Last Week in Tech Policy Vol. 27: Space, the Final Frontier…

(by Savannah Schaefer, Colorado Law 3L)

In policy circles, we spend a lot of time talking about unintended consequences and how new pieces of legislation or regulation balance economic efficiency against other pieces of the public interest. Often, we see aspects of old issues recycled when new technologies and circumstances emerge and must determine whether and to what extent new issues require new treatment.

As we turn to space—the final frontier—and encourage our peers to boldly go where no one has gone before, we must consider just how different extraterrestrial expansion is from continental and what lessons to keep in mind as we launch.

On November 10th, the Senate passed the U.S. Commercial Space Launch Competitiveness Act (H.R. 2262), a bill, which, among other things, aims to grant property rights to private entities able to mine abiotic materials in space. The Act allows private companies that are able to access water and iron (the “fuel of space”) and precious metals—like the platinum and gold found on asteroids—to own those resources, while carefully avoiding allowance of any sovereign claims over celestial bodies.

House champions of the bill praise it as representative of American exceptionalism. Chairman Lamar Smith stated, “This bill will keep America at the forefront of aerospace technology, create jobs, reduce red tape, promote safety, and inspire the next generation of explorers.”

Skeptics  worry, however, that the Act conflicts with the contents of a 1967 U.N. Outer Space Treaty, which reads:

“Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”

The Act, however, carefully asserts:

“Any asteroid resources obtained in outer space are the property of the entity that obtained them, which shall be entitled to all property rights to them, consistent with applicable federal law and existing international obligations.”

While H.R. 2262 defines somewhat narrowly the “space resources” that are up for grabs, noting that they include water and minerals, but not living things, and specifies that “by the enactment of this Act, the United States does not thereby assert sovereignty or sovereign or exclusive rights or jurisdiction over, or the ownership of, any celestial body,” the extent to which these two documents clash remains in question.

Planetary Resources, a space mining company backed by Google and film-director James Cameron, lobbied heavily in support of the bill. The company argued that mining on asteroids would enable travel further into space with less tax on Earth’s resources, while also jump-starting a massive new industry. While  the amount of fuel necessary to launch a rocket past Earth’s gravitational field currently is more than ten times the amount necessary to travel equal distances beyond it, utilizing mined resources in space would allow companies to build smaller, more efficient rockets and carry far less fuel with them (much like cars and gas stations on a road trip, the company suggests). Planetary Resources, along with other proponents of the bill, tout the Act as a gateway to private enterprise in space.

Interestingly, proponents have compared the bill to the Homestead Act of 1862, paralleling the two documents’ importance in incentivizing industry and territorial expansion. Such a comparison, however, seems to beg the question: does the 2015 Space Act expose us to similar unintended consequences? While the bill excludes living entities from its realm of legal acquisitions, little mention is made of the environmental, social, or other potential impacts a finders-keepers policy might engender. While such policy almost certainly favors the immediate economic interests of the United States and other countries with developed space-related industries, young and developing nations could be increasingly disadvantaged.

So what do we think? Are private property rights for space mining necessary to incentivize commercial space flight and other space related industries? Does this new act run too far afoul of U.S. treaty obligations? Do we risk repeating the same mistakes that frontier doctrine committed in the past? Are there better ways to structure the space mining industry to ensure that we can all live long and prosper?