Business of Law

As outer space becomes more accessible, space lawyers will be in greater demand

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Billionaires are building their own rockets to go to space. Regular people are mingling with astronauts on spacecraft. Companies are trying to monetize space, while the government established a new branch of the armed services in December 2019, the U.S. Space Force, to defend it. We’ve entered a new space age, and there are stellar opportunities for space lawyers to explore.

The biggest issue: “There isn’t really much in the way of law in space,” says Chris Johnston, a trial attorney with offices in Minneapolis and in Des Moines, Iowa, who is developing a space law practice. There are currently several treaties in place through the United Nations, though they are ambiguous, Johnston says, and could use many lawyers’ help.

Signed in 1967 by the United States, the United Kingdom and the USSR, the U.N.’s Outer Space Treaty’s nonappropriation principle is the guiding light, and it’s the treaty that attorneys and astronauts alike look to when trying to determine the space laws, explains Michelle L.D. Hanlon, co-director of the Center for Air and Space Law and an instructor of aviation and space law at the University of Mississippi School of Law. The treaty prohibits placing nuclear weapons in space, limiting the use of celestial bodies to peaceful purposes; and it says that while space is free to be explored by all nations, no nation may claim sovereignty of any celestial body.

The U.S. Commercial Space Launch Competitiveness Act of 2015, however, took this one step further, stating that a U.S. company entering space is allowed to keep what it finds.

Translation: Let’s say your company arrives in space and finds a stone made out of black diamonds. It should feel free to grab the stone, put it into a bucket and bring it back to Earth. But the company can’t leave the stone in space, stick a flag on it and claim it as U.S. territory. Confused?

When the United States planted its flag on the moon, that didn’t mean it claimed the moon, as the treaty makes it clear that you can’t own anything in space. The general consensus is that the treaty doesn’t preclude or prevent space mining, nor does it condone it.

“If we want to go there and dig something valuable, we can keep it,” says Michael Dodge, co-chair of the ABA Space Law Committee and an associate professor and graduate program director for the Department of Space Studies at the University of North Dakota. “The law that was passed in the United States says that if you dig something up and put it into your bucket, you can keep it and enter it into the stream of commerce.”

Still confused? Hanlon says the treaty and the mining law are so vague, they could be the future root of potential lawsuits.

“Does it apply to nonstate entities? What is the status of space resource utilization if you cannot claim territory or property in space?” Hanlon asks.

Dark matter

Space law has been around for decades, but it’s still in its relative infancy, Johnston says. It’s especially new when it comes to space tourism—and the laws surrounding regular people in space are also mystifying.

While celebrities and wealthy people have already started mingling with astronauts in space, the laws about this haven’t been fully developed yet, Dodge says. When it comes to the nonastronauts in space, one of the big issues surrounds liability. Insurance will currently cover any injuries to people on the ground hurt by space launches (for example, if something flies off the spaceship during the launch and a person is hurt, liability insurance kicks in, even if the nonastronaut is the cause of the issue that hurt the person on the ground)—but it’s less clear what would happen if a nonastronaut caused a problem in space, he says.

“Congress wants the fewest quantity of laws possible,” Dodge says. “They want to encourage private operators and people to create new companies and get new inventions into outer space. If there are too many laws up front, it could preclude investments.”

Still, they may have to make a few more laws stat—especially if governments want space tourism to continue. Companies are attempting to create megaconstellations of thousands of satellites, which has become a space law issue involving the FBI. According to Dodge, there are currently more than 2,500 satellites actively orbiting the earth, and this number is growing monthly. These satellites cause space debris, and according to Johnston, there are approximately 100 million pieces of space debris in orbit, and that number is increasing due to Kessler syndrome (in which collisions create debris creating a chain reaction of collisions and more debris). Johnston warns that any new law must address space debris, otherwise space tourism may be grounded before it truly ever takes off.

Dodge adds that the FCC “recently passed regulations stating that when you launch a satellite, you need a plan to limit the amount of debris.” A 2021 study in Scientific Reports found that satellite megaconstellations are very risky for the earth and for outer space. The study says that satellite reentries from the Starlink megaconstellation alone may deposit more aluminum to Earth’s upper atmosphere than meteoroid damage, making them the dominant source of high-altitude alumina. “Using simple models, we also show that untracked debris will lead to potentially dangerous on-orbit collisions on a regular basis due to the large number of satellites within megaconstellation orbital shells,” the study says. There are currently no binding international laws for these megaconstellations.

Expect attorneys to address these issues—and others we haven’t even conceived—in the near future, Hanlon says. Within the decade, she expects that every aspect of a law practice will be touched by space activity, whether through evidence gained from Earth observation satellites or simply because our critical infrastructure relies heavily on space hardware.

“But right now, space lawyers will be asked to review payload contracts, radio frequency licenses and launch licenses,” Hanlon says. Space lawyers’ technological capacities continue to snowball, and one of their biggest challenges is to work with regulators to understand the technology and to determine how and if it can or should be regulated.

The sky is definitely not the limit.

This story was originally published in the December 2021/January 2022 issue of the ABA Journal under the headline: “Blast Off: As outer space becomes more accessible, space lawyers will be in greater demand.”

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