operator Immunity Regulation in the United States, 56 Proc. Int'l Inst. Space L. 517, 517-18 (2013) [hereinafter “Von der Dunk”]; Tim Sharp, SpaceShipOne: The First Private Spacecraft, space.com (Mar. 5, 2019), https://www.space.com/16769-spaceshipone-first-private-spacecraft.html.
[23] See CSLA Evolution, supra note 14 at 22-43.
[24] See id. at 41.
[25] See id. at 43. The Space Act not only focused on third-party safety, it limited the DOT’s ability to regulate the safety of space vehicles for a period of eight years, permitting regulation only where design features or operating practices have resulted in serious or fatal injury or pose a high risk thereof. This eight-year “learning period” was deemed necessary due to the infancy of the industry and the fact that proposed safety measures would really just reflect a best guess at what could enhance safety. Such regulation was therefore deemed to be both premature and unduly burdensome on an industry that needed time to grow and develop on its own. This learning period has also been repeatedly extended and remains in place today.
[26]See Von der Dunk, supra note 22 at 519-520, observing that the 2004 Act arguably extends cross-waiver requirements to SFPs as “customers” or “users” of the licensee, but noting that the Act solely requires SFPs to waive against the U.S. government.
[27] NASA, Commercial Crew Program Presskit, nasa.gov, https://www.nasa.gov/specials/ccp-press-kit/main.html.
[28] See NASA, NASA Chooses American Companies to Transport U.S. Astronauts to International Space Station, NASA.gov (Sept. 16, 2014), https://www.nasa.gov/press/2014/september/nasa-chooses-american-companies-to-transport-us-astronauts-to-international.
[29] Jon Fingas, SpaceX Crew Dragon completes historic mission with an ocean landing, endgadget.com (Aug. 2, 2020) https://www.engadget.com/spacex-crew-dragon-successful-splashdown-184812158.html.
[30] Marie Lewis, NASA, SpaceX Crew-1 Update, nasa.gov (Oct. 10, 2020), https://blogs.nasa.gov/commercialcrew/2020/10/10/nasa-spacex-crew-1-launch-update/.
[31] NASA, NASA Opens International Space Station to New Commercial Opportunities, Private Astronauts, NASA.gov (June 7, 2019), https://www.nasa.gov/press-release/nasa-opens-international-space-station-to-new-commercial-opportunities-private [hereinafter “New Opportunities”]
[32] See id.
[33] Axiom Space, Axiom Space plans first-ever fully private human spaceflight mission to International Space Station, axiomspace.com (Mar. 5, 2020), https://www.axiomspace.com/post/axiom-space-plans-first-ever-fully-private-human-spaceflight-mission-to-international-space-station.
[34] See New Opportunities, supra note 31.
[35] See id.
[36] See Nonreimbursable Space Act Agreement Between The National Aeronautics And Space Administration Lyndon B. Johnson Space Center and Axiom Space, LLC For Low-Earth Orbit Commercial Development, Aug. 26, 2020, at 1.
[37] NASA.gov, National Laboratory Space Act Agreements (SAAs) With Private Commercial Firms, https://www.nasa.gov/mission_pages/station/research/nlab/commercial.
[38] See Michael Sheetz, The most expensive hotel ever? Here’s the cost for a night at the International Space Station in 2020, cnbc.com (June 7, 2020) https://www.cnbc.com/2019/06/07/nasa-opening-iss-to-business-including-private-astronauts-by-2020.html. Citing a NASA estimate that a 30-day trip to the ISS will cost approximately $50 million.
