Who Made You Boss of the Universe?

There was a time when visionaries and dreamers alone imagined humanity could find great knowledge, riches and adventure in outer space—and were routinely belittled by mundane society for doing so. Now that entrepreneurs are making space more accessible and tapping into its potential, everybody seems to want a piece of the action. Government agencies are elbowing themselves to the head of the crowd to manage a burgeoning industry they once neglected, even benignly.

Oblivious—or heedless—of the fact that such neglect itself gave rise to today’s increasingly lucrative private space-launch economy, governments are doing what they do, often prodded by nongovernmental organizations (NGOs) or other parties seeking to exert influence for their own purposes. Among the more outlandish is a recent assertion by Indigenous peoples that they be granted a veto over certain lunar landing activities because their ancestors viewed the moon with particular reverence. Undoubtedly, other cultures professing unique adoration for celestial objects, will also demand similar rights. And as the sun rises, government regulators will board their chariots to champion them.

On the other hand, the argument for regulation is not unreasonable. After all, spaceflight can damage life, property and the environment, on Earth as well as above and beyond. Toxic runoff from launch facilities, the potential for debris falling downrange, orbital junk, crew safety, electromagnetic interference, radiation risk, increased light pollution from satellites, reentry of launched objects and possibly weaponized payloads are all deserving of some measure of national and international oversight. It seems like common sense to say that too much can go wrong to allow an “open range” approach to space development. The question, as always, is one of degree.

Hold on There, Partner

Robert Zimmerman, space and technology analyst, author and creator of the website Behind the Black, not only rejects the so-called common sense of many of these concerns, he says regulations and interventions intended to mitigate these issues will throttle spaceflight as a growth industry. Moreover, he bristles at the notion of the government—or anybody else—“allowing” space entrepreneurs to pursue their goals in any way they wish.

“We have given ... government a limited power to do certain things and we have allowed that to get flipped on its head,” Zimmerman says. “NASA gave us the SLS [Space Launch System], which was designed to simply be a jobs program; building endlessly, for gobs of money, a rocket that would fly rarely.”

To his point: The Space Launch System was authorized in the George W. Bush administration, and billions of dollars later, it has flown just once. The program is the poster child for government-designed space exploration in the wake of Apollo and the Space Shuttle. Private enterprise moved to fill the void, as it will if left to devise and execute its plans in the absence of “allow.”

The source of authority for regulating space activities is nebulous. While various international legal frameworks exist, notably the United Nation’s Outer Space Treaty dating from 1967, these typically reflect aspirational projections for the use of space absent any contemporary capabilities for doing anything practical out there. The Outer Space Treaty, for example, says that no nation can own anything in space (including regions of space, like Lagrange points) even if it occupies them, and that space must be developed for the common benefit of all humanity. It’s full of sentiments like, “Astronauts shall be regarded as the envoys of mankind,” and that sort of thing. At the time, when it signed the treaty, the United States barely had the capability to get people to the moon and back alive. And NASA was ahead of the pack.

As capabilities improve, expect legal frameworks to evolve. An example is the Artemis Accords, a set of principles developed by the United States in 2020 that importantly address the use of resources acquired in space. The agreement, which many countries have subsequently signed onto, recognizes that complex and extended space missions will require the gathering, processing and use of resources in space regardless of what other countries or NGOs may think about that. Moreover, in 2016 President Barack Obama signed a law saying that space mining operations are entitled to keep the fruits of their labor.

Critics note that such laws and policies run counter to the spirit and even the letter of the Outer Space Treaty’s multilateral philosophy. At the same time, it’s easy to proclaim that everybody owns everything—and its corollary: Nobody owns anything—when the objects at issue are beyond reach. Once water or Helium-3 or platinum come to hand, rules will be ignored or changed to fit the new situation.

When it comes down to it, the people who rouse themselves to go after opportunities in space will end up having the biggest say in what goes on out there. As much as this is true, many say it isn’t right.

