In one small step for legal jurisprudence—and one giant leap for the commercial space industry—the U.S. Court of Appeals for the District of Columbia (D.C.) Circuit has weighed in on the boundaries of Article III standing in outer space. While space law jurisprudence has grown for some time, many aspects of it, such as constitutional issues, have been relegated to academic discussion. The D.C. Circuit’s decision is therefore significant because it creates the first major constitutional precedent for commercial space law. This intersection between constitutional law and the burgeoning commercial space industry began in low Earth orbit (LEO), where Elon Musk’s rocket company Space Exploration Holdings, LLC, or SpaceX, uses new technology to maintain a constellation of communication satellites. Typically, communication satellites circle Earth in geostationary orbit, allowing them to travel at the same rate as Earth rotates and therefore appearing fixed in one spot in the sky over the equator. These satellites have the advantage of maintaining a constant link with a portion of Earth below. The downside, however, is the satellites’ high altitude, which increases latency. SpaceX’s LEO satellites travel closer to Earth, which reduces latency for the internet services they provide. The downside is that no single satellite can maintain coverage for a fixed point on Earth. But by using its own constellation of satellites in an orbital shell, which SpaceX calls “Starlink,” SpaceX can maintain constant coverage of an area by transferring signals from a satellite exiting a coverage area to one entering that area. To increase the quality of its services, SpaceX sought the Federal Communications Commission (FCC)’s approval to fly its satellites at an even lower altitude. The FCC approved the request, which was subsequently challenged by two of SpaceX’s competitors and the Balance Group, an environmental research and advocacy organization.
Viasat, Inc. v. Federal Communications Commission
In Viasat, Inc. v. Federal Communications Commission, the DISH Network Corporation, Viasat, Inc., and the Balance Group asked the FCC to reverse its decision allowing Starlink to lower its altitude. The FCC rejected their request. The parties appealed to the D.C. Circuit, where SpaceX joined as an intervenor to support the FCC. On appeal, DISH primarily argued that the FCC violated the Administrative Procedure Act (APA) and the Communications Act by acting arbitrarily and failing to adequately address issues of harmful interference. DISH’s arguments were dismissed upon the merits. Viasat and the Balance Group argued that the FCC violated the National Environmental Policy Act (NEPA) by “allowing SpaceX to [lower its satellites] without first preparing an environmental assessment.” To bring a case in federal court, a party must establish standing by showing an injury that is (1) concrete and particularized; and (2) actual or imminent, not conjectural or hypothetical. To pursue NEPA claims under the APA, a party must show that the injury is of the sort protected by NEPA. Viasat and the Balance Group proposed several theories in an effort to establish standing. The court rejected these theories and dismissed their claims, without reaching the merits.
Article III Standing
Viasat first argued that lowering SpaceX’s satellites would potentially cause a collision with its own satellite, which flies close to the Starlink constellation. But this collision would not be between two satellites directly. Rather, according to Viasat, one of SpaceX’s satellites could collide with a piece of space debris, thereby creating more space debris and, in the process, increasing the chance of a collision with Viasat’s satellite.13 Viasat’s theory was apparently based on a growing concern for scientists known as the Kessler Syndrome. The European Space Agency’s 2022 Space Environment Report defined the Kessler Syndrome as “the situation in which the density of objects in orbit is high enough that collisions between objects and debris create a cascade effect, each crash generating debris that then increases the likelihood of further collisions.”14 The density of objects in orbit (i.e., space debris) is, in fact, growing exponentially. Currently, over 30,000 pieces of orbital space debris, composed of both human-made and natural objects,15 are recorded and tracked by surveillance networks.16 Unrecorded and untracked, however, are an estimated one million pieces of debris over 1 cm in size.17 At orbital speeds approaching 18,000 miles per hour, even a speck of paint can cause serious damage to a spacecraft.18 With the increased rate of satellite launches and the