Brian Weeden, director of program planning for the Secure World Foundation, an NGO focused on policies for promoting peaceful and sustainable uses of outer space, says the United States and other spacefaring nations must cooperate on international frameworks or else access to space for everybody will be imperiled. This means that some aspects of the laissez-faire, “Anglo-American” entrepreneurial perspective that has been so successful across so many industries for centuries will have to be reined in.

“Here’s the crux: Space is different than everything else,” Weeden says. “Typically, we are used to letting companies essentially do whatever they want with the government having a limited set of regulatory powers to deal with safety and bad things that might happen. Space is different because the whole world shares the risk.”

Much like pollution that crosses a country’s borders or overfishing on the global commons of the world oceans, space launch activities have international implications. The aforementioned effects of launching rockets into space with attending hazards to those on the ground and from orbital debris impact the well-being of other nations.

“Under international law, the United States and every other country that’s signed the Outer Space Treaty is responsible to authorize and provide continual supervision of their national space activities,” Weeden says. “And they are liable for any damage or any bad things that those space activities cause.”

One of the problems, he adds, is that we don’t even know what some of those bad things may be down the road. Some of the major unknowns involve the atmospheric effects of space launches. That’s because solid rocket boosters spew soot and toxic exhaust. Even the liquid fuel rockets using basically hydrogen and oxygen and venting water vapor may not be such a big deal now; but if launches are scaled up a hundred times or more, as is envisioned, that may change.

“There is some research that shows even the cleaner burning rockets punch big holes in the atmosphere that last for several hours,” Weeden says. “Could this be a problem? We don’t know. And then there is the reentry of satellites and rocket stages, which evidence shows is adding alumina oxides to the upper atmosphere and we don’t know whether that’s a problem or not.”

Ultimately, Weeden concludes, the spacefaring nations are obligated by international law and as well as prudence when dealing with unknown factors to oversee and regulate space activities in their respective countries.

Knives Out?

The United States has the regulatory bureaucracy to provide continual supervision over whatever it wants. The questions are, which agency, if any, should have the authority to regulate the space industry and, would the applications of their oversight always be fair and proper?

Consider the case of Starship. November of last year saw the second flight test of SpaceX’s Starship prototype space vehicle paired with its Super Heavy booster—and yet another failure. Undaunted, company chief Elon Musk deemed the result useful and said the company would learn by studying what went wrong—and right—during the launch effort. Back to the drawing board. The third time is the charm.

SpaceX may be singular as a modern aerospace company in its eagerness to throw prototypes at a problem. Under Musk, with his deep pockets and aggressive spirit, this approach has proven successful. The company’s Falcon-series rockets are the industry’s most successful launch vehicles, accounting for nearly as many launches in 2023 as the rest of the world combined. This success was built on the rubble of early failure, not only of the launch vehicles but the system of reusable rockets and boosters that have now contributed so significantly to bringing down the costs of sending payloads into space. Eventually, reusability will be the rule rather than the exception. China is testing a reusable rocket design.

As a private company, SpaceX has only itself and investors to answer to financially for the tempo of its Starship test flight program and the money it spends. There are no shareholders to placate. Unlike the rockets specifically designed by and built for NASA, taxpayers are not on the hook for the expense. On its face, this is how innovation is supposed to work in America.

Musk predicted a third Starship test flight could have flown by the end of 2023. This may have been bravado; the Federal Aviation Administration (FAA) was unlikely to have issued a launch license by then, saying it must investigate the causes of the failure. Indeed, after the April test, Musk claimed SpaceX was ready to go for another shot in August or September. However, the FAA had withheld a launch permit until it concluded an investigation of that failure and SpaceX complied with a list of requirements the agency imposed.

According to Robert Zimmerman, the only reason the FAA should be involving itself in experimental rocket programs is to make sure there are no other aircraft in the vicinity or downrange of the launch that could cause problems. He says SpaceX and other U.S. private rocket pioneers, such as California-based Rocket Lab, are in danger of becoming entangled in red tape as federal regulators insert themselves more and more into the innovation process. While the FAA has both the authority and competence to investigate airliner and private aviation crashes, Zimmerman says it should not have authority and does not have competence to investigate failures of experimental rockets.

“Who knows anything about SpaceX’s rocket and is qualified to approve or disapprove launches?” Zimmerman asks. “Not the FAA. They’re not qualified. It’s an experimental rocket. They don’t know anything about it. They’re totally dependent on SpaceX’s own investigations. Historically, when you get an experimental FAA license, you’re allowed to fly with great freedom to test what you got. When SpaceX has finished its analysis and says it’s ready to launch again, that should be the criteria. The FAA only has to make sure the launch doesn’t interfere with air traffic.”

As Zimmerman sees it, the problem is the mission creep that inevitably attends regulatory enthusiasm for exercising authority. SpaceX claims it wants to fly Starship Super Heavy test flights much more often than the FAA will let it. Meanwhile the U.S. Fish and Wildlife Service has imposed its own holds on Boca Chica launches in the past, citing a nearby wildlife refuge. To add insult to injury, the Department of Justice has sued the company for not hiring enough migrants and asylum seekers. The icing on the cake is a National Labor Relations Board suing SpaceX for its firing of unruly workers.

While many of these legal restraints on the company and its activities have been rigorously opposed and countersued, it is difficult to argue that, like gravity, government regulatory bodies are not exerting a downward pull on future development efforts. And if some of this regulatory activity has occurred because the Biden administration has an ax to grind against the often-critical Musk’s ownership of the company formerly known as Twitter, it may be missing the forest for the trees.

It also demonstrates the cynicism many feel toward government regulators in general. Can politicized federal agencies be relied on to exercise and maintain their appropriately authorized oversight duties in an unbiased and nonpartisan way, for the good of all rather than the ruling party’s constituencies?

Who Made Who?

The terrible Stephen King-directed killer machine movie “Maximum Overdrive” produced an excellent AC/DC song that asks the important question: Who turned the screw? The only reason there is a vibrant space-launch industry that needs regulating is because of the efforts of entrepreneurs like Musk, Richard Branson, Jeff Bezos, Eren and Fatih Ozmen and others. Billionaires with deep pockets are trying to make practical access to space possible to enrich themselves and others, even as the trailblazing example of Space Race governmental competition burned down with end of the Cold War and the continuation of cost-plus contracts.

The United States today is experiencing a renaissance of space-launch activity, both for exploration and business, but only thanks to Musk and these other new players. Blue Origin supplied the rocket engines for the first launch of a Vulcan rocket[MH1]  built by Lockheed Martin and Boeing’s United Launch Alliance (ULA) destined for the moon, although a propellent failure in the payload made a lunar landing impossible. The lunar lander itself is a privately built craft developed by Astrobotic that would have landed government and private payloads on the Moon. Other private lunar lander missions are coming. Bezos’ Blue Origin has other customers for the now demonstrably successful BE-4 rocket engines it supplied to ULA, including its own New Glenn heavy lift launch vehicle, which may fly by the end of 2024 after years of delays.

While private launch companies have stepped in to deliver what government-driven organizations pioneered and eventually made moribund, the successes of these new space enterprises owe much to a series of changes in government regulations that unfolded throughout a succession of presidential administrations (both Obama and Trump supported space privatization policies). These changes enabled the government to get out of the launch business in favor of those who could do it better and ultimately allowed government payloads to fly on open-bid private rockets.

The Secure World Foundation’s Weeden says a key to moving forward with the spirits of both international law and entrepreneurship intact is polycentric governance[MH2]  (an interest of the late Mercatus Center scholar, Elinor Ostrom). As the name suggests, the concept rejects the idea that a single top-down layer of governance—or bottom-up lack thereof—is not going to be able to solve the whole problem.

“It’s going to have to be a collaborative process between all the users of the resource and those providing oversight and those that are monitoring all of this,” he says. “There’s going to have to be multiple distributed layers of authority, each being able to tackle something different.”

This would be great, if we could trust the powers that be to operate in good faith. In the meantime, our future in space seems more likely to be realized by visionaries and dreamers who are also billionaires—but only if the government lets them.