increased number of satellites deployed per launch, the U.S., UK, Switzerland, Japan, and other countries have begun initiatives to address this issue. For example, in the U.S., the FCC “has voted to adopt new rules to address the growing risks of orbital debris,” which would require swifter removal of defunct satellites.19 Likewise, the UK Space Agency has awarded money to two companies whose mission is to remove space debris.20 Regardless of this growing concern, the D.C. Circuit found the risk of injury to Viasat—which maintains only a single satellite that flies close to Starlink—too speculative.21 The court first noted it is not enough to show that future harm is possible. Rather, the party “must show both that the risk is substantial and that the challenged action substantially increases it.”22 Following this precedent, the court found that Viasat’s theory of injury simply involved too many contingencies. First, a SpaceX satellite would have to suffer a collision. A prior order by the FCC estimated the chances of such a collision to be between 1-in-44 and 1-in-200 over the next century, depending on the number of satellites launched and the disposal failure rate.23 Second, that satellite would have to create its own debris field. Finally, one of those debris particles would have to enter a collision course with Viasat’s satellite, avoid detection or else escape attempts by Viasat to move its satellite, and ultimately strike the satellite.24 In sum, while space debris may be a general issue for the commercial space industry, Viasat failed to show an imminent risk that a SpaceX satellite would harm a Viasat satellite. On this basis, Article III standing could not be met. In the author’s opinion, the court’s analysis is both legally sound and forward-thinking. As one of the first significant court opinions influencing the contours of space law, the decision should be conducive to the orderly growth of the commercial space industry by elucidating clear legal standards and limiting hurdles to technological progress. The court’s decision achieves both. Beginning from a policy perspective, granting Article III standing in this scenario would have been detrimental to the future commercialization of space. Space endeavors are notoriously risky, and adding a layer of legal risks would only slow down innovation. As it is, satellite launches risk months-long bureaucratic delays due to the necessity of receiving approval from multiple federal agencies.25 These bureaucratic procedures are in place, in part, to ensure the safety of individuals, private and public property, and the environment. Now imagine that in addition to navigating legal issues with the federal government, a space company must also brace for legal challenges from every private party with hardware in space. As discussed, the number of entities with satellites in space is growing exponentially, and if conjectural harm to any of these parties is sufficient to satisfy Article III standing, then there’s no telling how high the legal costs could reach. Indeed, one of the primary reasons the space industry is growing so rapidly is the vast reduction in the price of space launches. While any growing industry will necessarily face more legal issues, expanding the scope of liability here could grind launches to a halt. Furthermore, increased legal costs would stifle innovation by entrenching parties that establish a position in orbit first. For example, modern satellites are equipped with increasingly sophisticated technology that can adjust their position in orbit. Ideally, potential collisions can be avoided simply by having one or both parties adjust course. However, if a party’s satellite lacks such technology, that party could challenge future competitor launches by arguing the collision risk is too great due to its satellite’s inability to adjust course. This increased risk could potentially satisfy Article III standing, prevent launches of newer satellites, and disincentivize technological advancement. From a legal standpoint, the decision is sound and narrowly decides that the present risk of harm to Viasat is too conjectural. It would be ideal to know exactly what level of risk is sufficient to trigger standing. For example, what if the exponential rise of human-made objects in space is so rapid that, before the century is through, collisions between active satellites become a common occurrence? Would regular symptoms of the Kessler Syndrome (i.e., satellite collisions) grant standing to anyone with hardware in space? For now, this question is unanswered—and for the court to have answered it would be to render dicta of dubious precedential value.
Viasat next argued it had standing under NEPA because orbital crowding—or, as the court put it, “congestion in outer space”—increased its operating costs.26 Under this theory, the increase of the number of objects in orbit would, for example, make it more “technically complex and more expensive for Viasat to launch its own satellites.”27 Unfortunately for Viasat, the court concluded such economic interests are outside of the type of environmental harms that NEPA protects. Viasat had argued that while its economic interests predominated, its orbital congestion claim nonetheless involved a classic environmental concern.28 While the court stated that NEPA may cover claims regarding congestion due to vehicular and pedestrian traffic, such claims must be brought by persons actually affected by the environmental nuisance. Thus, as the court explained, the proverbial New Yorker cannot complain about traffic in Washington, D.C. Here, the court did not believe that Viasat or anyone affiliated with it—including shareholders, employees, customers, etc.—could reasonably claim they personally suffered a nuisance, aesthetic, or other environmental injury from orbital congestion.29 The Balance Group tried to establish group standing under NEPA but likewise failed to do so.30 As in the case of individuals, the Balance Group needed to show it suffered a concrete, imminent injury. However, the Balance Group could only vaguely assert that the FCC’s decision forced it to redeploy personnel and divert resources from other research projects. These setbacks to the organization’s abstract social interests did not persuade the court to find a concrete injury.31 The court suggested that further specificity was needed as to which personnel and what resources were affected. Likewise, the claim that the Balance Group spent at least $10,000 on activities related to Starlink, without further elaboration, was too vague to establish standing. Like Viasat, the Balance Group was not a proper party to pursue a NEPA claim, and the merits of its argument were not considered. The author believes this aspect of the decision is also a positive development for space law and the commercial space industry. It is important to add that the benefits of space technology are perhaps underappreciated. These benefits are important to consider because there has always been tension between human wants and needs, and the impact that attaining those wants and needs has on our environment. Naturally, we should want to be good stewards of the Earth and to extend our stewardship into outer space. But as with any other technology with an environmental impact, people must consider the enormous benefits these technologies have. To name just a few critical technologies, satellites are used for the Global Positioning System (GPS), which allows us to get from point A to B with map applications; to track devices linked with GPS; and even to find people on dating apps within a geographic range. Furthermore, trillions of dollars in financial transactions move through satellites every day. Slowing down this system could grind cashless transactions to a halt.32 And to circle back to the purpose of Starlink, satellites provide internet. Internet is so ubiquitous in wealthier countries that it is hard to imagine life without it. Because the necessary internet infrastructure is already in place across much of the United States, stopping projects like Starlink in the name of environmentalism hardly seems like it would have a day-to-day impact. But such thinking would do the most damage to the poor, along with those in remote areas around the world, who do not share the same luxuries. One of the great benefits of Starlink and other satellite constellations is that they can provide relatively affordable service to anyone, anywhere in the world. To deny internet services to people in order to reduce orbital congestion—thereby depriving them of communications with loved ones, economic and educational opportunities, and all of the other benefits that come with such services—would surely be on the wrong end of a cost-benefit analysis. Of course, this is not to say there can never be legitimate environmental concerns. Suppose a company displayed a billboard in LEO for millions of earthlings to witness. Far-fetched? No.33 The idea has gained traction and may soon become practical. Suppose, then, you look up in the sky hoping to see the Little Dipper but see an advertisement for a new chip dip instead. Can you sue under NEPA? The court did say “Article III standing is not geographically unbounded.”34 And the distance to the edge of LEO (~1,200 miles) is much farther than the distance to D.C. for the proverbial New Yorker complaining about traffic in D.C. This question and many others have yet to be determined.
Beyond deciding the narrow issue of standing, the D.C. Circuit has established a foothold for our common law institutions—i.e., our courts and their ability to build on precedent—in the final frontier. Such institutions perhaps go hand in hand with the commercialization of space. The path forward—for both technological and legal advancement—requires the ability to build upon foundations and improve over time. On the technological front, both satellites and rockets will improve over time, drive down costs, and increase the quality and quantity of benefits that the commercialization of space has to offer. Likewise, U.S. jurisprudence will build upon the D.C. Circuit’s decision as new challenges arise, thereby creating a workable and durable legal framework for the commercial space industry. Most importantly, the D.C. Circuit’s decision shows that “space law” is no longer an academic discussion untested by the courts of law. It is a growing body of practical jurisprudence with implications for technologies that affect day-to-day life. And with one estimate showing that annual sales generated by the space economy will likely increase from $370 billion in 2020 to more than $1 trillion in 2040,35 there is no doubt that the law and its advocates have further catching up to do.
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